Health and Care Bill

Lord Kamall Excerpts

Lords Hansard - Part 2 & Report stage
Thursday 3rd March 2022 Lords Chamber

The powers of reconfiguration being sought by the Secretary of State in Clause 40 would enable this Government to change the decisions of those put in place locally, who are well qualified to make those decisions in a non-partisan and needs-based way, and thus allow the Government to wield unwarranted political power and take it from the competent people they have put in place to take those decisions. I do not trust this Government, who are currently trying to use the Elections Bill to ensure that they continue in power, to resist using these Secretary of State powers in this Bill for political purposes. It is incumbent on all parties to stop them, and to stop any future Government doing this, by removing Clause 40.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

I thank noble Lords for bringing this debate to the House today. I am sure that the Secretary of State will be grateful for the desire to save him from himself and his powers. Let me read out the following quote:

“If we went out to Parliament Square now and straw-polled people walking by, asking them who they thought was responsible for the NHS in England at a national level, I think we would wait a very long time before anyone gave any answer other than the Government and, by extension, the Secretary of State”.—[Official Report, Commons, Health and Care Bill Committee, 21/9/21; col. 393.]


These are not my words, but those of the Opposition spokesman during Committee in the other place.

One of the core pillars of the Bill is to ensure appropriate accountability for the NHS. This is of the utmost importance as we invest further in local service decision-making and delivery. It is critical that, in line with the aims of the Bill to empower local systems, the Secretary of State has the appropriate levers to meet the public expectation for ministerial accountability.

There has been some confusion about what the powers in the Bill will do, and if noble Lords will allow me, I will spend a moment on this to add clarity. Clause 39 will simply allow the Secretary of State to direct NHS England—and only NHS England—on matters where it already has functions. This is not a power over local bodies. Clause 40 and Schedule 6 will allow the Secretary of State to call in and decide on reconfiguration decisions. They do not remove any of the existing safeguards, including the requirement to consult or the role of the Independent Reconfigurations Panel in providing advice to the Secretary of State.

I understand the arguments put forward in Amendment 83, and I will take procurement first. We agree that it is inappropriate for the Secretary of State to be involved in individual procurement decisions. That is not the motive behind this power, and it is not the way it would be used. The regulation-making power inserted by Clause 70 prevents the Secretary of State being able to use this direction-making power to direct NHS England—

[Baroness Thornton (Lab)]

The Minister said that this was not the motive behind the power, but motive is not the point here. I am sure that the Secretary of State has the best of motives, as does the Minister, but the point is the effect of what the Bill says.

[Lord Kamall (Con)]

I thank the noble Baroness for clarifying that. Of course, we completely understand the concerns that have been raised. The Secretary of State must use regulation-making powers where they exist, rather than using the power of direction to achieve what could be achieved under regulations.

Turning to the allocation of resources to the ICBs, the Government have no ambition to use this power to interfere with individual allocations of money to the system. It will not be used to interfere with the independent Advisory Committee on Resource Allocation. NHS England will continue to make funding allocations to ICBs to support them to deliver functions via the target formula, in order to reduce inequalities between patients. We have attached safeguards to this power to make sure it is not misused. Any exercise of this power must be done transparently: it must be made in writing, be published and be made in the public interest. This will enable Parliament to challenge Ministers and hold them to account.

Turning to Amendment 84, Clause 40 and Schedule 6 will allow the Secretary of State to better support effective change and respond to stakeholder concerns, including views from the public, health oversight and scrutiny committees and parliamentarians, in a more timely way. The clause and schedule will ensure that key decisions made about how services are delivered are subject to democratic oversight.

It is a misapprehension that the Secretary of State currently has no role in the decision-making process for reconfigurations. He does and without these provisions that role will continue. However, currently, referrals usually come at a very late stage in the process, which represents neither good value for the taxpayer nor good outcomes for patients.

I understand the concerns from noble Lords, including former Ministers, about how these powers might be used. But I have been asked to make clear that we expect the vast majority of reconfiguration decisions to continue to be managed by the local system—

[Lord Hunt of Kings Heath (Lab)]

I am sorry to interrupt, but does the Minister not take my point that it is not that Ministers will have to use those powers; it is that they have powers that will change behaviour immediately in the health service? That is the issue.

[Baroness Walmsley (LD)]

Before the Minister answers that question, I wonder if he would be kind enough to answer two from me. He just gave a list of what the powers will not be used for, but could he tell us what sort of thing the powers will be used for and under what circumstances? Can he also say why previous Secretaries of State—some of whom are not very far from where I am standing now—did not feel the need for those powers and still felt themselves accountable for the health service?

[Lord Kamall (Con)]

I thank noble Lords for those interventions. If they will allow me, I will come to answer them in my remarks.

We understand the concerns about how these powers will be used. It is in the interests of nobody, least of all the Secretary of State, to be making every decision in the system, and stakeholders will be encouraged to continue to resolve matters locally where possible. Duties for those responsible for reconfigurations to involve patients and consult the local authority will continue. Nevertheless, the Secretary of State is ultimately accountable for all changes to the health service. Therefore, it is entirely consistent with democratic principles that he or she should have the ability to intervene where it is deemed to be in the interests of the public.

We recognise that, in exercising these powers in this clause and schedule, it will be vital that the Secretary of State receives expert and clinical advice. That is why the Independent Reconfiguration Panel will continue to provide independent advice to the Secretary of State, allowing them to benefit from its many years of experience. This will mean that the Secretary of State will have independent advice that will include the views of both overview and scrutiny committees and patients, and the clinical case for change—

[Baroness Cumberlege (Con)]

I thank my noble friend. On this clinical advice, he is aware of the enormous changes that were made to stroke services in London. In the reconfiguration that took place, many lives were saved. But when it came to east Kent, the reconfiguration request, which was to do with stroke services, sat on the Secretary of State’s desk for two years. I just wonder how many people died for that delay.

When I put forward an amendment in Committee, I said that a decision must be made within three months by the Secretary of State if it is before his view, on his desk. Delay costs lives. It is absolutely critical that decisions are made fast in these reconfigurations, because we will lose lives.

[Lord Kamall (Con)]

Indeed, sometimes it is absolutely critical that decisions are made quickly. Where there are concerns about the speed of those decisions, the Secretary of State may ultimately decide to intervene, subject to advice from the Independent Reconfiguration Panel, overview and scrutiny committees, and patients, and based on the clinical case, should he or she decide to exercise powers under this clause.

I understand the concerns raised in this House and have heard the arguments presented today and in Committee. However, I think it would help if I reminded noble Lords that the Secretary of State’s powers included in the Bill are to ensure accountability. The public rightly want to hold the Government to account for the health service, and these powers allow that to happen effectively. The other place acknowledged that approach and supported it—

[Baroness Walmsley (LD)]

I cannot believe that the Minister meant to imply that all the structures being set up in this Bill are not accountable, because there are a whole lot of accountability measures in this Bill which will hold to account the people making these decisions without the Secretary of State. One might think from what he just said that the powers are very narrow.

But I draw his attention to page 206 of the Bill. In proposed new Section 68A(4)(3)(a), it just says that the Secretary of State can decide whether a proposal goes through or not, but in proposed new Section 68A(4)(3)(b) it says that the Secretary of State can intervene in the “particular results” that have to be achieved. In proposed new Section 68A(4)(3)(c) he can decide the procedure and other steps that should be taken in relation to the proposal. In proposed new Section 68A(4)(3)(d) there is the

“power to retake any decision previously taken by the NHS commissioning body”.

These seem to be very broad powers; they are not just small intervention powers by the Secretary of State.

[Lord Kamall (Con)]

The noble Baroness raises some important points, but I remind her that, alongside those, she should consider safeguards and limitations that are being put in place to address these concerns and the importance of ensuring due accountability for health service delivery. I understand the strong feeling among noble Lords and have tried to go as far as I can in addressing those concerns. I once again, perhaps in vain, ask noble Lords to think about the assurances that have been given and not to move their amendments when they are reached.

[Lord Lansley (Con)]

My Lords, I am grateful to my noble friend. In particular I am grateful for his specific assurances on the powers of procurement and the question of resource allocation. We can be pretty confident that the Secretary of State would not interfere with the Advisory Committee on Resource Allocation or the NHS England response to it. If the Secretary of State were to start messing with the formula, we would get into a very difficult place.

I am still of the view that there was a very good reason we gave NHS England greater freedoms. I think it would not have been possible for NHS England to have published its Five Year Forward View in 2014 or even more so the Long Term Plan in 2019, in circumstances where it had occupied the same relationship with the Secretary of State as it did in the past.

This is taking NHS England from its current degree of independence to something that it was not in the past, but is a little more ambiguous. It will be difficult, for precisely the reasons the noble Lord, Lord Hunt of Kings Heath, explained, for the NHS to feel that, when the successor to the long-term plan is published by the successor to the noble Lord, Lord Stevens of Birmingham, it is the NHS’s own plan. That has been very important; Ministers have said it a thousand times. Why do we not let that happen? The measures in Clause 39 take a real risk of infringing on the idea that it is the NHS’s own plan.

It does not mean that the Secretary of State is not accountable, but that they are accountable in ways that they can legitimately control: the resource allocation and an expectation of the priorities and outcomes. That is where the Secretary of State should be putting the weight of the Government, not in trying to decide how outcomes in the NHS are best achieved. I do not agree in principle with what is proposed in Clause 39, but I am not going to press that point.

I will, however, if the noble Baroness, Lady Thornton, pushes it, support her on Clause 40. I say to my noble friend: look at Schedule 6. The structure of it does not even mention the Independent Reconfiguration Panel. As soon as there is a proposal for a reconfiguration from any of the NHS bodies, it quite clearly places in the hands of the Secretary of State the responsibility to decide whether to go ahead with it or not. That will be exactly the moment when the Secretary of State is drawn in and is not able to be extricated from it.

My noble friend has simply to look at the example of the reconfiguration of congenital paediatric cardiac services to realise that no sensible Minister would have been drawn into that debate at an early stage with any confidence of being able to make a decision that would have been accepted by any of the parties to that debate.

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Moved by

[Lord Kamall]

85: Clause 45, page 50, line 6, leave out “The reference in subsection (1)” and insert “In subsection (1)—
(a) the reference”Member’s explanatory statement
This amendment is consequential on another amendment which provides that references in new section 26A of the NHS Act 2006 to effects of a decision in relation to certain matters include its effects in relation to inequalities with respect to those matters.

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Moved by

[Lord Kamall]

88: Clause 54, page 53, line 16, at end insert “in respect of a single financial year”
Member’s explanatory statement
This amendment means that any order imposing a limit on the capital expenditure of an NHS foundation trust may only relate to a single financial year (rather than spanning more than one financial year).

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Moved by

[Lord Kamall]

92: Clause 59, page 55, line 37, leave out “The reference in subsection (1)” and insert “In subsection (1)—
(a) the reference” Member’s explanatory statement
This amendment is consequential on another amendment which provides that references in new section 63A of the NHS Act 2006 to effects of a decision in relation to certain matters include its effects in relation to inequalities with respect to those matters.

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Moved by

[Lord Kamall]

97: Clause 67, page 61, line 42, at end insert—
“(2AA) For the purposes of subsection (2)(da) (as read with subsection (2A))—(a) a reference to the effects of decisions in relation to the health and well-being of the people of England includes a reference to the effects of the decisions in relation to inequalities between the people of England with respect to their health and well-being; (b) a reference to effects of decisions in relation to the quality of services provided to individuals includes a reference to the effects of the decisions in relation to inequalities between individuals with respect to the benefits that they can obtain from those services.”Member’s explanatory statement
This amendment provides that references in new subsection (2)(da) of section 96 of the Health and Social Care Act 2012 to effects of a decision in relation to certain matters include its effects in relation to inequalities with respect to those matters.

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Moved by

[Lord Kamall]

109: After Clause 77, insert the following new Clause—
“Meaning of “health” in NHS Act 2006
In section 275(1) of the National Health Service Act 2006 (interpretation), at the appropriate place insert—““health” includes mental health;”.”Member’s explanatory statement
This new Clause clarifies that in the NHS Act 2006 “health” includes mental health (unless the context otherwise requires). Although the natural meaning of health is capable of including “mental health” the existing provisions of the Act are inconsistent about whether they mention mental health expressly which could cause confusion.

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Moved by

[Lord Kamall]

110: Clause 79, page 69, line 42, at end insert “and the “and” before it”
Member’s explanatory statement
This amendment is consequential on Clause 79(3) of the Bill, which omits paragraph (c) of section 100(4) of the Care Act 2014.