Health and Social Care Bill
Lord Greaves Excerpts(13 years, 1 month ago)
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Lord Beecham
My Lords, these are probing amendments: as the debate has shown, there is a great deal to probe. I hope that when the Minister replies, he will be able to answer some of the questions and give more details of the thinking that underlies the Bill as it stands, and how it might be carried out in practice.
The body that we are talking about will have—as the noble Lord, Lord Harris has pointed out—an enormous budget and enormous responsibilities, both nationally and extending to localities. It will be responsible not just—just!—for commissioning general practice throughout the country, as the noble Lord, Lord Hunt reminded us, but also for a range of other services which will effectively be delivered locally. Yet in terms of the structure, composition and governance of the board, this Bill is about as skeletal as I imagine is the specimen that will greet first-year medical students at their first anatomy lecture. It needs flesh on the bones. There are a number of suggestions here; I have rather too many suggestions and I plead guilty to having advanced only some of them, but we clearly need a view about how the board will work and who will serve on it. I concur with the views of the noble Lord, Lord Harris, in relation to the appointment of the chair of HealthWatch England as proposed by the noble Baroness, Lady Jolly, as a member of the board. That person is likely to be conflicted: part of the job of HealthWatch will be to look at the operation of the board in an objective way. It may be that an attendance, as he suggests, would suffice.
Although I put down the amendment about the Chief Medical Officer being a member of the board, I can see the logic of the suggestion of the noble Lord, Lord Harris, that the Chief Medical Officer should attend without necessarily being a member of the board. I am temperamentally averse to mixtures of executive and non-executive directors. In the local government sphere, I never felt very comfortable with chief officers voting alongside elected members, but I suppose that members of this board are not going to be elected: they are going to be selected. I therefore think that it is sensible to have the best advice possible available to the board in the way that the noble Lord, Lord Harris, has described.
In terms of public health specialism, I think there needs to be a public health specialist—but not necessarily a serving public health specialist. I see the noble Earl, Lord Listowel, has tabled an amendment calling for the appointment of a former director of children’s services. Without necessarily agreeing that that particular post should be designated, the concept of somebody with that experience—not necessarily being a serving member and therefore not conflicted—might well appeal. It is crucial—given that we are now going to have public health delivered in a very different way from what we had before, and basically rightly so, though in a complex structure that will involve the Secretary of State, the Commissioning Board and local government as well—that there should be a public health specialist of some kind serving on the board. I hope that the Minister may indicate a degree of sympathy with that.
As to the total size, I am a bit ambivalent about that, too. It clearly needs to be a working board and therefore cannot be too large; it cannot possibly reflect every conceivable interest. I agree with noble Lords who said perhaps it would be a mistake to prescribe the number in the legislation. That is a matter that could well be discussed later by the Secretary of State, no doubt having taken views and not least the views of the Health Select Committee in another place.
I hope that we can make some progress tonight in identifying issues which the Government will look at sympathetically and bring back on Report. If they do not, then at least those of us who want to press points will have an opportunity of doing so.
Lord Greaves
My Lords, I have for most of this Committee so far been listening to and reading what people have said and have been astonished, as I always am, by the immense amount of expertise and distinction there is in this House. There are all the professionals, and there seem to be more former Health Ministers in this House than in any other place that could be gathered together. Most of the debate so far has been about high-level, national-level principles and structures, and we are now moving on to the area that I have been trying to get my mind around since I first obtained a copy of this extraordinarily huge Bill. That is the new structures that are being set up at all levels and how they are all going to work together.
At Second Reading, I laid some claim for my party for some of the improvements that were made to this Bill after the pause in the House of Commons, but one thing that certainly happened to the Bill after that pause is that it became more complex as the number of different organisations and bodies became greater. The need for this House is to sort out how this new galaxy, or kaleidoscope, of new bodies within the health service are going to relate to each other and how it is going to work—I use the word “work” in a neutral sort of way—how it is going to happen in practice and how they are going to relate to those bodies which continue to exist, such as the hospital trusts, the PCTs, the strange clusters of PCTs that will stagger on for a certain amount of time and then disappear by some means that is not completely understood yet and, of course, local authorities and the whole of the voluntary and private sector involved in healthcare.
Lord Hunt of Kings Heath
Can I say how much I welcome the noble Lord, Lord Greaves, to our Committee? We have missed him. Now we have turned our attention to detail, his particular expertise comes to the fore.
On bureaucracy, I have tabled this amendment because I have genuinely been a passionate fighter of bureaucracy. That is why sometimes as Ministers we have to intervene in the bureaucratic affairs of the health service. The noble Earl may find that he himself has to do so. My concern is that, partly because of the listening pause, there is now a plethora of organisations to be established. Apart from clinical commissioning groups, we have commissioning support units—about which we have heard very little but apparently will be there—as well as the senates, the health and well-being boards, the clinical pathways and the national Commissioning Board. The regulators are likely to be given more power in the future: Monitor is being given more powers and, post Francis, there will probably be changes to the CQC and other regulatory matters. The risk is that, far from this being a streamlined process, it will be a very complex and bureaucratic one. I seek here merely to help the Government deliver their aims by encouraging them to restrain the cost of the whole exercise.
Lord Greaves
I was of course teasing the noble Lord in as pleasant a way that I could. This is another instance where Hansard ought to have a few smileys liberally littered round the text. The noble Lord made the same point, at slightly greater length, that I made when I referred to the kaleidoscope of bodies that we now have. An important job of this Committee is to sort out the relationship between all these different bodies before they are finally set up. We have got to do that absolutely vital job.
Subsection (2) of the noble Lord’s proposed new section “Duty to reduce bureaucracy” says,
“For that purpose the Board must exercise its functions … so as to ensure that at no time there exists more clinical commissioning groups than there were primary care trusts on 1 April 2011”.
That is a slightly different point, hitched on to his bureaucracy point. This is a vital question. Again, this will not appear in the Bill—it will not say that there will be X number of clinical commissioning groups—but, in general terms, we need to have clear in our minds when the Bill leaves the House how many clinical commissioning groups there will be and of what sort of size. This has evolved with discussion over the legislation. When the first proposals came out—when they were called GP commissioning groups because that is what they were—there was a feeling among many people throughout the country, the health service and among politicians that they might be quite small, or even that large GP practices might try and do it on their own. A lot of people were alarmed by this because they thought it would not be very efficient and it would not work. How on earth do you commission the kind of facilities which have to be provided, whether it is a local health centre or specialist clinical services, on a sufficient scale? The more people thought about it, the more it seemed that these groups had to be larger than just a large GP practice or group of GP practices in a smallish town.
The Government then encouraged GPs in particular areas to get together and co-operate to set up early-stage shadow commissioning groups. This happened and the Government issued a statement saying that a high proportion of the country—I forget what, but perhaps 70 or 80 per cent—was covered by these voluntary, shadow groups. These GPs quite rightly wanted to make things work in their area, whatever they thought of the legislation and changes. In my part of the world, it tended to come down to one commissioning group per second-tier or lower-tier district council area, in places like Burnley, Hyndburn and Pendle. Now, apparently because of pressure from above, people are talking very strongly about having—or having to have—a commissioning group on the same boundaries as the existing primary care trust. This would not be the cluster of trusts that is at the county level but at a sub-county level.
So in effect people are looking at the groups and saying, “What will be the difference?” What will be different will be the functions and the direct control of community services, which effectively has gone already to the hospital trusts. As for commissioning, it will be effectively the same body, probably in the same premises, controlled by different people. We need to understand this regardless of whether it is necessary to reduce bureaucracy or whatever, which is secondary, in a sense. Before we leave the question of the commissioning groups, which we will be talking about in great detail, we in this House need to understand the Government’s thinking about the future likely site of these groups.
Lord Hunt of Kings Heath
I am grateful to the noble Lord for giving way again. I think it is a very interesting point about the size of clinical commissioning groups. My amendment was simply a probe to get a debate on this. Is there not a tension here? In order to get CCGs dealing with strategic issues, they have to be pretty large and cover a large population, but, in order to get the interest of GPs, they need to be smaller because the GPs need to feel involved. In essence, there is a tension there. The approach of the previous Government of taking primary care trusts and encouraging more practice-based commissioning may well have proved to be a better approach. The risk with CCGs at the moment is that, when they emerge with a board, they will be so removed from the individual GP that the very purpose of setting them up in the first place, which of course was about controlling demand through GPs, will lose that essential aim.
Lord Greaves
There is a great deal of truth in what the noble Lord says. Looking at this from afar, I think that the Government have had to struggle with this tension. In order for the bodies to be serious commissioning bodies, commissioning not just for their patients individually or collectively but for the health needs of their area, they have to be sufficiently large. What will happen is that the GPs who sit on these new commissioning groups almost certainly will represent the GPs in the whole of that area, and they will have to be appointed by some democratic process representing the whole area—perhaps one from each area. I do not know how they will do it but that will have to happen at a local, practical level.
In my view, one thing that has bedevilled this debate is that the word “commissioning” has been used in two quite separate senses. One has been the idea of a GP commissioning services for his particular—
Lord Warner
I am sorry to interrupt the noble Lord’s flow, but I would like to press him a little further to give us some clue as to his thinking on this. My noble friend Lord Hunt gave us a snippet of history, but there is quite a lot more. We have been through a process where we have come down since 2002 from 300 PCTs to 50 or so PCT clusters. We have been on that journey because we found it extremely difficult to commission services effectively when there are very large numbers of PCTs covering small geographical and population areas. There is simply not the expertise to do that. Could he give the House some clue about where he thinks this is all going to end up? At the moment, in terms of starters for 10, we have about 250 of these clinical commissioning groups. I think it would be helpful to know where the members of his party and others who have argued for this stand on where the journey may end.
Lord Greaves
I am extremely flattered that the noble Lord, Lord Warner, thinks that I have the slightest idea where it is going to end up. I am doing exactly what the noble Lord, Lord Warner, and other noble Lords are doing—trying to get the Minister to give us some idea of that. We will be interested to see whether he gives that. Over the political lifetime of this subject, we have had constant changes. We started with bigger area health authorities and smaller district health authorities, going down to district level, and then going back to the area level, with the regional level having a greater or lesser influence. The fact is that this is a fundamental administrative difficulty—not a philosophical difficulty—for an organisation like the health service.
Lord Hunt of Kings Heath
From what the noble Lord said, why on earth did we not continue with PCTs and give them a kick up the backside to allow GP surgeries to commission more locally as well? Why have we gone through this?
Lord Greaves
I am not quite sure why the noble Lord is asking me that question. He is tempting me to make provocative statements in relation to the coalition Government of which my party is a member. I think that it is an open question and the answer can remain open. I am not in the mood to make provocative statements today. I might be tomorrow, and the noble Lord can come back to me then.
The point that I am trying to make before I finish, if the Labour Benches will not interrupt me just one more time—
The Archbishop of York
The Benches opposite are probably provoking you into some kind of statement because of your earlier comment that you were reputed to have influenced the Bill during the pause. Given that influence, why did you not go back to what was working?
Lord Greaves
It is our view that the original proposals were not working at all, and the proposals that we have now are better than the original ones. That does not mean to say that they are perfect, and it is the job of the House of Lords to check that the imperfections in them are removed before the Bill leaves your Lordships’ House.
The point that I was trying to make, which I will finally make once more, is that there is a real difference between the two meanings of “commissioning”. If you are a GP, you can commission services from an existing, static landscape or system of provision for your patients. However, commissioning services on a wider scale, commissioning the very landscape of services and the series of organisations that exist, whether it is deciding to put more money overall on a wide scale into one area of medicine and pulling back on others or just keeping the others going as they are, or whether it is financing capital projects—where to build new hospitals, new health centres or whatever it is—is very different indeed. You need bodies on a larger scale to do that. The idea that practices on their own or small groups of practices could commission that kind of undertaking on a wider scale is nonsense. You cannot rely on the market to provide them all because that will produce chaos and a lack of provision in many areas. That is why the original proposal for GP commissioning groups, which were to be quite small, simply would not have delivered at that level. The original proposals did not indicate in any way how that wider capital commissioning would take place.
Earl Howe
My Lords, this has been an excellent debate on a set of important issues, and I am glad to count my noble friend Lord Greaves as one of my staunchest supporters.
The NHS Commissioning Board is one of the key elements of our vision of a modernised NHS—a highly professional organisation, focused on quality and able to support clinical commissioning groups in delivering the best care possible to patients. I completely accept that these amendments were proposed with the best of intentions, to strengthen the way in which care is commissioned. However, in setting out why the Bill is drafted as it is, I hope that I can explain to your Lordships why I cannot accept them.
It will be key to the effectiveness of the board to ensure that it obtains sufficient advice and input from clinicians, public health experts, other professionals and those with relevant experience of the NHS—patients and the public—and that it has effective working relationships and arrangements with local authority government. We have stated our intention that there should be clinical and professional leadership on the board, but in terms of the legislative framework for the board it is an important principle to maintain that it should have autonomy of decision-making on matters such as its own membership and its structures and procedures, as far as possible, to determine how best to exercise its functions. This would include, for example, whether it has a vice-chair or a senior independent director, as Amendment 52B suggests.
One thing is absolutely clear. Members of the board will, in practice, need to have a range of skills, knowledge and experience appropriate to the issues faced by the board. Ensuring the right balance of non-executive members from a variety of backgrounds is key to achieving a successful board. But if the majority of non-executives were required to have a particular background, such as NHS experience, as suggested in Amendment 54, that might create an unbalanced board and effectively disqualify potential candidates from the private and voluntary sectors. I agreed with the most reverend Primate in what he said here. It is worth remembering that the board and its members will be expected to follow the seven principles of public life—the Nolan principles—one of which will mean that it must appoint a,
“well-informed choice of individuals who through their abilities, experience and qualities match the need of the public body in question”.
That sums it up very well.
A number of noble Lords made the point that if we require the inclusion of doctors and nurses or a public health specialist as put forward in Amendments 50, 52D, 54B and 56, what about representation on the board of dentists, pharmacists and allied health professionals? The list could go on. It would simply not be possible to accommodate all interests in the board’s membership adequately, and we would surely invite valid criticisms that one group is being prioritised over another. Nor would this be desirable from a Government’s point of view, given that the primary purpose of the members of the board is to hold the organisation to account. Nor, in my very firm view, would it be appropriate for a senior member of another organisation with a different purpose or remit, such as the chair of HealthWatch England, or indeed the Chief Medical Officer, to have a seat on the board, as suggested in Amendments 52C and 54A respectively. That could lead to a potential conflict of interest and confuse accountability. I agreed with the noble Lord, Lord Harris, on that point—although he is not in his place.
Of course, in practice, the board must have the freedom to determine how these varied and legitimate interests are best involved and represented in its work. The noble Baroness, Lady Murphy, was quite right—the board will want advice and expertise readily available to it—but that is a different issue from board membership. It is worth bearing in mind that the board will have the freedom to appoint committees and sub-committees as it considers appropriate, and this may prove useful to the board to bring in interested parties on specific issues.
A number of noble Lords asked about public health expertise. We are coming on to debate clinical senates, but one main reason for establishing them is to bring in this wider range of expertise in a way that would provide practical benefit. This would absolutely include public health expertise. We amended the duty to obtain advice to make this explicit. New Section 13J inserted by Clause 20 makes it absolutely clear that the board must obtain advice from those with professional expertise in,
“the protection or improvement of public health”.
There will be an interrelationship between the board and HealthWatch. The board must inform the body in writing of its response, or proposed response, to its advice; it must also have regard to the views, reports and recommendations of local HealthWatch.
My noble friend Lady Cumberlege asked about the size and membership of the board. The requirements in the Bill are that there is a minimum of seven members; the Secretary of State must appoint a chair and at least five other non-executives, so that is a minimum of six non-executive members. The non-executives must appoint a chief executive, who must be a member of the board. That is to say, there must be at least one executive member. Beyond that, they may appoint other executive members as long as the total of non-executives is always more than the total number of executives. The final decision on the number of other executive posts and the nature of their roles will need to be agreed with the chair and non-executive members, but it is envisaged that the other executive members besides the chief executive will include a nursing and a medical director, a director of finance, of performance and operations and of commissioning development.
All departments are required to ensure that appointments are open, transparent and made on merit. The Commissioner for Public Appointments regulates the processes by which Ministers make appointments to the boards of certain public bodies in England and Wales, and this will continue to be the case. It is not government policy to offer confirmation or affirmation hearings for public appointments, as Amendment 52A, tabled by the noble Lord, Lord Hunt, would require. These are ministerial appointments to make. The Cabinet Office maintains a list of posts that are subject to pre-appointment hearings by a House Select Committee. Ministers would consider the committee’s views, but such hearings are not binding and do not represent a power of veto. Your Lordships will be aware that we followed this process in the recent appointment of Professor Malcolm Grant as the chair of the NHS Commissioning Board.
Earl Howe
Not at all, my Lords. Of course we have confidence in the chairman. However, it is a little strange to hear from the noble Lord that he suddenlythinks the Secretary of State should not be involved in an area where he has a legitimate interest to make sure, on behalf of the taxpayer and indeed patients, that we have somebody who is capable of fulfilling the role of accounting officer. This is an important role for the Secretary of State to have.
Turning now to Amendments 57, 153ZA and 153B, let me assure the Committee, and especially the noble Lord, Lord Hunt, that we want to reduce the amount of NHS funding spent on back-office bureaucracy. That is why have made a commitment to reduce administration costs across the health system by one-third in real terms, saving £1.5 billion annually by 2014-15. All that money will be put back into patient care.
Clause 21 provides powers for the Secretary of State to impose certain limits on the overall expenditure and use of resources by the board and clinical commissioning groups, including in relation to administrative matters defined through parliamentary regulations, for the first time. The board has the power to set similar limits for individual CCGs. I see no reason to change this to a duty to do so, as Amendment 153B suggests. As the board will itself be responsible for overall administrative spending, I am sure it will want to use this power carefully. Within those limits, it should be for the board to determine how best to use the resources available to it, and to decide on its own structures and ways of working, and the number of staff that it needs to perform its functions effectively. It is not appropriate to set a staffing cap on an arm’s-length body.
How big will the board be? In a document called Developing the NHS Commissioning Board, Sir David Nicholson, chief executive-designate of the board, estimated that the board was likely to have 3,500 staff, carrying out the functions currently exercised by around 8,000 staff in the Department of Health, strategic health authorities, PCTs and a number of arm’s-length bodies that are being abolished, along with its own new functions. It will deliver these in a much more streamlined way.
Likewise, setting an arbitrary cap in the Bill on the number of clinical commissioning groups or on their expenditure on administration in comparison to PCTs is not, in our view, an appropriate means of controlling administrative costs. CCGs will be different from PCTs. They put local clinicians in charge and align clinical decisions with the financial and quality consequences. It is a little unfair of the noble Lord, Lord Hunt, to say that we are creating a complicated and bureaucratic system, and citing clinical senates and networks and health and well-being boards. Clinical senates and networks are not new organisations in their own right: they will be hosted by the board. Clinical networks already exist. Health and well-being boards are also not separate statutory organisations: they will be hosted by local authorities. We are abolishing a whole raft of bodies under this Bill, as I have said on previous occasions. It is important to bear that in mind.
I appreciate the concerns underlying Amendments 58 and 59. It is important that there should be transparency in all the workings of the board. This is why Schedule 5 to the Bill was amended in another place to include the board in paragraph 7 as a body to which the duty in Section 1 of the Public Bodies (Admission to Meetings) Act 1960 applies. This would include any annual meeting that the board may decide to hold. I say “may decide” because the Bill is clear, in new paragraph 12 in Schedule 1, that:
“The Board may regulate its own procedure”.
This would also apply to determining when it is quorate.
However, the Bill does include clear procedures around the publication of the board’s annual accounts and annual reports, to ensure transparency. The board must send its annual accounts to the Secretary of State and the Comptroller and Auditor-General. The latter must examine, certify and report on the accounts and then lay copies of the accounts and the report before Parliament. The Comptroller and Auditor-General is responsible for the audit of the accounts of all arm’s-length bodies. The board must publish an annual report and lay it before Parliament. The Secretary of State must then write to the board, providing an assessment of the board’s performance of its functions, publish the letter and lay it before Parliament. That gives an indication that there will be maximum transparency here.
Turning to Amendments 145A, 146A, 147ZA and 147C, I am afraid that I do not agree that it would be worth while to add the unusual burden of an explicit duty of consulting on a draft business plan. The board is already required in new Section 13P(2)(a) to involve and consult the public in planning its commissioning arrangements. Under a duty in new Section 13J, it is required to obtain appropriate advice to enable it effectively to discharge its functions, including the planning of how it will exercise its functions.
I hope I can reassure noble Lords that Amendments 147A and 147B are also not necessary. First, the duty to produce a business plan already provides for transparency by obliging the board to publish its plan. Secondly, while the Bill requires that the board’s annual report and annual accounts are laid before Parliament, that is part of specific processes for scrutiny of the board’s performance against the objectives it was set and the outcomes it has achieved. It is right and proper that the board should be held to account in such a way. Another clear recommendation by the NHS Future Forum was that the autonomy of the board needs to be respected. With this in mind, although it is right that the board should be required to produce a plan and for that plan to be published for all—including Parliament—to see, I am not convinced that it would be appropriate to have parliamentary scrutiny of the board’s plans or draft plans. The Bill places certain functions on the board, and it should be for the board to determine how it will seek to exercise these.
With regard to the questions asked by my noble friend Lord Greaves concerning the size of clinical commissioning groups, I respectfully suggest to him that we defer them to a later group of amendments, where this issue will come up and I shall be able to talk more about it. For now, I hope that the noble Lords are sufficiently reassured to be able to withdraw the amendment.
Lord Greaves
Before the noble Earl sits down, the question I asked about the specific role of the national Commissioning Board in relation to public health is one that he did not address. Can he tell us when he might address it?
Health and Social Care Bill
Lord Greaves Excerpts(13 years, 1 month ago)
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Earl Howe
My understanding is that that is the intention. The clinical commissioning group will wish to monitor the quality of service provided by its member practices and the outcomes that those practices achieve. As part of that monitoring we fully expect that safety will be a core component.
Lord Greaves
Before my noble friend replies to this group of amendments, I hope that I may ask the Minister a question on something on which I confess total ignorance. The Minister said that many of the functions of the National Patient Safety Agency in collecting statistical information would be transferred to the national Commissioning Board. What other functions does it have and what will happen to them?
Lord Greaves
My Lords, this is a very mixed bag of amendments. It is all about clinical commissioning groups but the issues behind such a mixed group are varied and it is quite difficult to get a coherent debate about them—although I do not criticise the Government Whips’ Office for attempting to push this Bill along a bit, given the speed it is going. I shall speak to three or four of these amendments. I totally agree with everything that my noble friend Lady Barker said, so I will say no more about that.
The noble Lord, Lord Whitty, started us all off with Amendment 59A, suggesting that,
“clinical commissioning groups … coincide with local authority boundaries”.
In his speech, the noble Lord modified it a bit further than his amendment seems to go but the basic principle behind it is extremely important, except that where there are large, sprawling counties in two-tier areas those counties are clearly far too big to be the areas of the commissioning groups. In a county such as my own, Lancashire, or North Yorkshire it would seem sensible for the clinical commissioning groups to be smaller than the county, although I would argue strongly that the county boundaries and the top-tier or the unitary authority boundaries should not be crossed.
Lord Warner
Is the noble Lord aware that some of the most effective clinical commissioning in the existing arrangements has been done by primary care trusts which are based on county boundaries?
Lord Greaves
I am not saying that there are no counties where that might be the appropriate arrangement. I am saying that in very large counties which, first, have a large population and, secondly, cover a large geographical area it would be excessive. Indeed, the situation in those counties which I just referred to is that the primary care trusts do not cover the whole county. All I am asking for is a degree of flexibility to allow appropriately sized clinical commissioning groups where the counties themselves would be too large. I declare that my own county is one such example. Indeed, as I said earlier, the areas that people are looking at as being appropriate for CCGs in Lancashire do not cover the whole county but the principle is absolutely right.
More important is Amendment 60, which is linked with Amendment 92ZZA, which my noble friend spoke to. Amendment 60 is about the code of conduct and was spoken to by the noble Lord, Lord Kakkar, and the noble Lord, Lord Patel, who I am pleased to see in his place again to hear what I have to say. As far as I am concerned, there is a real sense of déjà vu here, since in debating the recent Localism Bill—I do not know whether it is now the Localism Act—we spent many hours agonising over codes and standards of conduct for members of local authorities. I assume that when the noble Lord, Lord Kakkar, talks about a code of conduct applying to clinical commissioning groups he actually means that it applies to the members of those groups.
I do not want to say a great deal more about this now, because if I start I will be difficult to put down. However, there was a great deal discussed during the Localism Bill since the Government started off with the position that they wanted to sweep away the existing regime in local government for local authority members, which is based on the Standards Boards for England and which they thought—and I agreed with them—was highly bureaucratic and expensive, very legalistic and over the top. They wanted effectively to remove the standards regime altogether. As a result of intensive discussions in your Lordships’ House in Committee, on Report and at Third Reading, a compromise was arrived at—a lighter touch regime, which regrettably does not involve a national code of conduct but requires local authorities to have a standards regime, to adopt a code of conduct based on the Nolan principles and a published system which is transparent and applies to local authority members in their area. The two noble Lords putting this amendment forward might profitably spend an hour or two reading Hansard from the Localism Bill—I am sure they will enjoy doing so—and looking at the way it might be applied to clinical commissioning groups, different bodies but with the same principles. If they come back on Report to say what regime would be appropriate I am sure those of us who have been involved in the Localism Bill would be pleased to discuss it.
Amendment 175CA is the first of what I believe to be extremely important amendments put forward by the noble Lord, Lord Hunt of Kings Heath. It refers to representatives of district councils in two-tier areas. This is important because district councils in two-tier areas have actually been written out of this Bill and not included under the various definitions of local authorities, despite having a very important role to play in public health; they are housing authorities, housing standards authorities and environmental health authorities, and they provide all sorts of public health facilities such as leisure services. At present they often work closely with their primary care trusts on local projects to improve public health. It is an important issue in this Bill that will come up again later so I will not say any more now.
Direct representation on CCGs is not necessarily the most important issue here. If you have five or six district authorities in one CCG, as it looks like we will have, the representation would not be very direct anyhow. It is a crucial issue and one which casts its shadow over discussions we shall have in coming days. The really important parts of the amendment tabled by the noble Lord, Lord Hunt, are about the governance structures, how many independent members there may be on the CCGs and what role they will have. This is absolutely fundamental and links with local accountability. Should local accountability be to the patients in the area? Should it be through GPs? Should there be an understanding of some kind of accountability to everybody who lives in the area covered by the CCG? It is becoming very clear indeed that they are going to be area-based organisations responsible for the health of people in their area, despite the fact that some of the GPs will have patients who cross boundaries.
I think it was the noble Lord, Lord Hunt, who said that if it is simply left to the groups themselves to appoint their members and successors they will run into trouble. There are going to be many countervailing forces within this new complex system that we are to have at local level. Bringing those countervailing forces together might result in integration, but if there is not sufficient integration and accountability built into the system it will result in conflict. There will be all sorts of different bodies involved. People will be out on the streets campaigning and collecting petitions, and the general culture within the local NHS will too easily become one of conflict rather than of people working together for the best of the area. The composition of the commissioning groups, the way in which they work and their accountability are going to be absolutely fundamental to this. If, with the assistance of this House, the Government get it right, it could be very successful. If they get it wrong, we will all be back in two or three years trying to get a new system, and we really do not want to see that happen.
Lord Beecham
My Lords, when I spoke to the amendments concerning the NHS Commissioning Board, I said that the arrangements for governance, membership and the like were skeletal. In the absence of the most reverend Primate, I am probably safe to say that these arrangements for clinical commissioning groups are, by comparison, words made flesh. There is currently virtually nothing in the Bill that indicates how these commissioning groups would be constructed, what their membership would be and indeed what they should do.
Clause 22 contains provisions to make changes to the 2006 Act to provide for regulations as to the governing bodies of clinical commissioning groups. It is disappointing that nearly a year after the Bill was first produced we are debating the formation of clinical commissioning groups without any clarity at all—for example, in the form of draft regulations, if they are to be prescribed by regulation rather than the Bill itself—about how these groups should be composed. It is quite unsatisfactory. Clearly tonight we are not going to be voting on anything—these are probing amendments—but I hope that before we get to Report we can have sight of draft regulations to see what is in the Government’s mind and what changes might be necessary for the composition of these bodies. I have some sympathy with Amendment 101A, tabled by the noble Baroness, Lady Williams, but that assumes that it would be the function of the NHS Commissioning Board to ensure the composition of the commissioning groups. That does not necessarily follow and presumably we will not know until we see what the draft regulations contain.
A number of your Lordships have referred to the issue of coterminosity. In principle, it sounds fairly straightforward although in practice it looks a little less straightforward. There are different types of coterminosity. As I have said before, in my home town of Newcastle we have two clinical commissioning groups. In one sense they are coterminous because they are within the boundary, but on the other hand there are two of them. What if they do not agree? What if there are competing, conflicting ideas about what should be commissioned from the service in Newcastle? That assumes that you can treat the services within the city as confined to the city, but of course that is not the case. There are facilities in the city that are widely used across the region. Some of them are specifically regional centres. It may be that some of these services would be commissioned by the NHS Commissioning Board, but others would not. In this era of patient choice and the like—and one understands and supports that—there will be interest from other commissioning groups around the region in what goes on in the city, so coterminosity takes on a different flavour in that respect. In some parts of the country geography could make it difficult to envisage coterminosity. In a county like Cornwall or Devon, commissioning groups based primarily on general practitioners would be less likely to find it easy to work on the basis of coterminosity across the county area.
Health and Social Care Bill
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Lord Warner
Perhaps I may be allowed to deal with it, whether it is the first or secondary point—I do not have the report with me. The point that I wish to make is that we have the noble and learned Lord available to us in this House. If we are to have some arrangement to consider how we go forward on this, I think that it would be sensible to discuss the matter with him because he has sat on cases where the role of the Secretary of State has been a key factor in the courts.
Lord Greaves
My Lords, I discovered at the end of last week that it is possible to table an amendment as part of a group if the debate on that group has been adjourned and the first item in the group has not been put to the House. I did not know that that was possible until I asked. We can all do something new every day in your Lordships’ House. Therefore, I put forward a small amendment to question the use of the word “ultimate” in relation to the Secretary of State’s powers. My noble and learned friend Lord Mackay very kindly responded to that before I had a chance to speak to it.
I picked up this issue following comments made last week by the noble Lord, Lord Harris of Haringey, concerning “ultimate”. I went home, looked at dictionaries and did my own research, as did my noble and learned friend. I looked in the most recent and biggest dictionary that I could find, which was the Shorter Oxford English Dictionary. I also looked online, as one does nowadays, and spent a happy time looking at what online dictionaries say. If I can gently tease the noble Baroness, Lady Thornton, it is a much better exercise than looking at Twitter, if I may say so.
Noble Lords
Lord Greaves
My Lords, I am not going to reveal all my researches and enlighten the Committee on the meaning of “ultimate”, except to say—
Baroness Thornton
Perhaps I may say to the noble Lord that I very happily follow him.
Lord Greaves
If the noble Baroness wishes, I shall put lots of information about the word “ultimate” on the Labour Lords’ Twitter account. It might enlighten people more than some of the stuff that has appeared. I say all that gently and in a teasing way. I am now quite convinced that there are difficulties with this word and I merely promise the Committee that, if it reappears on Report, I shall be probing it again.
I thought that my noble friend Lady Williams of Crosby made a wonderful speech this afternoon. If we can get this right, it will do two things. First, it takes out the really difficult sting of part of this Bill. There are other issues in the Bill—I understand that, and we will debate them—but this particular issue threatened to wreck the Committee stage by setting it off on an entirely wrong note. If we can get this right it will help us in the next 12 sittings to have a proper Committee stage and not just political arguments.
The second point is that the wording, which was in the amendment tabled by my noble friend Lady Williams, from the present legislation has lasted for well over half a century—more than 60 years in fact. If it needs updating—50 or 60 years after the health service was founded—we need to find wording that will last another half a century as the basis for a publicly funded, publicly provided, available-to-everybody health service.
Lord Marks of Henley-on-Thames
These amendments have presented your Lordships’ House with a very difficult task. I join others in paying tribute to my noble friend the Minister, my noble and learned friend Lord Mackay, and to the noble Baronesses, Lady Thornton, Lady Williams and Lady Jay, for the wisdom they have shown in proposing to withdraw their amendments today.
I shall take just a moment or two of your Lordships’ time, if I may, to say why I think these amendments present the Committee with such a difficult task. The point was made by the noble Baroness, Lady Jay, in her speech last week. The central feature of this part of the Bill is to transfer, by Clause 10, the duty under Section 3 of the 2006 Act to provide the specific services carried out by the NHS from the Secretary of State to the commissioning groups. The challenge that we now have to meet is to achieve a balance between ensuring a decentralised structure and retaining a truly National Health Service for which the Secretary of State has ultimate responsibility. Given that transfer of provision, what the Secretary of State has to do—and all he can do—is to exercise his functions specifically accorded to him by the Bill. He has to exercise them in such a way to ensure that services are provided, however Clause 1(2) is ultimately worded, and to fulfil his duty under Clause 1 to promote a comprehensive service. That is why the crucial task of this Committee is to look at those functions and ensure that his functions and powers are up to the task and meet that balance.
A further point that I see as being of considerable importance is the proposed duties to provide autonomy by the Secretary of State under Clause 4 and on the board under the new Section 13F introduced by Clause 20. The problem is that the autonomy provisions in the Bill threaten to undermine the Secretary of State’s primary duty to secure the provision of services. We have to deal with what is at best tension and at worst inherent conflict between the Secretary of State’s overall responsibility, however expressed, and the duties to promote autonomy. That conflict must be expressed when we come to it, whatever we do about Clause 1(2).
I have some confidence that your Lordships’ House and the department will be able to achieve consensus and I remind your Lordships that not only have we heard from Labour, Liberal Democrat and Cross-Bench Peers in favour of amending the Bill as presently drafted, we have also heard from my noble and learned friend Lord Mackay and from the noble Lords, Lord Newton and Lord Mawhinney, both former health Ministers, who yield to no one in their commitment to and understanding of the NHS. There remains much to be done but I suggest that there is reason for optimism that we might achieve a resolution of all these issues that is effective in helping to secure the future of the health service.
Health and Social Care Bill
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Lord Greaves
This is the first time that I have spoken in this Committee and I repeat my interest in this Bill as a member of a local authority. The noble and learned Lord’s Amendment 4 refers to the “ultimate responsibility” of the Secretary of State and, thereby, accountability to Parliament. At the moment, Members of Parliament and noble Lords can raised detailed issues relating to the NHS—for example, hospitals in MPs’ constituencies that might be under threat of closure or change. Would the noble and learned Lord’s amendment allow that practice to continue?
Lord Mackay of Clashfern
In my clear opinion, yes. The idea of ultimate responsibility being with the Secretary of State is that his is not the first line of action under the statute, assuming it all goes through. Indeed, such statutory bodies already exist in the health service. They have responsibilities, but the ultimate responsibility, and that which brings the Secretary of State to account to Parliament, is the one that we want to fix on. It certainly means that he and his Minister in this House must account for the provision. I use that word; although he does not have a legal responsibility to provide, he has a legal responsibility of accountability to Parliament.
Health: Transmissible Spongiform Encephalopathies
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Earl Howe
My Lords, I am aware of emerging findings in that sense. We welcome, of course, any significant findings from research, and my department has indeed part-funded some of the studies that the noble Baroness may have been referring to. Future funding applications for new studies will be considered, as they always are, on a case-by-case basis. These decisions are dependent on, among other things, existing research in progress and the availability of funding. However, this is an interesting area.
Lord Greaves
My Lords, does the Minister agree that this country is a world leader in research into spongiform encephalopathies and the role of prions generally? Nevertheless, what we know about this area remains a great deal less than what we do not know. In those circumstances, will he answer what I think was behind the noble Countess’s original Question? Is the amount of money devoted to funding this research continuing at the same level, or is it actually being reduced?
Earl Howe
My noble friend asks a very good question. Over 20-odd years, we in this country have invested almost £0.5 billion in research into TSEs. That is a significant amount of money. The total amount is declining, but that is because in the early days it was important to invest in research to ascertain the pathogenesis of this condition in cattle in particular. We are much further forward in understanding how this disease develops in cattle. Nevertheless, as I indicated to the noble Countess, important questions remain unanswered, and I think we will continue to see this research funded well into the future.