Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years ago)
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Lord Alderdice
Sadly, just a little late, but there we are. The point is that when we think of medicine and nursing, we largely think about people who are educated at public expense—partly within the healthcare system and partly within the higher academic institutions—and employed largely in the health services but, in some cases, outside. In the area in which I work, I am afraid the truth is that the health service has not tended to provide the training for these people. In many cases, psychotherapists, counsellors, and HPC-approved people such as art therapists and music therapists, have had to train at their own expense because the health service has not provided the training. Some of them have worked in alcohol and drug addiction services, which the health service uses; or they have been used in suicide and self-harm services, which the health service uses; or they have been employed in general practice or in psychiatry and psychological services, which the health service uses. The health service, however, has not paid for the training of these people.
When I see amendments that refer to the maintenance of education and training, I see an ambition that is too small. I see a sense of self-satisfaction—of, “We’ve got to maintain what we’ve got because it’s the envy of the world”, rather than, “Some parts of the world have been moving substantially ahead of us, and we have to do some work to catch up with them”. Therefore, I welcome the fact that there are amendments on this front, but also that the Minister has gone a little further. He is not just talking about the health service; he is talking, in the words of this amendment, about anyone who may be,
“providing services as part of the Health Service”.
He is also saying that the Secretary of State will need a greater area of responsibility to ensure a wider provision of training.
Even within those services, which have been provided for the training of doctors and others, I have noticed in recent years that it has become more and more difficult for doctors to continue to provide for their own continuing professional development—which is an aspect of education and training—and to be free to provide supervision and training for others. The pressure is on them to provide the direct clinical service, and not to be free to commit themselves to education and training. I welcome these amendments, particularly that of my noble friend the Minister, which say, “No, the Secretary of State will have to undertake this”.
I come to one final matter because I know the clock is going along. The noble Baroness, Lady Finlay, raised concerns about those who are outside direct healthcare provision having to demonstrate that they are providing training. I understand that entirely, and there is a lot to be said for it. However, one needs to be a little careful. In my service, for example, it was clear that the NHS was not going to provide care and treatment services, and it was not going to employ more people. So the question for me was this: how did I find a way, by using a small number of experienced and highly trained people, of creating a multiplier effect out in the community? The only way I could do it was by taking on and supervising some people who were working in the voluntary, community and other sectors so that they then had the capacity to train themselves or anyone else. I reduced the amount of clinical service I was providing directly by taking them on and supervising them. Then, effectively, I could treat a whole raft of people whom the health service was not prepared to provide the money for.
If we make it a rule that those often small NGOs and charitable groups have to account for the training of all sorts of other people, one simply makes it impossible for them to make their provision. So I understand entirely what the noble Baroness has said and I have a great deal of sympathy for the sentiment here, which of course is what is important, but I would simply caution against making such a strict rule that it becomes impossible for smaller providers who are not able to provide training—and could not pay the extra to do it. That would prevent some of us within the health service using them to provide the range of services which, until now, the health service has not provided. The Minister has been given some credit for this and I commend him and other noble Lords who have brought forward this proposal for the Bill, but let us build on it and try to be ambitious about what we can say in this Bill, never mind the one that might be coming down the road a little later.
Lord Mackay of Clashfern
My Lords, I support the view that this is an extremely important issue. It is also extremely difficult and there is a lot to be done to get this right. I am an honorary fellow of two Scottish medical colleges. The contribution of Scotland to the training of doctors and nurses has to be kept in mind, and many other parts of the world also contribute to our NHS training, particularly at the graduate stage. It makes it extremely difficult to know how to cater for all the possibilities and I wish my noble friend every success in coping with this problem.
Lord Hunt of Kings Heath
My Lords, as this is the first day of a new stage of the Bill, I am required to start by declaring my interests. I am chair of the Heart of England NHS Foundation Trust, president of the Royal Society of Public Health, the Fluoridation Society and the Health Care Supply Association, consultant trainer with Cumberlege Connections and member of the advisory council of Easy Care.
The noble Lord, Lord Cotter, put his finger on it when he spoke of concerns about the quality of nursing care in some parts of the NHS. This has led in the past few months to considerable debate about the quality of education and training of nurses and indeed healthcare assistants. We will, of course, be coming back to that issue later in Committee. However, it has served to illustrate the critical importance of education and training of the healthcare workforce, be they doctors, nurses, AHPs or indeed even psychotherapists.
My Amendments 6 and 44 seek to ensure that the Secretary of State exercises leadership and responsibility in this area. This is very important in the context of the Government’s intention to create a much more diverse and disparate healthcare system in the future. It is essential that we protect the integrity of a national approach to professional education and training.
Earl Howe
I am surprised by that criticism because that is designed to capture trainees, who may not have a guaranteed job at the end of the day. If you simply refer to people who are already employed, you surely cut that cohort out of the equation. That is the purpose of those words, and I think they are entirely appropriate.
Lord Hunt of Kings Heath
I return to my noble friend Lord Warner’s intervention. In the case that he mentioned, it was I who was summoned before the Health Select Committee to explain what we were going to do about the problem. We intervened and told the SHAs that they jolly well had to sort this out. I do not see, under the arrangement that he is proposing, who on earth is going to be able to intervene.
As the noble Lord, Lord Owen, suggested, I suspect that an intervention against Health Education England will be very rare indeed, in terms of being able to be comprehensively assured that HEE had failed in its duty. Indeed, there is surely a risk that if you have a narrow quango, such as HEE, solely concerned with education and training, it will not be concerned about resource issues or about the duty of the Secretary of State to promote or assure a comprehensive health service; only the Secretary of State himself can come to conclusions about the overall direction of the health service; only the Secretary of State can balance the conflicting demands of education, service provision and resources. There is a great danger of seeking to push all these responsibilities offshore, because when trouble comes—and trouble will come—it will be the Secretary of State whom the public and Parliament will expect to intervene. At the moment, I cannot see how, under this system, if things go wrong, they are to be put right.
The Earl of Listowel
I take the noble Lord’s point, but I also think of the case of the Youth Justice Board, which has been a very successful non-departmental body and has improved outcomes for young people in the criminal justice system significantly. There has been concern from the Secretary of State responsible for criminal justice about the accountability of the Youth Justice Board, which is shortly to be wound up—well, depending on the views of your Lordships. The virtue of the Youth Justice Board is that it is a great centre of expertise in the area of youth justice. Its chair and board have great experience: one member of the board is a judge in the youth court, another is the chief executive of a children’s charity. The point is that there is great virtue in distancing the Secretary of State to some degree—for instance, the education, perhaps, of health professionals—and giving it, if the board is chosen well, to people of the right calibre.
The other side of that is that sometimes the Secretary of State will intervene too often and detrimentally to the education of health professionals. In fact, vesting authority in a board which is well chosen and has the full support of health professionals and keeping the intervention of the Secretary of State to the minimum may ensure better continuity in the education and training of the workforce and better outcomes.
Lord Hunt of Kings Heath
My Lords, surely there is a very great difference between the Youth Justice Board, the abolition of which is greatly to be regretted, and Health Education England. The Youth Justice Board has to embrace the whole of the responsibility for youth justice. What the noble Earl, Lord Howe, is suggesting with Health Education England is establishing a quango which will have a very narrow focus on education and training. The Youth Justice Board is concerned with that, but is also concerned with the provision of custodial places within our prison system. That is very different.
The Earl of Listowel
I thank the noble Lord. I can see the difference and I thank him for that helpful correction.
Health and Social Care Bill
Lord Hunt of Kings Heath Excerpts(14 years, 1 month ago)
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Lord Hunt of Kings Heath
My Lords, two minutes before time. I first declare an interest as chair of the Heart of England NHS Foundation trust, president of the Royal Society of Public Health, the British Fluoridation Society, and the Health Care Supplies Association, a health policy consultant and trainer with Cumberlege Connections and member of the National Advisory Council, Easy Care Foundation. But I speak for the opposition Front Bench.
The noble Earl enjoys huge respect in your Lordships' House. I well recall the many debates over four years that we have had across the Dispatch Box in which the noble Earl from this position cautioned me about the ill effects of the continuous restructuring of the National Health Service. Yet it is on the noble Earl’s watch that the health service is now facing the most turbulent time in its history. It is unsought after by patients, in direct contradiction of Mr Cameron's pledge of no top-down reorganisation of the NHS and is driving a coach and horses through the coalition agreement, as the noble Baroness, Lady Jolly, reminded us yesterday.
At the end of this wonderful debate, there is one question above all others that I and, I believe, many other noble Lords, want to put to the noble Earl. It is simply the question, “Why?” Why, when the NHS is facing this huge efficiency challenge of finding £20 billion, is it being diverted by this disruptive reorganisation? Why are millions of pounds being wasted on redundancies and the set-up costs of the new system? And why, when the Government inherited the NHS in the best condition it has ever been, are they tearing the whole service up by its roots?
I say to the noble Earl and the noble Lord, Lord Alderdice, that I did not recognise the health service that he talked about. We should go back to 1997, when we inherited the Conservatives’ Patient’s Charter. Noble Lords may recall that this aimed for a maximum of 18 months’ wait for hospital appointments. They could never achieve it, but we did—and more. Eighteen months tumbled to 18 weeks—a crumbling edifice was transformed into hundreds of new hospitals and there was a major emphasis on improving health outcomes.
We developed the Expert Patients Programme, national service frameworks to improve integration of services, and accessible services such as walk-in centres and NHS Direct. I do not apologise for referring to what my noble friend Lord Winston said about the verdict of the US think tank, the Commonwealth Fund. It singled out the NHS as top of the class, in the one country where wealth does not determine access to care, since it provides the most widely accessible treatment at low cost. I must say I was very disappointed that, when the noble Earl’s department was asked to comment on that assessment, instead of lauding the achievements of the NHS, it scratched around to identify problems. That was very disappointing indeed.
Yesterday, in his careful speech, the noble Earl sought to justify the Bill because of rising demand and treatment costs, and the need to improve efficiency and outcomes in areas such as stroke and some cancers. He is right; these are considerable challenges. But I repeat the question asked last night by his noble friend Lord Tugendhat: why did he not build on what he inherited? It was the Labour Government who enshrined patient choice in the NHS constitution; we introduced practice-based commissioning. Let me say to the noble Lords, Lord Kakkar and Lord Alderdice, that our disagreement with the Government is not about patient choice, it is certainly not about clinical involvement—I absolutely agree on the need for this—and it is not about devolved decision-making. My whole argument is with this expensive and bureaucratic reorganisation that they have determined on.
We all watched with interest the listening exercise and the deliberations of the NHS Future Forum, led by Professor Steve Field. It is true that the Government produced loads of amendments at a late stage in the other place. The problem is that those amendments, when combined together, proved to be of little substance. Let us take the Secretary of State’s responsibilities to provide comprehensive services. In this Bill, the Government will continue to water down those responsibilities. The noble and learned Lord, Lord Mackay, described that as foundational. Yesterday, the noble Earl said that the fact that the Secretary of State delegates so much responsibility to other bodies shows that the current legislation is not fit for purpose. The fact of that delegation is recognition of the Secretary of State’s responsibility to Parliament for the spending of more than £120 billion a year. When trouble arises, whether it is a public health disaster such as BSE, or perhaps a clinical safety issue such as occurred at Mid Staffordshire NHS Foundation Trust, it is the Secretary of State whom we look to to account to Parliament.
I understand why some noble Lords are attracted to this part of the Bill; they want to take politics out of the NHS and they want to prevent micromanagement by Ministers. But some of us are old enough to remember the glory days of the nationalised industries and the tension between the chairman of the board and the Minister responsible. In the end, it was the Minister who was always held responsible by the public. I thought the noble Lord, Lord Mawhinney, put his finger on it yesterday. He complained to Ministers through a parliamentary Written Question about the merger of local primary care trusts, and he found his complaint referred back for an answer to the very official who had driven that decision in the first place. The noble Lord had better get used to this because that is the architecture contained in this Bill. It is about Ministers evading their responsibilities. In the end, I would rather be overseen by a Minister properly accountable to Parliament than by a quango whose accountability is somewhat tenuous.
Despite the Future Forum, a huge gamble is to be taken with clinical commissioning groups. Billions of pounds will be given to GPs, without any proper accountability to the public or any expertise in major commissioning decisions. The doctor-patient relationship goes to the heart of general practice, but neither the Future Forum nor the Government seem to show any signs of understanding the ethical tension between the role of GP as champion of the patient and the role of GP as rationer of services through commissioning; and neither will patients. What are the potential conflicts of interest if the clinical commissioning group places contracts with GPs in their group, or the use—as we saw last week at the Haxby Group Practice in Yorkshire—by GPs of their NHS patient list to promote their own private services? What does that do to the doctor-patient relationship?
Then we come to the issue of competition and the role of the private sector. I agree with my noble friend Lord Hutton that both have their place in the NHS, provided that they are properly managed. I have no problems with that at all, but I do not want to see destructive competition put at risk essential collaboration between neighbouring hospitals or the cherry-picking of services, which could harm the viability of many of our NHS services. Nor do I want to see the loss of the altruism that is characteristic of so many people in the NHS. My noble friend Lady Kingsmill, former deputy chairman of the Competition Commission, said yesterday that competition red in tooth and claw has its limits. Does the noble Earl agree with that? On the issue of competition and the use of the private sector, at heart it is a question of trust, and in essence the Government are simply not trusted. I, too, share the concern raised by the noble Lord, Lord Clement-Jones, that European competition law could bite in unexpected ways.
There is also real confusion about the role of the economic regulator Monitor. Yes, the Government have nuanced the role of the regulator, but it is still to be given anticompetitive responsibilities. As the King’s Fund has said, concerns remain about the extent of competition in the future NHS and its impact on integrated care, let alone on its relationship to social care. So the Future Forum has not changed the core principles. All that has happened is tinkering at the edges while sowing the seeds of great confusion in the NHS. We see a huge absorption of power by that giant of all quangos, the NHS Commissioning Board, so it is now going to get a massive slice of the commissioning budget, strong control of the clinical commissioning groups and direct contracting with every single GP, dentist, ophthalmologist and pharmacist in the country— thousands and thousands of them, all in contract with the NHS Commissioning Board. I am a great admirer of Sir David Nicholson, but I am alarmed by the lack of accountability of the board. It does not even need to meet in public.
This is just one aspect of a confusing and flawed architecture. What about the joint responsibility of the Commissioning Board and Monitor, the economic regulator, for tariff setting? It is clouded in ambiguity. What will be the relationship between Monitor and the quality regulator, CQC? With money tight and getting tighter, there will be an inevitable tension between the financial health of an institution and the safety and quality of services. Who will moderate that tension?
We now have the Francis inquiry into the mid-Staffs NHS trust. I would have thought that it might have important things to say about that. I would ask the Minister whether it would not be prudent to await that before rushing into these problematic changes.
We then come to the local level. Here the architecture is even more confusing. The King’s Fund has said that the major reconfiguration of hospital services is urgently needed for clinical and financial reasons. These are the real reforms that are needed today, but who will give them a green light? Yesterday, the Minister accused the last Government of creating layers of administration. That is a bit rich when you look at what he and his colleagues have created. Which body will sign off the reconfiguration of services at the local level? Is it to be the putative clinical commissioning groups, yet to be authorised, or the existing primary care trusts, or the extra-statutory clusters of PCTs that have assumed enormous power to themselves, or perhaps the local offices of the NHS Commissioning Board, which are an inevitability? What about the commissioning support units, another initiative, which apparently are to be set up in each area to support the clinical commissioning groups in their commissioning responsibilities, or the local authority health and well-being boards, which will be given enhanced roles in relation to commissioning, or perhaps the local authority overview and scrutiny committees, which will still be able to refer major service changes? The clinical networks will presumably want a say, and the clinical senates will certainly want to get involved.
The Minister said that he wanted to reduce bureaucracy and remove the vacuum in decision-making. These provisions do the opposite; they have created a monster where opportunities for delay and buck-passing will be legion. No wonder that almost every noble Lord who has spoken has called for more scrutiny. Should the noble Lord, Lord Owen, put his Motion to the vote, we will certainly support him.
I listened with great interest to the noble and learned Lord, Lord Mackay, who argued that because this issue of the powers of the Secretary of State are foundational, as he described it, if we were to accept the Motion proposed by the noble Lord, Lord Owen, it would be difficult to deal with the rest of the Bill, because a vacuum would be there. But there is plenty for us to debate were the noble Lord, Lord Owen, to be successful. I would pray in aid the police Bill. The noble and learned Lord will recall that on the first debate, on the first day of Committee, the House voted to take out essentially the core clause in the Bill. We had many happy days debating the rest of the Bill, and I do not think that your Lordships found themselves at all inhibited by that.
Even at this late stage, I hope that the Minister will get up and say that he will accept the Motion from the noble Lord, Lord Owen. The Opposition are quite happy to agree with the usual channels the number of days that the Bill should be in Committee and we are quite happy to agree a date by which Committee stage should be completed. You cannot say fairer than that. I urge the Minister to accept that offer. Of course, it would be better if we had no Bill at all. Last week, 400 doctors and other medical professionals wrote to the Telegraph. They said:
“The Bill will do irreparable harm to the NHS … It ushers in a significantly heightened degree of commercialisation and marketisation that will fragment patient care; aggravate risks to individual patient safety; erode medical ethics and trust … widen health inequalities”,
and, waste much money”. And that was just the first paragraph.
That great Liberal, Sir William Beveridge, in his 1942 plan, envisaged a National Health Service covering all medical treatments. Aneurin Bevan presented his proposals in 1946, in this very Chamber, though in another place, and said that the NHS would,
“relieve suffering. It will produce higher standards for the medical profession. It will be a great contribution towards the wellbeing of the common people of Great Britain”.—[Official Report, Commons, 30/4/46; col. 63.]
The NHS has done this magnificently.
This morning, I and my colleagues received from 38 Degrees a petition containing over 135,000 signatures collected in a very short space of time asking this House to protect the NHS and to ensure that the Bill gets proper scrutiny. That is but one small reflection of widespread concern in the community and the NHS. Yes, the noble Lord, Lord Fowler, is right; there have been concerns before, when he was Secretary of State. Indeed, I hope that I was quite successful in orchestrating some of those concerns. But this is different. The scale of concern and mistrust among the public and the NHS is greater than I have ever known it before. Only this House now stands between safeguarding the NHS and these confused and damaging proposals. I hope that we will not fail the test that has been set us. I shall support my noble friend in the Lobby.
Lord Hunt of Kings Heath
My Lords, in my experience, if this House wants something to happen it finds a way for it to happen. Even at this late stage, I ask the noble Earl to give careful consideration to this. I have already said from this Bench that we are happy to meet through the usual channels to agree a date by which the Committee stage will be finished on the Floor of the House. I am sure that the noble Lord, Lord Owen, as far as he is able, will wish to say that he is happy for the special committee to finish by a certain date. I do not believe that it is impossible for agreement to be reached on this.
Earl Howe
My Lords, I very much welcome that offer, which has come rather late in the day. My understanding is that discussions over the timetabling of the Bill have taken place over the past week. However, we are faced with the amendment that is on the Order Paper and must vote on it as it stands.
NHS: Future Forum
Lord Hunt of Kings Heath Excerpts(14 years, 5 months ago)
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Earl Howe
I thank my noble friend for raising this important topic. I cannot provide him with the kind of detailed replies that he seeks. Those should emerge over the next few days as we work through our response fully. But I can tell him that we will amend the Bill to strengthen and emphasise the commissioner’s duty to promote choice in line with the right in the NHS constitution for patients to make choices about their NHS care and to receive information to support those choices. We believe in patients’ choice and in competition, as I have already indicated, where that is appropriate. As recommended by the Future Forum, the Secretary of State’s mandate to the board will set clear expectations about offering patients choice.
We will maintain our commitment to extending patients’ choice of any qualified provider, but we will do this in a much more phased way. We will delay starting until April 2012, and the choice of any qualified provider will be limited to services covered by national or local tariff pricing to ensure that competition, where it occurs, is based on quality. We will focus on the services where patients say they want more choice—for example, starting with selected community services—rather than seeking blanket coverage. Of course, with some services such as A&E and critical care, any qualified provider will never be practicable or in patients’ interests.
I have already referred to the changes in the duties of Monitor, in its competition functions. The NHS Commissioning Board, in consultation with Monitor, will set out guidance on how choice and competition should be applied to particular services, guided by the mandate set by Ministers. That includes guidance on how services should be bundled or integrated.
Lord Hunt of Kings Heath
My Lords, I declare an interest as chair of the Heart of England NHS foundation trust and as a consultant trainer in the NHS. Like other noble Lords, I am very grateful to the noble Earl for his stewardship of this matter in your Lordships' House. It is noticeable that the Government are continuing with their policy of placing £60 billion in the hands of commissioning consortia, which would be largely led by general practitioners. What I thought was missing from both the listening exercise and the Government’s general approach was any indication of how the standards in general practice are to be improved. A huge amount of power is to be given to general practice, yet we know that the general quality of GPs is very variable. In some parts of the country, it is very difficult to get access to GPs out of nine to five hours; in some parts, GPs have shown themselves completely unable to engage in demand management. Will these commissioning consortia be able to get to grips with poor quality GP performance?
Earl Howe
The noble Lord, Lord Hunt, raises an important issue. I agree with him that the quality of general practice has been extremely variable. We saw a report the other day, published by one of the think tanks, which said exactly that. We have some very good GPs, but we have some who, frankly, are less than the standard that we would want and expect in primary care.
We are doing a lot of work to roll out leadership programmes for general practitioners. The National Leadership Council is working with GPs to agree the skills required for commissioning and will assist GPs in developing these skills as appropriate. The NHS institute is also doing some good work in this area and we will shortly be able to provide a bit more detail on how we can develop leadership, regionally and nationwide.
The noble Lord’s question runs rather wider than that, being about the quality of care delivered by GPs. In rolling out the outcomes framework and the commissioning outcomes framework, and the transparency that goes with that, it will become rapidly apparent which GPs require more support. I have no doubt that the consortia or, as we are now calling them, clinical commissioning groups will see it as being in their interests to ensure that the poorer performers are brought up to the standard of the best.
Public Bodies Bill [HL]
Lord Hunt of Kings Heath Excerpts(14 years, 6 months ago)
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“( ) Where the Minister considers that the changes proposed do not warrant a full public consultation under subsection (1)(g), the Minister must publish a copy of the proposal on the website of the relevant Government department or make it otherwise publicly accessible.”
Lord Hunt of Kings Heath
My Lords, the Bill’s return after a period of some weeks is welcome. In this amendment I return to the issue of public consultation, a matter that we have debated on a number of occasions. Given the enormous powers that the Bill will give to Ministers—powers embracing the abolition, merger, finance and governance of a considerable number of public bodies—it seems only right that when changes are made to any of the orders listed in the Bill, the public should have a say.
The House did not agree to my amendment to ensure that whenever a Minister proposes to make an order under Clauses 1 to 6, the public should always be consulted. However, the noble Lord, Lord Taylor, was rather more sympathetic to a further amendment to which I spoke, which would have ensured that when a Minister considers that proposed changes do not warrant a full public consultation, the Minister must at least publish a copy of the proposal on the website of the relevant government department or make it otherwise available. The noble Lord kindly said that he understood the arguments that had been put forward and that where consultation does not take place, a proposal will at least be put on the website. He said that he would consider the issue between Report and Third Reading, and I should be grateful for, and am hopeful of, a positive response from him.
My next amendment, Amendment 6, relates to regional development agencies and the need for consultation on their proposed abolition. I will not reopen the whole question of whether or not it is wise to abolish regional development agencies, but I must say that the longer the economy flatlines, as it is, the more convinced I am that it is a very big mistake to remove a regional strategic body for economic development. I want to raise the issue of consultation, specifically the consultation that will need to follow the Government's proposals to abolish regional development agencies.
One problem with the Bill is that the Government have failed to engage in any pre-legislative consultation on these matters. One example of that is the remarkable decision to fire-sale the assets of RDAs. That has been the subject of a number of comments. I find it extraordinary that instead of the RDAs being allowed to pass on assets under deferred payment schemes to, for instance, local authorities, they are being forced down the route of selling off assets at the worst possible time. There is real concern here that if those assets are sold in the current economic climate, their values will not be at current market levels, to the detriment of the local economy and future work of both local authorities and local enterprise partnerships, which are to take the place of RDAs.
I come to the specific issue of consultation. The noble Lord will know that this matter was raised by the House Of Commons Public Administration Committee in its report. It refers to the evidence given by the Minister, who had been asked what consultation had taken place in advance of deciding to abolish bodies listed in the Bill. The report states that the Minister responded that,
“the level of consultation would have been ‘very varied [...] in some cases, will have been quite extensive; in other cases, will have been very little’”.
He also said:
“These are essentially decisions in principle; these are decisions made where departments will know, or should know and I'm sure do, in a great deal of detail what those bodies do, what their functions are and how they are carried out”.
The committee reports that it reached the view from these comments that the Minister had assumed that the nature of the decision was such that consultation was unnecessary. As the Commons Select Committee stated, that assessment is wrong. It concluded:
“The Government did not consult properly on these proposals. When undertaking such a fundamental review of the machinery of government it is desirable and sensible to do so. We welcome the fact the Government is now taking steps to rectify this, but question how useful consultation can be, given that decisions on the future of many bodies have already been taken. Having agreed to amend the Bill”—
as the Government did, and it has now been so amended—
“to allow for more consultation we expect these consultations to have real effect on the outcome of the review; even if this means reversing decisions that have already been made. We expect the Government to give us such an assurance in its response to this Report”.
In their response to the report published in March, Command Paper 8044, the Government state:
“The Government has always been committed to ensuring appropriate consultation and external input in relation to its proposals. There is a substantial role for consultation to play, and a strong impact to be made on the delivery of these decisions”.
I should therefore like the Minister to confirm that, so far as it affects the bodies listed in the Bill but specifically RDAs, there will indeed be proper consultation, the consultation will be duly considered and, in the light of that consultation, the Government will, if appropriate, reverse their decision. My amendment is intended to ensure, if the Government decide to bring forward any orders that would embrace RDAs, the explanatory document that has to be brought forward in conjunction with the order will make it clear that a proper consultation was undertaken, including a summary of the representations received in respect of the principle of abolition. That would ensure a proper and genuine consultation process. I hope that the noble Lord will be able to be positive on both amendments. I beg to move.
Lord Hunt of Kings Heath
I am grateful to the Minister for his response. I shall take Amendment 6 first. My noble friend Lord Beecham surely put his finger on it, and it really takes us back to the comments made in the House of Commons Public Administration Committee, which made it clear that, having agreed through this Bill to have proper consultation, that consultation must be done properly. That must mean that the Government have to consider on their merits the responses received. Let me take the West Midlands as an example. There is almost uniform opposition and hostility to the abolition of Advantage West Midlands. There is also a dawning recognition that the local enterprise partnerships which are to be put in its place simply do not have the wherewithal or coverage of the region to do the job that the RDA is proposing. So the question arises of whether the Government, having considered the results of the consultation, will in all fairness give due consideration to those comments before coming to a decision. That is a very important matter.
I was disappointed with the Minister’s response to Amendment 1. All noble Lords know that the heart of the noble Lord, Lord Taylor, is in the right place when it comes to this amendment. It is disappointing that his department has not been able to respond in the same way. I fully accept that your Lordships' House did not agree to my amendment to make public consultation apply in all cases. However, this amendment modestly suggests that when, in appropriate cases, a Minister decides that public consultation is not necessary, there should be at the very least a reference to it on the department’s website. With the best will in the world, I have not heard any convincing argument as to why that cannot be in the Bill. I do not see why it should be left to guidance which can be changed at any point. Moreover, in referring to that guidance, the Minister carefully used the words “ought to”. He did not say that departments “must”.
This is a matter of principle. I accept that this House decided that there will be circumstances in which it will be appropriate for a Minister not to seek public consultation. In the interests of good governance, however, surely there should be a record, and a reference should be made to it at least on the department’s website. I think that this is a matter of principle and I wish to test the opinion of the House.
“4 The explanatory document required under section 11(2) in respect of the regional development agencies must include—
(a) the wording of the question that was asked about the principle of abolishing regional development agencies;(b) a summary of representations received in respect of the principle of abolishing regional development agencies.”
Lord Hunt of Kings Heath
My Lords, we have already debated my Amendment 6, which would ensure that when the consultation takes place on the abolition of regional development agencies, there has to be a proper consultation. It is an important point of principle and I beg to move.
Lord Taylor of Holbeach
My Lords, I beg to move that this Bill do now pass. In doing so, I crave the indulgence of the House to say a few words. Today is 9 May, and we had Second Reading of this Bill on 9 November. For six calendar months, this House has been considering the Bill. The Bill has been much changed by this House; I think we all share the view that the Bill has been improved by this House. This House can be proud of its role of scrutiny, which it has demonstrated in scrutinising the Bill and improving it. It can serve as a textbook example of how this House serves that great and fundamental purpose.
I say a word of thanks to Members of this House for that role. In particular, I thank those on the opposition Front Bench for the constructive way in which we have been able to talk about the Bill from the beginning. They had firm ideas of what they wanted to happen to the Bill; we had ours; but the discussions were always friendly and open. I am very grateful to them. I am very grateful to all Peers who have attended our meetings: those from the Cross Benches, in particular, for their construction of ideas and resolution of some of the impasses which looked difficult to overcome; and to coalition Peers for their support and input. Right to the end, we have been discussing these matters, and the House has been divided on them, but there has been a real sense of partnership on the Bill. That has been particularly true of my Front Bench colleagues who have shared the passage of the Bill with me and have taken particular amendments. I have been reluctant to comment on individual involvement, but I feel that I should thank my noble friend Lady Rawlings, who is my Whip on the Bill and who has been with me more or less throughout its passage.
I conclude by thanking the Bill team, because they have had to work particularly hard not just within the Cabinet Office, which originated the Bill, but across all government departments, because every government department has been engaged in the Bill. I thank them for the way in which we have enjoyed working on the Bill together. They now go to see it through another place, and their job continues. I also mention the Bill team manager, as was, Louise Parry, who during the Easter Recess had a baby daughter. Cecilia is perhaps the most visible token of the Bill's passage through this House, and we are delighted for both of them. They are both very well and I thank Louise for her support to me and to her colleagues during the passage of the Bill.
Lord Hunt of Kings Heath
My Lords, I must say that when we completed the passage of the Marine and Coastal Access Bill, which also took about six months, I never thought that I would be facing the noble Lord, Lord Taylor, on another Bill which took so long. I echo his comments: I think that the Bill is much changed; it has benefited from scrutiny in your Lordships' House. I am sure that the whole House would wish to thank the noble Lord, Lord Taylor, for his stewardship of the Bill. He has shown great skill and sensitivity to the issues that have been raised. All of us are grateful for the manner in which he has met us to discuss the issues, but his responses in your Lordships’ Chamber have also been in a flavour of seeking a way through. We are very grateful to him.
There has been a cast of thousands on either side of the opposition and government Front Benches. I, too, very much thank my colleagues for their help. I echo the noble Lord’s words of thanks to the Bill team. We are very grateful to them for the help that they have given us over the months. I, too, congratulate the Bill team manager on the birth of her daughter during Easter.
The Bill goes to the other place much enhanced. Because of the sunset clause, although the Bill will deal with a number of public bodies, when that is done, there will be a mechanism for looking at public bodies in future in a way that noble Lords find a very satisfactory outcome.
Lord Wigley
My Lords, before the Bill passes, perhaps I may add a caveat to some of the comments that have been made. I immediately recognise that the noble Lord, Lord Taylor, and the government Front Bench have made concessions on a number of aspects of the Bill, and people in the Forest of Dean and elsewhere will no doubt be very happy with what has happened. However, the noble Lord will not be surprised that my reservation concerns the fact that the uncertainties about the future of the Welsh television channel S4C have still not been resolved. There had been a hope of amendments being tabled at Third Reading. I understand the reasons why that was not allowed, although I recall the noble Lord, Lord Roberts of Llandudno, saying on 28 March that if any of the eight assurances that he was given were not fully delivered, he would want to bring the matter back at Third Reading. The fact is that the S4C authorities have indicated that, of those eight assurances, six are without substance. Therefore, on that occasion the amendment was not pressed to a vote on the basis of assurances which had not been given.
I do not want to go over old ground and I certainly accept that the Government have moved on a couple of points but, if the consultation with the National Assembly had taken place, it would have been very much more satisfactory from the outset. However, with the announcement today of a new chair for S4C—Huw Jones, whom we wish well—we would have hoped to see a line being drawn under many of these matters so that S4C could move forward with confidence. When the Bill goes to another place, three aspects will need to be resolved. The first is the constitutional position of S4C, the second is the safeguarding of S4C’s funding and the third is its right to make managerial decisions without people from the BBC sitting in on them.
On Wednesday, a report on this matter will be published by a Select Committee of another place and it will contain remarkable cross-party agreement on the unsatisfactory nature of this Bill. Therefore, I very much hope that, when the Bill goes to another place, the aspects that have not been addressed in your Lordships’ House will be addressed and we will have the same satisfaction regarding S4C as noble Lords have indicated they have with regard to other aspects of the Bill.
Public Bodies Bill [HL]
Lord Hunt of Kings Heath Excerpts(14 years, 7 months ago)
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Lord Whitty
My Lords, my comment this evening is basically: why is Passenger Focus still here in the Bill? As the noble Earl knows, Passenger Focus had the distinction of appearing in three schedules to start with, plus we had a generalised statement from BIS that it wished to bring all consumer bodies together as one body, probably Citizens Advice. Because the consultation on all that has been postponed, we do not yet know whether the Government are still so minded, although I suspect that the noble Earl’s department has seen off that proposal for the moment, so we are discussing Passenger Focus as a separate entity. In default of having a sensible rationalisation of consumer bodies, it is important that Passenger Focus remains.
When we removed Passenger Focus from Schedule 5, I received some assurances on the subject from the noble Earl, but this amendment relates to constitutional change in the body. As we have just heard from the noble Lord, Lord Henley, a lot of things could be done under the heading of constitutional change, so I would like some assurance from the noble Earl that the worst fears are unfounded. It was said that Passenger Focus would be reduced to its core role. I expressed concern at the time that that might mean that it would no longer be able to criticise the general conduct of the railway or bus companies, or indeed government policy, and would simply be reduced to a complaints organisation. I think that, on that occasion, the noble Earl said that that would not be the case, but the drastic reduction in its resources—by nearly 40 per cent—suggests that it will have to reduce substantially. If, in order to meet that very much reduced budget, it has to drop some functions, we should be told which functions the Government expect those will be.
If the inclusion of Passenger Focus in this schedule is simply aimed at its governance, I would need reassurance that that would not remove the regional base of its governance and its wide remit to go into the affairs and performance of individual train and bus companies. I hope that I can receive those assurances tonight, in which case we can have a very short debate on this item and welcome the fact that Passenger Focus will be affected by this Bill only to a minimum degree. However, I need those assurances. I beg to move.
Lord Hunt of Kings Heath
My Lords, perhaps I may briefly support my noble friend in saying that I hope that the noble Earl will be able to give the assurance that he requires. The problem with Schedule 3 is that, on the face of it, it gives considerable power to Ministers to alter the constitutional arrangements of bodies and offices. I take that to mean that, if the Government were unhappy with the performance of the board of such an organisation, they could make drastic changes in its governance arrangements by bringing an order before Parliament. The problem is that that power could also be used to remove members of the board who may be causing some disagreeableness to the Government. That is a matter of concern. Clearly, if these public bodies are not able to exercise their functions in a robust and independent way, they are unlikely to do their job effectively. This relates to all the bodies listed but I think that the question that my noble friend has raised about Passenger Focus is a fair one to put to the noble Earl, Lord Attlee. I hope that, specifically in regard to this body, the noble Earl will say on the record from the Dispatch Box that the changes envisaged to governance et cetera will only be minor.
Earl Attlee
My Lords, this amendment would remove Passenger Focus from Schedule 3, preventing our current proposals to change the governance arrangements of the body. The noble Lord, Lord Whitty, asks why the body is still here in the Bill. He also mentioned other bodies, such as Citizens Advice. He will recognise that BIS is developing proposals for reforming the wider consumer landscape, but it is too soon to say how the reform of Passenger Focus will fit with that, as this is too long term.
The noble Lord expanded his point to Citizens Advice and trading standards organisations, if I may put it like that. We would not want to rule that out but the consideration of options is at too early a stage for any commitment to be given. As was made clear in Committee, the appearance of Passenger Focus in the Bill does not reflect the view that passengers’ interests are unimportant. We are very clear that passengers are the only reason that we run a public transport system in the first place. In addition, we fully accept the need for a powerful passenger advocate, which is reinforced by EU provisions that require us to have a properly independent complaints body to which passengers can turn. Passenger Focus has that role. This was reflected in the public bodies review, which concluded that Passenger Focus should be retained but substantially reformed to focus on the core role of protecting passengers, while reducing costs to taxpayers.
The noble Lord, Lord Hunt of Kings Heath, made the important point—if I might paraphrase him—that this is perhaps an opportunity to weaken the body in certain circumstances. The answer to that is simply no. We want to maintain an effective passenger advocate; that is the best way of ensuring that transport operators are held properly to account. The Government also value having a passenger advocate that has the confidence and expertise to be a critical friend to the Government and is prepared, where appropriate, to hold both the Government and transport operators to account. This is an opportunity to ensure that role is performed in a robust and cost-effective way.
A significant amount of work has already taken place to review the details of Passenger Focus’s work for next year within a significantly reduced budget. As part of this process, it is right that we should look at areas such as the size and composition of the Passenger Focus board. The noble Lord, Lord Whitty, asked how we would achieve the reduction in budget. An obvious area for reduction is research. We do not expect research to end altogether, but it is right to be sure that the current range of research is genuinely justifiable. We need to consider whether operators should do more to canvass the views of their customers, rather than expect the Government to pay for research.
As referred to in Committee, Schedule 3 can be used to implement changes to the composition of the Passenger Focus board. Indeed, we understand that Passenger Focus has for some time been considering streamlining the board’s operation. Although the details are still to be finalised, it makes sense that a scaling back of its activities should be accompanied by a smaller board that will also result in savings for the taxpayer. I understand that Passenger Focus is looking at reducing the size and cost of its board through a combination of measures, including not filling vacancies and changing the scale and scope of board meetings. The Government are working constructively with Passenger Focus to help it maintain its important functions within the constraints of a reduced budget.
We are also interested in exploring the continued funding of passenger representation in Scotland and Wales, where rail policy is largely a devolved matter. We are in contact with the devolved Administrations about how this may be taken forward. Some of Passenger Focus’s other specific Scottish and Welsh passenger activity, such as the current passenger link work, is expected to be restructured in a similar way to that in England.
I hope the noble Lord is persuaded that there are good reasons to have the ability to change the governance arrangements for Passenger Focus and that he will therefore feel able to withdraw his amendment on that basis.
“Administrative Justice and Tribunals Council.”
“Civil Justice Council.”
Public Bodies Bill [HL]
Lord Hunt of Kings Heath Excerpts(14 years, 8 months ago)
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Lord Hunt of Kings Heath
My Lords, I will move the amendment in the name of my noble friend Lord Whitty. Passenger Focus plays an important role in protecting the interests of Britain’s rail passengers, England’s bus passengers outside London, coach passengers on scheduled domestic services and tram passengers. It is important that this function is not undermined and it is not appropriate that Passenger Focus is included in the Bill. I am very happy that the noble Lord, Lord Taylor, is joining me in support of this important amendment. I beg to move.
Lord Whitty
My Lords, my noble friend did not realise that I had arrived from the airport to move the amendment. I, too, am grateful to the Minister and I congratulate him. This is the first time that a Minister in this Government has added their name to an amendment of mine on any piece of legislation. What I am about to say should not undermine my gratitude. However, I have to ask two questions.
First, where does this leave Passenger Focus, because it achieved the distinction of appearing under three different schedules to the Bill and it remains in Schedule 3, which we agreed at an earlier stage? The piece of paper given to us for our debate on Monday, had we reached the amendment then, indicated that a much reduced role is envisaged for Passenger Focus. The document states that it would concentrate on its,
“core role of protecting consumers”,
that there was “scope for significant savings”, and that the body would be working under a “significantly reduced budget”. The reference to the core role is slightly sinister, because it implies that the organisation will focus on the complaints function and therefore act in processing and improving that function, but that it will not be allowed to be more critical of the train or bus companies and, more particularly, the department’s overall transport policy as regards the rail or bus network. If that is the intention, it will neuter Passenger Focus considerably. I should like the noble Earl, Lord Attlee, who I assume will reply, to provide reassurance on that front.
My second question is on a wider front. The various existing consumer bodies are being dealt with differentially under this legislation. Some are to be abolished, some are to be merged, some are to have their functions transferred and some, given the abolition of Schedule 7, will be retained—presumably in their present form. Passenger Focus will be retained in a modified form. The Government’s original intent, for which I had some regard, was to rationalise the whole structure of consumer representation. Instead of that, the danger is that they will leave a bigger hotchpotch than the aggregate of previous legislation on consumer matters and weaken the statutory base of a number of consumer bodies.
As the Committee knows, I have an interest as a past chair of Consumer Focus. On the one hand, it appears that that body will be abolished, while on the other hand the Government say that they will transfer the functions to Citizens Advice. It was BIS’s original view that other bodies, including Passenger Focus and the Consumer Council for Water, should also be transferred to Citizens Advice. Whether or not that was a good idea, at least it was coherent. It seems now that we will end up on the consumer front with greater incoherence than the Government inherited and were determined to do something about. Not only is regulation likely to be more incoherent, but it is also likely to be substantially weaker, with fewer resources. Therefore, although I very much appreciate the Government’s support for the amendment, I have serious misgivings about their specific and general intentions as regards consumer protection.
Lord Whitty
In this amendment, I move away from the detailed consideration of individual bodies and their future to a more general principle. This relates to what happens to the staff of those bodies whose functions are transferred or merged. There is a clear-cut situation where, if bodies are abolished, although some of the bodies are Schedule 1, there has also been commitment by the Government to transfer the functions, duties or powers elsewhere and, therefore, the question of what happens to the staff who are carrying out those functions under the current arrangements does arise.
This amendment would make it clear that, in normal circumstances, the TUPE arrangements would apply as they would apply to mergers in both the private and the public sector, and across the private and the public sector where functions and duties are transferred. Under normal procedure concerning people’s entitlement to terms and conditions, including redundancy terms, pensions and other aspects of their employment, if the functions are moved into a receiving body, it would be for that receiving body to maintain both the continuity of service and the terms and conditions unless and until, either by collective agreement or by individual contract agreement, those terms are changed.
Because of the complexity of the bodies involved and the contractual terms which appear and have grown up in many of these bodies over time, it may not be all that clear, even to eminent employment lawyers, whether a TUPE applies or not. Even in the more simple past, when we were only dealing with one or two mergers of bodies or transfers of functions, it sometimes was not at all clear. The form of words here is almost exactly that which was included in the legislation in 2006 which set up the present Consumer Focus body—the National Consumer Council in legal terms—when we had the merger of the old National Consumer Council, Energywatch and Postwatch. The terms and conditions were preserved, albeit in some situations it was not entirely clear whether TUPE would apply or not.
In 2006 the regulations on TUPE came in. When Consumer Focus was created they were quite new, but similar forms of words have appeared in other legislation where there has been a merger or transfer of functions from one state body—NDPB or equivalent—to another. This Bill has a wholesale raft of such transfers. It does not have quite as many as it started out with but there are still quite a few left, and a few where it is not quite clear whether the transfer is occurring or not, and whether it is a function which normally comes under the TUPE regulations.
This amendment would make it clear, however, that if the function transfers or the duty and power transfers, the staff would go with them unless and until the receiving body decided it might wish to dispense with their services as the new employer. It is not up to the previous employer to declare them redundant until such a rationalisation has taken place by the receiving employer, which can happen more or less instantaneously in certain circumstances. The important point is that up until that point, the terms and conditions of the staff employed under the pre-existing bodies would be preserved.
This important point relates to quite a lot of staff, and there is quite a lot of uncertainty among the trade unions and staff bodies representing them. We need clarity on this and if the Government are unable to accept this form of words then, clearly, I am happy to discuss it with them. The principle needs to be established for all the bodies which remain within this Bill. I beg to move.
Lord Hunt of Kings Heath
My Lords, I would very much like to support my noble friend on this. It is timely to remember that thousands of people who work for the public bodies listed in this Bill are likely to be affected by its provisions. Many will lose their livelihoods; some will find their careers seriously damaged; some, as my noble friend Lord Whitty has said, will find themselves transferred to other employers. It is important that we recognise and acknowledge that those people have given dedicated service, in some cases for many years. Where they are transferring to another body, we must make the transition process as smooth as possible. That is clearly the intent behind my noble friend's amendment. It would ensure that, where a person is transferred to another body, TUPE will apply, with the implications and protections as described by my noble friend. I hope that the Minister will be able to provide the necessary assurances on that. The Government also need to take on board the point that my noble friend made about the complexity of the issue and the need for clarity, which is why his amendment deserves serious consideration.
Lord Taylor of Holbeach
I, too, am grateful to the noble Lord, Lord Whitty, for tabling the amendment, because it raises an important aspect of the reforms and allows the Committee to consider the impact of the Government's reform programme on the staff of the bodies affected. I take this opportunity to pay tribute to the work of the thousands of hard-working staff of public bodies across the country. Specifically, I put on record that our proposed reforms to public bodies are no reflection on the work of the staff.
I assure the Committee that the Government are working with the chairs and chief executives of public bodies and trade union representatives to ensure that necessary change is carried out as smoothly and fairly as possible. As the noble Lord said, that must be an important aspect of this operation. The Government have been diligent in acknowledging the needs of staff during the public bodies review programme, and we will continue to be so—for example, by exploring opportunities for redeployment where possible.
The Cabinet Office has been working closely with other departments since 2010 to ensure that the needs of staff are fully factored into the public bodies programme of work, particularly on the need to provide staff with clarity following reform decisions and the milestones along the route. The Cabinet Secretary has sent a message to departments on that very point. The Cabinet Office has also provided a checklist of considerations for departments which takes the needs of staff and stakeholders into account.
Those arrangements reflect a flexible approach that ensures that government departments can respond in the context of individual changes—based, of course, on the proper protections that are already enshrined in UK employment law. That is the right approach to support our public bodies’ staff. It also reflects the Cabinet Office statement of practice on staff transfers in the public sector. The guiding principles, as set out in the document state:
“The Government is committed to ensuring that the public sector is a good employer and a model contractor and client”.
The principles recognise that the:
“involvement, commitment and motivation of staff are vital for achieving smooth and seamless transition during such organisational change”.
On the specifics of the amendment, I should like to inform the Committee why the Government believe that the blanket application of TUPE is not appropriate. TUPE, and the European law which underpins it, was designed to protect staff where the business for which they worked, or the services to which they were assigned, would be carried out by a different organisation. Staff retain their jobs and conditions, and the new employer steps into the shoes of the old one. The definition of relevant transfer under TUPE is broad and will cover most transfer situations.
However, Clause 23 already provides the mechanism for equivalent protection to be confirmed in non-TUPE situations where that is appropriate. That is underpinned by the Cabinet Office statement of practice on staff transfers, to which I have already referred, which provides that the TUPE principles should generally be followed through a transfer scheme which addresses the imperatives of the particular transfer.
The blanket application of TUPE to all transfers conducted pursuant to this Bill seems likely to lead to inefficiencies and unintended consequences. For example, there may be circumstances where a body following an order made under this Bill is carrying out functions which have significantly altered and which require different skills and resources, with the result that there is no relevant transfer for TUPE purposes. If TUPE were nevertheless to be applied, staff would be transferred to the new body by operation of law, only to be potentially made redundant by the transferee. This would involve extra work and unnecessary expense and delay with no benefit to anyone, increasing uncertainty for staff and possibly disruptive relocation.
I appreciate the concern of the noble Lord, Lord Whitty, and I can assure him that the Government will continue to have a positive approach to TUPE regulations where they properly apply, and seek to make appropriate provision where this is not the case. I hope that, in the light of the assurances I have given, he will feel free to withdraw his amendment.
Lord Goodhart
My Lords, I have Amendment 125A in this group. I originally planned to de-group it, because it is different in its purpose from the others. However, in view of the lateness of the hour, and if the Minister agrees, I shall deal with it now and get it over with.
It is clear that this Bill is meant for use in the near future and not in the longer term. It cannot be right for it to create powers which might be exercised several years from now in circumstances which are entirely different from those of the present. This makes it desirable that a time limit be put on the operation of the Bill in the nature of a sunset clause. There should be a reasonable time for the Government to enact their legislation under this Bill. I have suggested in my amendment that the sun should set on the Bill when the present Parliament is dissolved; that is, in a little over four years if we adopt the Fixed-term Parliaments Bill.
That seems to be a reasonable time in which to do everything that is needed here. There is absolutely no need for the provisions of the Public Bodies Act, as it will then be, to continue after the duration of the present Parliament.
Lord Hunt of Kings Heath
My Lords, I shall speak to a number of the amendments in this group. The amendment of the noble Lord, Lord Newton, has indeed acted as a beacon, such a beacon that we all want to join in and follow him. I very much support the intent behind it.
In many ways, this is a very important group of amendments, because they go back to the question of the architecture, as we have come to call it, of the Bill. I repeat that the Opposition are not opposed to a regular review of public bodies—it is right that they should be subject to review. Our concern all along has been that the Bill should not give such overweening power to Ministers without sufficient parliamentary scrutiny.
We have had a number of debates about the architecture of the Bill during our days in Committee. I acknowledge the progress that has been made through amendments and responses from the Government. The removal of Clause 11, Schedule 7 and those clauses relating to forestry are particularly welcome. We have also discussed Clause 8, concerning the matters to be considered by Ministers. The Minister has already said that this is a matter in progress and that he cannot give a commitment, but it is none the less encouraging that he and his officials are discussing the wording of Clause 8. I hope that he will be able to bring some comfort to us when we come back on Report.
Nevertheless, the Bill could still be further improved, first, by enhancing the consultation procedures and then by making order-making procedures in Parliament subject to extra scrutiny. My Amendment 114A to the Minister’s Amendment 114 seeks to ensure that the public would always be consulted if the Minister proposed to make an order under Clauses 1 to 6. I accept that the Minister’s amendment is welcome and extensive. I also accept that in new subsection (1)(g) of the proposed new clause the Minister is given power to consult the public, since it states,
“such other persons as the Minister considers appropriate”.
That is a phrase beloved of parliamentary counsel and officials. I should like to encourage him to go a little further. In the context of this Bill, the provision gives a little too much discretion to Ministers to decide who else they want to consult. The bodies in this Bill are all important and deal with important functions. I believe that there should be no question that if an order is made under this Bill there should automatically be public consultation.
I also believe—this relates to my Amendments 118A and 118B—that the order-making procedure to be used in Parliament should be thorough. I welcome Amendment 118 in the name of the noble Lord, Lord Taylor. The question is whether it is sufficient. On this we have the advice of the Delegated Powers and Regulatory Reform Committee, which certainly did not think so in its report in November 2010 when the Bill was originally published. On 7 March, we had a further report from the committee. It welcomed the noble Lord’s amendment, which it sees as a further enhancement, but it reminds us that there are still two key differences between the Government’s proposed enhanced procedure and what was in the Legislative and Regulatory Reform Act 2006, which introduced the super-affirmative procedure. The committee says that, under the 2006 Act,
“if a committee of either House recommends that no further proceedings be taken on a draft order, then any further proceedings are automatically stopped unless and until the recommendation is rejected by that House itself (commonly called the ‘veto’)”.
The committee reminds us that, under the 2006 Act,
“a Minister wishing to proceed with an order unaltered after having been required to have regard to representations must lay a statement before Parliament giving details of any representations received”.
The committee points out that such a statement is not required under this Bill or under the amendment in the name of the noble Lord, Lord Taylor. I say to the noble Lord that I welcome the enhanced scrutiny that he is proposing but I do not think that it goes far enough given the order of power that is given to Ministers.
I, of course, listened with great interest to the argument from the noble Lord, Lord Goodhart, for his sunset clause amendment. We support the principle of the sunset clause. The only question that I would put to him—it would be interesting to have further discussions between now and Report—is whether there is not an argument for keeping the Act, which would allow the Government perhaps at the start of every parliamentary term to undertake a further review, but for time-limiting the provisions in relation to an organisation named.
My main concern about the construct of this Bill is the chilling factor on any organisation so named. I think that it would be possible to have a recasting of the noble Lord’s amendment to make it clear to an individual organisation that, unless a Government deal with a matter within a certain time, it falls. However, there is a case for the Government being able to undertake a regular review. It might be that we should keep the provisions of this Bill but limit the time under which an individual organisation can be covered by it.
Lord Goodhart
I am certainly interested in what the noble Lord, Lord Hunt, has said. It is something that I would obviously consider and I would be happy to discuss it with him or the Minister at some time between now and Report.
Lord Hunt of Kings Heath
My Lords, I am most grateful to the noble Lord, Lord Goodhart, and I very much look forward to doing that.
My Amendment 176A deals with omnibus orders. The concern here is that a whole group of bodies could be dealt with under one order, which could mean that much less scrutiny would take place. It is interesting that the Government had an amendment—Amendment 126—to prevent omnibus orders in relation to the bodies listed in Schedule 7. Clearly, that falls, because we are no longer to have Schedule 7. However, if the Government thought that it was reasonable not to use omnibus orders in relation to that schedule, does not the principle arise with the bodies listed in Schedules 1 to 6?
Finally, Amendment 177 is a probing amendment. It relates to hybridity and to Clause 27(4), which states:
“If the draft of an instrument containing an order under this Act … would, apart from this section, be a hybrid instrument for the purposes of the standing orders of either House of Parliament, it is to proceed in that House as if it were not such an instrument”.
Can the Minister give an explanation of that? Perhaps, if it is extensive, he might care to write to me.
Lord Taylor of Holbeach
I do not suppose that the Committee would have chosen to debate this important group of amendments at this time of night. I do not really want to rush but I am mindful of the time. It is interesting that the amendments contain the workplace of me and the Bill team. This is certainly an area in which we are and have been much engaged. I hope that all noble Lords will understand that it is rarely possible to deliver everything. There are some areas where the Government have to draw a line but there are others—I think that I can indicate these in the debate this evening—where further consideration is justified and where I would hope to come back with amendments before Report, after discussions with noble Lords. I say that by way of preface.
The whole group of amendments relates to the procedures that Ministers must follow. These issues have had substantial discussion in Committee. I thank noble Lords across the Committee for their contributions. As I seek to respond to each amendment, I ask noble Lords to contextualise the debate against the changes that we have already announced in the Bill, notably the removal of Schedule 7 and our ongoing commitment to work with noble Lords on a variety of related issues.
I begin with Amendment 106A in the name of my noble friend Lord Newton of Braintree. This amendment would add the objectives of,
“fairness, openness, transparency and justice”,
to the list to which the Minister must have regard when considering making an order under Sections 1 to 6. I thank him for his amendment and reassure the Committee that these objectives underpin the Government’s rationale for reforming public bodies and, of course, the Government’s programme as a whole. It is good that my noble friend carries the coalition agreement in his inside pocket, close to his heart. I am reassured by that and always value his contributions, even when they are not necessarily supportive of everything that I am seeking to do with this Bill. The only points where I fear we disagree concern whether this amendment would work in practice and whether such wording is necessary on the face of the Bill. The Government believe that such a requirement in legislative terms would be ambiguous and could, as drafted, be quite difficult to measure or assess. However, it is an area in Clause 8 that we have committed to look at.
Amendment 114A returns us to the question of consultation, which was originally debated on our first day in Committee on this Bill. It would amend government Amendment 114 by introducing a specific requirement to consult the public before laying an order using the main powers in the Bill. The Government have accepted the principle that Ministers should be required to consult on their proposals to reform public bodies before using these powers. The Government also accept that in some cases it is completely appropriate to consult the public in relation to such proposals. For example, I can confirm to the Committee that the Department for Business, Innovation and Skills intends to consult this year on its proposed changes to competition bodies. We discussed that earlier this evening. It will be a public consultation. The Government Equalities Office will soon publish its consultation document on reform of the Equality and Human Rights Commission. Later this year, Defra will issue a public consultation on its plans to replace British Waterways with a charitable body.
However, I take issue with the amendment in the name of the noble Lord, Lord Hunt, as it would apply without due regard to proportionality to any proposed reform. Such an approach runs contrary not only to the policy of this Government but also to the existing code of practice on consultation, which was issued in June 2008 by the Government of whom the noble Lord, Lord Hunt, was a part. The introduction to the code of practice is clear:
“Ministers retain their existing discretion not to conduct formal consultation exercises under the terms of the Code. At times, a formal, written, public consultation will not be the most effective or proportionate way of seeking input from interested parties”.
I do not quote from this document to seek to absolve Ministers of responsibility. Subsection (1)(b) in Amendment 114 specifically requires a Minister to consult persons whom he or she considers,
“to be representative of interests substantially affected by the proposal”.
This provision clearly could include the public. The Minister must therefore expect to be held accountable for his or her decisions in relation to this provision. However, the proper requirement that Ministers should consider whether to consult the public does not lead to the conclusion that it will prove necessary or proportionate in all cases. For example, is it proportionate to require a full public consultation on the statutory abolition of Food From Britain, a body that, to all intents, has been defunct since 2009, or on the proposal to use Schedule 2 to merge the Pensions Ombudsman with the ombudsman for the board of the Pension Protection Fund? These two bodies already share services to a great extent and those functions will not change.
As with other cases in the Bill where the public will rightfully expect to be consulted, undoubtedly they will, but the Bill as drafted allows for that possibility and the Government accept their responsibility to ensure that that occurs when necessary. By contrast, the amendment proposed by the noble Lord, Lord Hunt, will remove the ability of Ministers to conduct a more targeted consultation when that is appropriate. While I have sympathy with the sentiment behind Amendment 114A, the Government do not believe that the public will welcome a proposal that would add unnecessary bureaucracy to the order-making process and with it, in effect, the process of reform.
The question of proportionality is also pertinent to Amendments 118A and 118B in the name of the noble Lord, Lord Hunt, which concern the parliamentary procedure that should apply to orders made under this Bill. In responding to these amendments, I should clarify for your Lordships’ House that we have substituted government Amendment 118 with a new version that makes it explicit that the enhanced procedure can be activated by a recommendation of a committee of either House. This clarification responds to paragraph 24(a) of the sixth report of the Delegated Powers Committee—that is, the committee’s second report on this Bill. I am happy to clarify the Government’s intentions in response.
Amendment 118A seeks to make it explicit that a Minister wishing to make an order following a period of consultation must lay before Parliament a draft order and explanatory document. I agree with the spirit of the noble Lord’s amendment, but I do not consider it necessary. While the current drafting of subsection (1) in government Amendment 118 states that a Minister,
“may lay … a draft order, and … an explanatory document”,
it would in practice not be possible to make an order without following this procedure. Our current drafting simply reflects the fact that, following a period of consultation under Amendment 114, the Minister is not obliged to proceed with the proposal.
Amendment 118B would introduce a wholly new parliamentary procedure for these orders, giving a committee of either House the opportunity not only to reject but also to amend an order, or to recommend that the proposals be taken forward only through primary legislation. As I argued when we debated this issue on the first day in Committee, the Government cannot support that proposal for a number of reasons. First, I maintain my position that the noble Lord’s amendment goes beyond the scope of the Bill in seeking to effect a fundamental shift in how this House deals with secondary legislation. Secondly, I do not accept that the powers of the Bill, especially in the light of the removal of Schedule 7 and the additional safeguards that the Government are now proposing, justify the use of such a restrictive parliamentary procedure. It is now the case that no body can be subject to the powers of the Bill unless Parliament has consented through primary legislation to its inclusion in the Bill’s schedules. The waiting room of Schedule 7 has gone. Therefore, the scope of the powers in this Bill has been significantly narrowed. On this basis, to continue to suggest that the Bill requires a more restrictive scrutiny procedure than, for example, the Legislative and Regulatory Reform Act appears a disproportionate response, particularly in the light of the additional safeguards that we have introduced and continued to work towards and the fact that the proposed procedure would apply to each and every order made under this Bill.
I do not intend to quote a list of examples of such reforms. Suffice it to say that I do not consider that the opposition amendment represents a proportionate procedure for an order to abolish a body that is already defunct. Our approach, by contrast, gives Parliament the flexibility to select and enhance procedure while maintaining for the Government the reasonable ability to act to implement their programme. It is for this reason that I cannot accept Amendment 118B or Amendment 117.
Lord Hunt of Kings Heath
My Lords, I am most grateful to the noble Lord for giving way. I will not detain the Committee very long. I want to make two points. First, presumably in the case of defunct bodies, the Select Committee appointed by the House could deal with this matter in very short order. The Merits Committee, for instance, deals with a huge number of statutory instruments every week. It will list a huge number to which it does not draw the special attention of the House and it focuses on the orders it considers to be most important. Secondly, the noble Lord has been pretty forthright in rejecting my amendment. Between now and Report will the Government at least give careful consideration to the report of the Delegated Powers and Regulatory Reform Committee? It has reported only in the past few days and it covers this issue.
Lord Taylor of Holbeach
Of course and I would like to feel that the noble Lord would know that I wish to continue the very useful dialogue we have had on this Bill. I felt it would help the noble Lord if I defined the areas where I feel there is going to be more scope for improving the Bill—as we would both describe it—and areas where I think it is not going to be possible. I thought it was better to be upfront and frank about it and I hope that the noble Lord will understand that. We want to maintain our dialogue because, despite the difficulties the Bill had in its early days, I believe this could be a very useful piece of legislation and one which suits both Government and Parliament in its operation provided we put the proper work into the foundations. We will have a chance to talk about that when we come to other amendments in this now slightly enhanced grouping.
As I said, this is why I cannot accept Amendment 118B or Amendment 176 in the name of the noble Lord, Lord Dubs, which makes provision regarding the commencement date of amending orders using wording which appears to be drawn from the Civil Contingencies Act. That Act was designed to create a framework for dealing with emergency regulations, which, by their extreme nature, circumvent the usual channels of parliamentary scrutiny. I do not accept that there is a parallel between such orders and those which would be made under this Bill.
Originally my speaking note at this point mentioned sunsetting; then my speaking note did not mention sunsetting because the amendment of the noble Lord, Lord Goodhart, was going to be taken separately. If the noble Lord does not mind I will put it at the end because I think it is quite important that I can say a few words on it.
Amendment 176 would prevent an order being made under this Act from applying to more than one body or office. I understand the thinking behind the amendment which seeks to ensure proper parliamentary scrutiny of these important orders. However, I am also anxious that the Bill is not amended in such a way that will restrict the sensible decision-making of departments or overburden Parliament with a requirement to consider separately multiple orders of a similar class. I am thinking, for example, of the multiplicity of drainage boards which might have similar requirements for secondary legislation. I hope that any wording covering this would not exclude that because it would not be in the interests of efficient use of parliamentary time, particularly given that the changes to be taken forward by the said orders will in most cases have been debated thoroughly in primary legislation.
We do not accept the argument that in all cases the use of omnibus orders would necessarily reduce the level of parliamentary scrutiny. I should also say to the noble Lord that the particular amendments under discussion would have what I believe are unintended consequences by preventing any orders to merge bodies using the power in Clause 2 as such orders would by their nature apply to more than one body or office. However, I am willing to consider again whether some form of restriction on the use of omnibus orders might be appropriate. I would be happy to discuss that with the noble Lord prior to Report stage. So that is another item for our agenda.
Amendment 177 would remove the provision in Clause 27 that aims to give certainty to the order-making procedure and to avoid lengthy debates on hybridity that could unnecessarily delay reforms from being taken forward by Ministers. This sort of provision is not without precedent; nor does it broaden the powers of Ministers in any significant way. Indeed, similar provisions form parts of a number of Acts passed by the previous Administration, including the Regional Development Agencies Act 1998, the Freedom of Information Act 2000, the Charities Act 2006, the Climate Change Act 2008 and the Equality Act 2010. In addition, I am happy to assure the Committee that the Government’s initial assessment was that none of the proposed orders to take forward the reform of bodies listed in Schedules 1 to 6 could be considered hybrid.
Amendment 178 would require an annual report from a Minister regarding the use of order-making powers. I understand that the intention of this amendment is to ensure that the Government are properly held to account for their use of these powers, which is of course right and proper. However, the exercise of the powers will be a matter of public record, as is the case in the exercise of any powers made by statutory instrument. In addition, parliamentarians have a variety of means by which to question the Government on all aspects of policy relating to public bodies via Parliamentary Questions and the Select Committee process. I am unclear what is expected to be gained by the creation of a new reporting burden.
It is also the case that these powers will not be exercised centrally via the Cabinet Office but elsewhere by individual Ministers in departments, who will each have set out their own approach to public body reform in their departmental business plans. It is by reference to those documents that the Government have committed to be held to account and departments will report quarterly on them as a matter of course.
I turn to my noble friend Lord Goodhart’s amendments, which seek to sunset the order-making powers contained in Clauses 1 to 6, 13, 17 and 18 so that they could no longer be used after the dissolution of the present Parliament. As noble Lords will know, perhaps all too well, this is not the first time that we have debated this issue. Since our first day in Committee, the architecture of the Bill has changed as the Government have listened and responded to concerns raised by noble Lords. Most recently, that has resulted in the removal of Clause 11 and Schedule 7. For that reason, this is a timely debate as it allows the Committee to consider the issue in the new context in which we find ourselves.
The issue of sunsetting all the parts of the Bill is a complex one. I can see logic in not leaving bodies in schedules in perpetuity; I think that the noble Lord, Lord Hunt, and my noble and learned friend Lord Mackay made a similar point. Although this is something that the Government are still considering, there is perhaps more merit in the option proposed recently by the noble Baroness, Lady Royall, of sunsetting the contents of the schedules to the Bill rather than the powers themselves. That is all the more persuasive in the light of the removal of Schedule 7, which has drastically limited the scope of these powers, something that had not happened when my noble friend Lord Goodhart tabled his amendment.
Inserting a sunset clause that would limit the period in which powers could be used could now be counterproductive and potentially leave us in the same position as we are in today—that is, without a mechanism to take forward reforms following the regular review of public bodies that the Government will take forward, which I hope will continue in future. By contrast, leaving the powers on the statute book would leave open the possibility for Parliament to debate and consent to the repopulation of the Bill’s schedules through later primary legislation, without having to cover what would be well trodden ground. However, as I made clear to the noble Lord, the Government have already committed to consider this issue further prior to Report stage. I do not intend to renege on that agreement. I am happy to engage on this issue with my noble friend Lord Goodhart and other noble Lords. In that spirit, I hope that he will not press his amendment.
I thank all noble Lords who have contributed to this debate and who have engaged in discussions at earlier stages as this is a culmination of other debates on mechanisms in this Bill. I have made it clear that we continue to look at Clause 8. I hope that my responses today and the amendments and the commitments that the Government have already made reassure the Committee that this Government will ensure that the procedure applicable to orders made under this Bill is proportionate and sensible and allows for proper parliamentary scrutiny of Ministers’ actions. In light of those assurances, I invite my noble friend Lord Newton of Braintree to withdraw his amendment.
Lord Mackay of Clashfern
I have been privileged to put my name to the amendment and of course I support it wholeheartedly. It makes clear the legal framework within which the ministerial powers under the Bill may be exercised. I thank my right honourable friend Francis Maude for seeing me on this matter and I assure the noble Baroness, Lady Royall, that the consultation right across Whitehall was necessary. That is perhaps one of the reasons why we were not quite as early with this as some of us might have liked. I thank members of the Bill team very much for the patience that they exhibited in listening to me preaching to them about this, in a manner to which your Lordships are accustomed.
Lord Hunt of Kings Heath
My Lords, I say to the noble Lord, Lord Lester, that if he continues to table amendments of this quality he will be very welcome to move them after midnight, day after day. I, too, thank him, as this is an important amendment. It provides considerable reassurance to noble Lords about how the Bill will operate when enacted. I am grateful to him; it goes right back to that first vote on day one in Committee, which seems a little time ago. I also thank the noble and learned Lord, Lord Mackay, for his great assistance, and the Bill team and the Minister. This is a very positive outcome.
Lord Norton of Louth
I add my thanks to the noble Lord, Lord Lester, and all those involved in generating the amendment. I have previously made the point that, in terms of parliamentary scrutiny, the work on the Bill has been an example of best practice. The amendment is a particularly fine example of that in terms of the consultation that has taken place to produce an amendment for which there is agreement throughout the House. It is an excellent addition to the Bill.
NHS: Reorganisation
Lord Hunt of Kings Heath Excerpts(14 years, 11 months ago)
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Lord Hunt of Kings Heath
My Lords, I thank my noble friend for securing this debate and for his excellent contribution. I declare an interest as a non-executive director of the Heart of England NHS trust; president of the Royal Society for Public Health, of the Health Care Supply Association and of the British Fluoridation Society; a trustee of the Terrence Higgins Trust; a self-employed consultant on the NHS; and a consultant and trainer for Cumberlege Connections.
The paper published yesterday by the Government claimed widespread support for what they propose, but I have not detected that. In fact, there is wide dismay in the health service about what is proposed and the inevitable train crash that will occur. Of course, many of the White Paper’s intentions are supported—who could argue with wanting a service that puts patients first? However, I fail to understand the means chosen to achieve that. Why not build on what is there? Why is the health service being given four years of disruption and disorganisation? I would have more understanding if the NHS was in such a critical condition that it needed major surgery, but it is anything but. The last decade has seen great strides made—300,000 more staff, new facilities, new services, and waiting times cracked. I refer the noble Lord, Lord Alderdice, to the US Commonwealth Fund’s report last month, which looked at 11 major developed healthcare systems and gave the NHS a glowing report; in fact, it said that the NHS was extremely cost-effective. Only two days ago, the British social attitudes survey showed that when Labour entered office in 1997 only 34 per cent of people were satisfied with the NHS. By 2009, the figure stood at 64 per cent, the highest since the survey began in 1983. What is the case for drastic change? The Government have certainly not made out that case.
There is a great risk in what will happen in the next few years and I would like to make three points to the noble Earl, Lord Howe. The first is on the danger of instability. PCTs are in meltdown, facing a lingering death by cluster. GP consortia, untried and untested, are meant to take up the reins. If resources were flowing, perhaps the system could just about cope, but resources will not flow. Some £20 billion has to be taken out of efficiency savings, at the same time as the NHS is facing the consequences of a huge cutback in adult social care funding. The financial challenge is immense. David Nicholson told the Commons Select Committee:
“It is huge … it has never been done before in the NHS context”.
What an extraordinary time to dismantle the very bodies on which one would depend to achieve the efficiency savings. What are the Government doing to the people who will achieve those savings? It will not be the clinicians—the clinicians are never to be found when it comes to these issues—it will be the managers, and the Government are cutting management costs by 45 per cent over four years. That is sheer madness. No wonder Professor Chris Ham said in October that,
“there is a real risk of losing financial control”.
That view is shared up and down the NHS. Whichever part of the country you are in, that is the view that people express.
I then come to GP consortia. I would be interested if the noble Earl could clarify how many consortia he thinks will emerge. When the White Paper was published, some briefing clearly took place that suggested that there would be around 500, with populations of 100,000. Since then, indications are that they will be much larger than that to spread the financial risk. I understand that but, if you make them very large, do you not undermine the whole purpose of giving individual GPs involvement in the consortia? The Government are taking a laissez-faire attitude towards that, according to the documents published yesterday. However, if the intention is for each contract holder to have a clinician representative on the consortium, as is stated, I wonder about the practicalities. Indeed, I suspect that some consortia will make your Lordships’ House seem rather modest in size.
Then there is accountability. Billions of pounds are to be handed over to GPs. What corporate governance safeguards are to be put in place? As a minimum, surely we must have a non-executive chair and non-executive members. The kind of structure that the Government propose would not reach first base of any corporate governance test in any other organisation in this country. How can it be possible to leave that to each consortium to decide? If noble Lords reject that argument, I ask why we have non-execs on public companies. Why do we have trust boards? Why not just hand things to the consultants and let them develop a consortium and make the decisions? It is absolutely incredible that we should hand so much money over to a group of professionals without proper accountability and without the public interest being maintained by non-executives. When the relevant Bill comes to this House, that is one of the most powerful points that my noble friends and I will make.
I shall finalise my theme in relation to GP consortia. Mr Lansley wants the management of care and the management of resources to be put together at the GP level. What happens when, as is happening at the moment, contracts are overperformed by hospitals because, essentially, the GPs cannot manage demand? In the new structure, the consortia will have to face the financial consequences of that. They will then need to tell poorly performing GPs to change their behaviour, but there are no levers in the White Paper for them to do so. I would have supported the contract being placed at the consortia level, but placing it at the national commissioning board level will lead to huge bureaucracy and leave the consortia with no levers whatsoever. Of course, there would be probity issues, but if you had non-executives, you could deal with those.
I hope that the noble Earl, Lord Howe, will reflect on that. The Secretary of State has shown little sign of being willing to have a proper dialogue. My experience is that Secretaries of State who are not prepared to listen or have dialogue will face the consequences.