Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 24th January 2022 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

93: Clause 20, page 18, line 26, at end insert—
“(d) the impact on the diversity of provision of health and care services, including social enterprises, independent providers and charities in that area.”Member’s explanatory statement
The amendment would place a duty on NHS England and Integrated Care Boards to ensure that there is a diversity of provision within local areas including social enterprises so that there is a range of choice and expertise available to local communities.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it has been rather a long wait, though I doubt that we shall spend as much time on this group as we did on the last. I do not pretend that the issue of procurement is as important as that of the workforce; none the less, when we come to Clause 70 there are some very important considerations.

I should say that, although my own two amendments are narrowly focused, in opening this debate I must register with the Minister concerns about the open-ended nature of the power to be given to Ministers under this clause. In essence, through secondary legislation, the whole procurement regime can be changed at the whim of an executive order. Services could be privatised or outsourced or whatever Ministers choose to do with them subject to regulations. It seems rather extraordinary that we are taking out the marketisation sections from current legislation only to replace them with an open-ended power and a procurement regime when we simply do not know what it will be.

I remind the Minister that the Delegated Powers Committee has been very clear that Clause 70 needs very careful attention. As it says,

“initial consultation has been carried out by NHS England on the content of the”

procurement regime, but

“full analysis has not been completed and there has not been time to produce a more developed proposal.”

The Delegated Powers Committee concluded:

“We do not accept that the inclusion of regulation-making powers should be a cover for inadequately developed policy.”


I hope that the Minister, when he winds up the debate, will say something more about this and how the Government intend to respond. I think it very unlikely that we will let this Bill leave this House with this clause unaltered. Indeed, I note that the noble Lord, Lord Lansley, intends to oppose that Clause 70 stand part of the Bill.

My two amendments are probably the easiest that the Minister will have to deal with in this group and I hope that, for once, he will just get up and say that he accepts them both because they are very sensible and helpful to the way in which one wishes to see the NHS develop commissioning arrangements at the local level. The first, Amendment 93, requires NHS England and integrated care boards to consider the impact of their decisions on the diversity of provision for health and social care services, particularly social enterprises and charities.

I just want to talk about social enterprises: they are set up with a social mission and deliver that mission with all the income that they receive. Over the past 20 years, they have become an ever more important part of delivery of healthcare services. My understanding, from Social Enterprise UK, is that there are 15,000 social enterprises delivering health and care services in this country and that there is very strong evidence to suggest that these organisations are very good at what they do—often better than the alternatives. Indeed, according to a review of public service mutuals, a form of social enterprise, commissioned by DCMS in 2019, these organisations are developing high levels of productivity and better outcomes than their peers and the private sector. Their productivity has increased 10 times faster than that of the rest of the public sector over the past decade. Why? They have done it through innovation: by listening to communities and focusing on their social mission, social enterprises have been able to prepare to make changes to service delivery that other providers have been unwilling to do. As a consequence, a report in 2020 by the King’s Fund described social enterprises as

“‘engines of innovation’ within health and care”.

The Bill as it stands does not provide any duty, responsibilities or guidance for integrated care systems or NHS England to consider social enterprises within their activity. My understanding is that, because we already have these shadow ICBs, it is being interpreted at local level that there is not a future for social enterprises within local systems. There is a risk that decisions are now being made by these shadow organisations, which have no statutory being at all, that there will be a reduced role for these social enterprises in the future. That would be a tragedy, and I must ask the Minister to look at my amendment. It is very innocuous: all it asks ICSs and the NHS to do is to consider the impact of their decisions on a wider provider lattice. He could go further. It would be very simple for a message to be sent down the service from this debate to say that they got it wrong about social enterprises and they should indeed be thinking of commissioning more services in the future from there.

My Amendment 211 is linked to it. It deals with social value and how they should be embedded into procurement processes by integrated care boards. The definition of social value is the process by which public bodies seek to maximise the additional social, environmental and economic outcomes of the money that they spend. The coalition Government in 2012 supported the passage of the Public Services (Social Value) Act 2012. The adoption of the Act in the NHS has been very patchy indeed. I shall not delay the Committee by going into the details, but it is very disappointing. All my amendment would do is put a simple duty on NHS England to create guidance and ensure that social value is clearly understood across the system. It would be only guidance: it surely could not be a problem for the Government to endorse their own policy on social value in the NHS. I hope that the Minister will be sympathetic. I beg to move.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

The noble Lord, Lord Howarth, is taking part remotely and I now invite him to speak.

--- Later in debate ---

[Lord Kamall (Con)]

As the noble Lord will recognise, when I was appointed to this job, I did say that I wanted to consult as many previous Health Ministers as possible, as well as people who have worked in the field. It is clear from this debate that more consultation and discussion are needed, so I would welcome noble Lords’ advice. On that note, I beg that Clause 70 stand part of this Bill and hope that the noble Lord will withdraw his amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the hour is late. We cannot have the extensive debate that we probably require. I shall be very brief. I should have declared an interest as president of the Health Care Supply Association, the NHS procurement professionals.

On social value, I am very grateful to the Minister because he said that guidance will be issued to the health service on this, which is gratifying. On social enterprise, my noble friend Lord Howarth, the noble Lord, Lord Warner, the noble Baronesses, Lady Bennett and Lady Walmsley, and my noble friend Lady Thornton of course, all referred to the value of social enterprises. The Minister is not convinced that we need to put anything in the Bill. The point I need to put to him is this: it is clear from intelligence from the health service what the people running what I call the shadow ICBs want. I do wonder what we are doing legislating when obviously, everything is up and running; it is very difficult to know why we are here tonight debating these issues. Clearly, the NHS wants it, so it has got it and it is Parliament’s job, presumably, to just legitimise what it is already doing.

Having said that, these integrated care boards believe that social enterprises are not to be invested in in the future. So, my appeal to the Minister is this: fine, do not put it in the Bill, but please get a message out to the 42 ICBs telling them not to be so silly as to think that they should carve social enterprises out of the new regime.

More generally, on procurement, it is very interesting to be debating with the noble Lord, Lord Lansley. We fought tooth and nail for days on Section 75 of the 2012 legislation. Along come the Government, now saying, “Oh, we’re going to get rid of it. We don’t know what we will replace it with, but it is all right because we can have some negative regulations which mean we can steam it through without any scrutiny apart from a desultory debate as a dinner-break business sometime in the future. Oh, and by the way, there’s procurement legislation coming along too, but we can’t tell you what will be in there.”

Somehow, between now and Report, collectively we need to find a way through. I confess to the noble Lord, Lord Lansley, that I am rather pleased to see Section 75 go. However, something has to be put in its place, or we will just leave the NHS to get on with it and await future regulations and legislation. One thing for sure is that the idea of leaving the Bill with Section 70 and not even accepting the noble Lord’s sensible suggestion of the super-affirmative procedure is quite remarkable, and clearly it will not run. Having said that, I beg leave to withdraw my amendment.

Amendment 93 withdrawn.