Lord Kamall debates involving the Leader of the House during the 2019 Parliament

Wed 16th Mar 2022
Health and Care Bill
Lords Chamber

Lords Hansard _ Part 1
Mon 7th Mar 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 2
Wed 26th Jan 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 2
Tue 18th Jan 2022
Health and Care Bill
Lords Chamber

Lords Hansard - Part 2 & Lords Hansard - Part 2
Baroness Thornton Portrait Baroness Thornton (Lab)
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My Lords, can I say how much I support this suite of amendments? I congratulate the noble Lord, Lord Moylan, for tabling and speaking to them. This most lethal of killers has been defying science—or we at least have not had enough investment in the science—for many years. This means the survival rate is still not as it should be and as it is for other cancers. Anything that pushes the NHS and research community to tackle this and to set the targets that are needed to do so is very welcome. I look forward to what the Minister has to say.

Lord Kamall Portrait The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
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I thank noble Lords for bringing forward this further debate on the subject of pancreatic cancer services. I begin by confirming that the pancreatic cancer audit is included in the national cancer audit collaborating centre tender, which is currently live. Reporting timelines are included in the specification for this audit, developed in partnership with NHS England and NHS Improvement. However, I hope noble Lords will understand that, during a live tender, the document is commercially sensitive and cannot be shared beyond the commissioning team, as this would risk jeopardising the procurement process. While I recognise that it may be disappointing that I am unable to confirm the timeline for the pancreatic cancer audit until the procurement process is completed, I can say that the future contract to follow the procurement process in relation to the clinical audits is anticipated to start this autumn.

The normal process for a new national audit is a year of development and set-up, followed by data collection and analysis. The publication of the data would then follow. However, on a more positive note—and I hope my noble friend Lord Moylan considers this response less dusty—I can confirm that, alongside the audit of cancer services, important actions are being taken to ensure that clinicians are able to take informed decisions. NHS England and NHS Improvement have ensured that guidance on pancreatic enzyme replacement therapy is shared with cancer alliances to disseminate to clinical teams in their area. NHS England and NHS Improvement will also continue to work with Pancreatic Cancer UK to raise awareness among the clinical community about the value of PERT for many patients with pancreatic cancer.

Noble Lords will be aware that NICE has a clinical guideline, NG85, recommending that PERT should be offered to patients with inoperable pancreatic cancer, and that NICE has also included PERT in its quality standard on pancreatic cancer. NICE clinical guidelines are developed by experts based on a thorough assessment of the available evidence, but they do not replace the judgment of healthcare professionals. They are not mandatory, but they represent best practice. The NHS is expected to take them fully into account in ensuring that services meet the needs of patients. Ultimately, the use of PERT in individual cases is for clinical decision-making, following a discussion between doctor and patient. As such, national targets would not be appropriate.

My noble friend asked another question on data. PERT prescription data is already published online through the English prescribing dataset. This shows that levels of prescription have been rising. The data does not currently differentiate between prescription for pancreatic cancer patients and for people with other conditions. However, NHS England and NHS Improvement will consider PERT prescription data during the scoping of the pancreatic cancer audit.

I end by thanking my noble friend Lord Moylan for his constructive engagement and for pushing the Government on this. But I hope that the reassurances I have given are sufficient to persuade him to withdraw his amendment.

Lord Moylan Portrait Lord Moylan (Con)
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My Lords, I am very grateful to noble Lords who have spoken, particularly the noble Lord, Lord Aberdare, and the noble Baronesses, Lady Finlay of Llandaff, Lady Walmsley and Lady Thornton. I know that support for the principle behind these amendments is widespread throughout the House. The Minister has also taken that on board, and I am grateful to him not only for his engagement before this short debate but for the words he uttered from the Dispatch Box. He will be in no doubt that noble Lords will be paying attention to these prescribing rates in the future, carefully following what is happening, monitoring and asking questions to ensure that the information is getting to clinicians and that the medicines are getting to the patients who will benefit from them.

Before I sit down, I want to say a word of thanks to the excellent charity Pancreatic Cancer UK, with which I have worked on this and which I know also works with officials at the department to improve treatment for pancreatic cancer patients. I will test my licence a little further by saying that it is not only pancreatic cancer; there are also conditions such as bile duct cancer, which are just as devastating and which we, as a nation and a National Health Service, need to bring to the fore so that people get better treatment, better care and early diagnosis. We really can do this.

With that, I express gratitude to my noble friend the Minister and the other noble Lords who have spoken. I beg leave to withdraw the amendment.

Moved by
153A: After Schedule 18, insert the following new Schedule—
“LICENSING OF COSMETIC PROCEDURESIntroduction
1_ This Schedule is about the provision that may be made by regulations under section (Licensing of cosmetic procedures).Grant of licence
2_ The regulations may—(a) require a local authority not to grant a licence unless satisfied as to a matter specified in the regulations;(b) require a local authority to have regard, in deciding whether to grant a licence, to a matter specified in the regulations.3_ The regulations may make provision requiring a local authority not to grant a premises licence unless the premises have been inspected in accordance with the regulations.Licence conditions
4_(1) The regulations may make provision for the grant of a licence subject to conditions.(2) Provision of the kind mentioned in sub-paragraph (1) may—(a) enable a local authority to attach conditions to a licence;(b) require a local authority to attach to a licence a condition specified in the regulations.Duration of licence etc
5_(1) The regulations may make provision about the duration, renewal, variation, suspension or revocation of licences.(2) The provision that may be made under sub-paragraph (1) includes provision conferring power on a court by which a person is convicted of an offence under the regulations to vary, suspend or revoke a licence.Reviews and appeals
6_ The regulations may make provision for—(a) the review of decisions under the regulations;(b) appeals against decisions under the regulations.Offences
7_(1) The regulations may create offences in relation to—(a) the breach of a prohibition imposed by virtue of section (Licensing of cosmetic procedures)(1);(b) the breach of a condition attached to a licence;(c) the provision of false or misleading information to a local authority in connection with anything done under the regulations.(2) The regulations must provide for any such offence to be punishable on summary conviction with a fine or a fine not exceeding an amount specified, or determined in accordance with, the regulations.Financial penalties
8_(1) The regulations may confer power on a local authority to impose a financial penalty in relation to—(a) the breach of a prohibition imposed by virtue of section (Licensing of cosmetic procedures)(1);(b) the breach of a condition attached to a licence.(2) The amount of the financial penalty is to be specified in, or determined in accordance with, the regulations.(3) If the regulations confer power to impose a financial penalty in respect of conduct for which a criminal offence is created under the regulations, they must provide that a person is not liable to such a penalty in respect of conduct for which the person has been convicted of the offence.(4) If the regulations confer power to impose a financial penalty they must include provision—(a) requiring the local authority, before imposing a financial penalty on a person, to give the person written notice (a “notice of intent”) of the proposed financial penalty;(b) ensuring that the person is given an opportunity to make representations about the proposed financial penalty;(c) requiring the local authority, after the period for making representations, to decide whether to impose the financial penalty;(d) requiring the local authority, if it decides to impose the financial penalty, to give the person notice in writing (a “final notice”) imposing the penalty;(e) enabling a person on whom a financial penalty is imposed to appeal to a court or tribunal in accordance with the regulations;(f) as to the powers of the court or tribunal on such an appeal.(5) The provision that may be made by the regulations by virtue of sub-paragraph (1) includes provision—(a) enabling a notice of intent or final notice to be withdrawn or amended;(b) requiring the local authority to withdraw a final notice in circumstances specified in the regulations;(c) for a financial penalty to be increased by an amount specified in or determined in accordance with the regulations in the event of late payment;(d) as to how financial penalties are recoverable.Enforcement
9_ The regulations may confer on a local authority the function of enforcing the regulations in its area.Fees
10_ The regulations may include provision for fees in relation to the carrying out of functions of a local authority under or in connection with the regulations (including the cost of its enforcement functions under the regulations).Guidance
11_ The regulations may require a local authority, in carrying out functions under the regulations, to have regard to guidance published by the Secretary of State. Interpretation
12_(1) In this Schedule—“grant”, in relation to a licence, includes vary or renew;“licence” means a personal licence or premises licence;“personal licence” has the meaning given by section (Licensing of cosmetic procedures)(2);“premises licence” has the meaning given by section (Licensing of cosmetic procedures)(2).(2) Nothing in this Schedule is to be read as limiting the scope of the power to make regulations under section (Licensing of cosmetic procedures).”Member’s explanatory statement
This new Schedule sets out some of the things that may be included in regulations establishing a licensing regime relating to non-surgical cosmetic procedures (including provision for the imposition of fees, the creation of offences and financial penalties).
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Moved by
157: After Clause 164, insert the following new Clause—
“Child safeguarding etc in health and care: policy about information sharing
(1) The Secretary of State must publish and lay before Parliament a report describing the government’s policy in relation to the sharing of information by or with public authorities in the exercise of relevant functions of those authorities, for purposes relating to—(a) children’s health or social care, or(b) the safeguarding or promotion of the welfare of children.(2) In this section, “relevant functions” means functions relating to children’s health or social care, so far as exercisable in relation to England.(3) The report must include an explanation of whether or to what extent it is the government’s policy that a consistent identifier should be used for each child, to facilitate the sharing of information.(4) The report must include a summary of the Secretary of State’s views about implementation of the policy referred to in subsection (1), including any views about steps that should be taken to overcome barriers to implementation.(5) The report must be published and laid before Parliament within one year beginning with the date on which this section comes into force.(6) In this section “child” means a person aged under 18.”Member’s explanatory statement
This amendment inserts a new clause requiring the Secretary of State to publish and lay before Parliament a report describing the government’s policy in relation to information-sharing by or with authorities with health and social care functions, for purposes relating to children’s health or social care or the safeguarding or promotion of the welfare of children.

Health and Care Bill

Lord Kamall Excerpts
Friday 4th February 2022

(6 months, 1 week ago)

Lords Chamber
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Baroness Walmsley Portrait Baroness Walmsley (LD)
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My Lords, last week, when we debated the call for a separate list of properly qualified cosmetic surgeons, I received a briefing from the GMC about the forthcoming new system of professional regulation. I asked the Minister when this would be forthcoming, but I fear that he was not able to give me a clear answer. This matter has been hanging around for a very long time, but, when I scrutinised Clause 142, I saw that there was another problem: in future, the regulation of healthcare professionals can be made through secondary legislation—and whether this would be agreed by the negative or affirmative procedure is not clear.

The Explanatory Notes make clear that subsection (2)(e) —the powers to remove certain professions from regulation—

“includes the currently unenacted provisions concerning social care workers”.

Like the noble Lord, Lord Young of Cookham, I want to ask the Minister about this, because many noble Lords, including me, have been asking that social care workers have the opportunity to obtain qualifications that would provide them with registration and a career path to better pay and conditions—but this sounds like the opposite to me. Perhaps the Minister can explain this and tell the House when the new regulatory system will be ready. The 2017 report of your Lordships’ House’s Select Committee on the long-term sustainability of the NHS said:

“The current regulatory landscape is not fit for purpose. In the short term, we urge the Government to bring forward legislation in this Parliament to modernise the system of regulation of health and social care professionals”—


I emphasise “social care professionals”—

“and place them under a single legal framework as envisaged by the 2014 draft Law Commission Bill.”

That was five years ago.

I have also received a briefing from the Health and Care Professions Council. It appears from this that the HCPC has a rather different view from the GMC: it wants the new professional regulation of health and care professionals to be collaborative and innovation focused. It believes that the current system is “siloed”, and it is looking for multiprofessional regulation, which, it believes, better reflects current working practices in the NHS. I am not an expert in this matter, so I express no opinion on that, but I am looking for some clarity from the Minister on which direction the new regulation system will take and the evidence that this will be better than before and contribute to better quality and safety of care for patients. I would also like to know when it will happen, because Clause 142 appears to me to open the door to a fight between different regulators, which would not be helpful.

Lord Kamall Portrait The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
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I thank all noble Lords who spoke in this debate. As a number of noble Lords have acknowledged, the case for reforming professional regulation has long been acknowledged, and stakeholders have long expressed concern that having nine separate professional regulatory bodies is confusing for the public. So our response in 2019 to the public consultation on regulatory reform reflected the desire for fewer regulatory bodies to deliver benefits to the professional regulation system.

In the 2020 consultation Regulating Healthcare Professionals, Protecting the Public, we committed to a review of professions that are currently regulated in the UK to consider whether statutory regulation remains appropriate for these professions. A consultation seeking views has been published, and it will close at the end of March this year. We also commissioned KPMG to carry out an independent review of the regulatory landscape, and it submitted its report at the end of last year. Officials and others are now poring over the findings to consider how best to respond. However, as with any use of Section 60, a public consultation will be carried out on any legislation made under these powers, and this would face scrutiny through the affirmative parliamentary process.

On the core criteria and principles, the professions protected in law must be the right ones, and the level of regulatory oversight must be appropriate and proportionate to the risks to the public. This is why we have sought a number of views on the criteria for determining whether statutory regulation is appropriate. As I said, we will wait for the outcomes.

These proposals have been developed in partnership with the devolved Administrations, and we will continue to work in partnership with Scotland, Wales and Northern Ireland in taking forward any proposals for using these powers. This will also be subject to affirmative parliamentary approval.

Clause 142 provides additional powers that would widen the scope of Section 60 of the Health Act 1999 and enable the Privy Council to make additional changes through secondary legislation, as was acknowledged. Subject to consultation, we are aiming to enable the professional regulatory landscape to become more streamlined and work more flexibly. We think that this clause will make it easier to ensure that the professions protected in law are the right ones and that the level of regulatory oversight is proportionate to the risks to the public. The Government keep the professions subject to statutory regulation under review. As I said, as part of our work to reform healthcare professional regulation, we are continuing to consult.

As I said, any secondary legislation made using the new powers would be subject to Schedule 3 of the Health Act 1999, public consultation and the affirmative parliamentary procedure, thus ensuring that there is clear parliamentary scrutiny and transparency in relation to any changes made by secondary legislation in this area.

I also refer back to the questions on the social care register, which I discussed at length, both before and after the recent Oral Question. When I spoke to officials about why the register cannot be compulsory, they said that this was fair, given the demographics of some of the people in the skilled sector, who quite often have some suspicions of authority and a lack of trust—we have seen that with vaccine take-up, for example—and so there were concerns about making it compulsory at this stage. It is voluntary. They want to understand the range of qualifications across the sector. There are a number of different qualifications, and, in professionalising the sector better, they want to make sure that they are consistent at all the various levels in our education system—levels 2, 3, 4, 5, 6 and upwards—to make sure that those qualifications are mutually accepted and recognised to make social care an attractive career and vocation.

For these reasons, I ask that Clause 142 stand part of the Bill.

Baroness Thornton Portrait Baroness Thornton (Lab)
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My Lords, I thank the Minister, but that was not a satisfactory response, I am afraid. The only word I heard that justified these extra powers being taken was “streamlining”, and, frankly, that is not good enough. It seems to me that the Secretary of State should not be taking powers to put forward the abolition of regulatory bodies on the basis of a public consultation and statutory regulation. The Minister must understand the difference between primary legislation and statutory instruments—that is the crux.

The reason for that is about the independence of the bodies we have, such as the General Medical Council and the General Dental Council. Those bodies need to feel that they cannot be subject to abolition at the whim of a Secretary of State. They have to be sure that they are protected by primary legislation in Parliament, and the Minister has not given me or the Committee an explanation as to why that should change. That independence is very important and precious.

On the issue of social care, I found the Minister’s explanation a bit patronising. It seems to me that, if we are to value social care and the people who work in it, we need to strive to give them the equality of regulation and supervision that the medical professions have. I realise that there is a journey and a process but, to me, that has to be the aim because it is the only way we can give that profession and the people who work in it the equality of regard that they deserve.

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Moved by
243A: After Clause 143, insert the following new Clause—
“Human fertilisation and embryologyStorage of gametes and embryos
Schedule (Storage of gametes and embryos)—(a) contains amendments to the Human Fertilisation and Embryology Act 1990 which make provision relating to the storage of gametes and embryos, and(b) makes transitional provision in relation to those amendments.”Member’s explanatory statement
This new Clause introduces a new Schedule relating to the storage of gametes and embryos.
Lord Kamall Portrait Lord Kamall (Con)
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My Lords, in moving this amendment I will also speak to the Amendments 313A, 314A and 315A standing in my name. Before I start, I thank the noble Baroness, Lady Deech, for her many years of advocacy on reproductive health and look forward to hearing the points she will raise today. I am grateful for the productive meeting that we had a few weeks previously and welcome the noble Baroness’s support of the government amendments tabled in my name.

As many noble Lords will be aware, fertility preservation is achieved through the freezing and storage of gametes or embryos; it is an increasingly common procedure in the UK. The Human Fertilisation and Embryology Act sets limits on the length of time that frozen gametes and embryos can be stored for. The current statutory storage limit is 10 years, with the possibility of an extension up to a maximum of 55 years for those who are certified as prematurely infertile. Extended storage limits were introduced to help those people who became prematurely infertile preserve their fertility, with the hope of starting a family in the future. This would include children who may have undergone treatment for childhood cancers.

However, this approach appears to discriminate between those who have a medical need to freeze their gametes and embryos, and those who do not. This message was clear in response to our 2020 public consultation, and we accept that the current approach creates unfairness. Therefore, we are introducing a new scheme for all who currently freeze or wish to freeze their gametes or embryos. The new scheme will consist of 10-year renewable storage periods up to a maximum of 55 years for everyone, regardless of medical need. It is for these reasons that I ask noble Lords from across the House to support the government Amendments 243A, 313A, 314A and 315A in my name.

Baroness Deech Portrait Baroness Deech (CB)
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My Lords, Amendment 280 stands in my name and that of the noble Baroness, Lady Barker. I declare an interest as former chair of the HFEA.

Let me start by offering the Government what must be a rare and welcome tribute in these troubled days for bringing forward an amendment that reflects compassion and efficiency. They listened to the consultation and have picked up the result of at least two years of campaigning, in a way that I can only admire. As the Committee can see, my own miserable little drafting of Amendment 280 was really only an entry to allow the Government to do their own complicated drafting, which of course I will accede to—and there will be no need for my amendment.

I am profoundly grateful to the noble Lord, Lord Kamall, and, before him, the noble Lord, Lord Bethell, and the noble Baroness, Lady Blackwood, all of whom helped this along. It has the support of the Royal College of Obstetricians and Gynaecologists, the British Fertility Society, Progress Educational Trust and the specialist lawyers Natalie Gamble and Emily Jackson. Everyone is behind this amendment, and I am profoundly relieved that it has come forward just in the nick of time, because there was a possibility that later this summer women whose eggs were frozen for 10 years, and who took advantage of the two years’ extra time given them, might have run out of time.

This amendment will bring the UK’s law in line with advances in science and changes in modern society, and it will give individuals greater reproductive choices. It will also give patients more time to make important decisions about planning their family. On behalf of hundreds, maybe thousands, of women, let me express my gratitude to the Government for something that will be helpful in many years to come. I give my wholehearted support to the amendments in this group.

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Baroness Thornton Portrait Baroness Thornton (Lab)
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When the Minister and I were discussing government amendments, on this issue I said: “If Baroness Deech is happy with this, then I am happy with this,” and indeed I am.

Lord Kamall Portrait Lord Kamall (Con)
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I can confirm that that conversation did take place. When we were dividing up the groups for today, I thought about offering this to someone else. One of my noble friends turned to me and said, “You’re going to be bashed around enough today, Syed, at least take something you’ll get a bit of credit for.” But I cannot take credit: that has to go to the noble Baroness, Lady Deech, and the many noble Lords who have pressed this issue. The noble Baroness has also demonstrated the power of persistence and continuing the argument in a constructive way. On many of the other issues noble Lords believe in strongly—even if they feel that the Government may not be listening today, or that we are not sympathetic—I hope they will continue to be persistent.

On the general point that the noble Baroness, Lady Barker, made about reproductive health, I ask her to be more persistent. One of the great things about technology, not only digital but science and biology, is that often, it challenges the basis on which legislation was made. That is one thing we always have to be open to. Thanks to advances in technology, we are able to bring forward this amendment today. I will not say much more; I just hope that noble Lords agree that the time is right to change the legislation because of the progress made since the 2008 Act. I beg to move.

Amendment 243A agreed.
Baroness Walmsley Portrait Baroness Walmsley (LD)
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My Lords, I will be as brief as I can. I have a few words about some of the amendments in this wide-ranging group.

Amendment 243 would protect the title “nurse”. I know from family members that the qualification of registered nurse is always hard won, the result of very hard work. It involves rigorous basic training, often followed by further training in a specialty such as mental health nursing or surgery. The title provides a high level of trust among patients and the general population, because we know that a nurse must be registered with the Nursing and Midwifery Council, or a different responsible body for dental or veterinary nurses. There should therefore be clarity about who can use the title, and it could be sorted out very simply by the Minister—I hope he will do it.

A further anomaly, which the Minister can easily sort out in his reply, is that of the appointment of surgeons. I hope he will remove that anomaly as well.

I commend the work of my noble friend Lord Sharkey on rare diseases. I will not repeat what he said about what is needed, but I hope the Minister can give him some assurance.

I strongly support Amendment 266 on the need for a register for those who practise aesthetic non-surgical interventions. I will not repeat what my noble friend Lady Brinton and others have said about the reasons for this.

Amendment 293 requires a special register for cosmetic surgery. It is important that we have an up-to-date, comprehensive and rigorous method of assessing and registering the qualifications of surgeons safely to carry out cosmetic surgery. The question is: how is that done? I have received a briefing from the GMC, which tells me that it does not support the creation of a separate register for cosmetic surgery practitioners. Instead, the GMC believes that its proposal to move to a single GMC register that includes all doctors, anaesthesia associates and physician associates, and special annotation with work to develop relevant credentials, will provide additional assurance beyond that which could be provided by a separate additional register.

We are told that something better is coming down the track and that the forthcoming regulatory reform programme is intended to rationalise and streamline registration across all the UK healthcare regulators, and will allow the GMC to deliver an accessible, flexible and discretionary registration framework for all registrant groups. That is why the GMC believes that that will provide greater flexibility to develop and amend registration rules and improve its ability to innovate. Given the rapid development of new spheres of medicine and practices, such flexibility could be advantageous.

I understand that the GMC is now developing credentials with royal colleges and health education bodies, and that the first group of those is led by one on cosmetic surgery, plus four other disciplines. So, while I heartily agree with the intention of Amendment 293, I ask the Minister: when will the regulatory reform mentioned in the GMC briefing be completed? When will Parliament be able to see it and, in the meantime, how can we be assured that the current system gives the assurance on patient safety that is required?

I too support the noble Lord, Lord Hunt, on hospital catering and I too will resist giving my anecdote.

Lord Kamall Portrait The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
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I thank noble Lords for their contributions and for sharing their knowledge and expertise—and, in the case of hospital food, not sharing their tales of inadequate and unhealthy food. I will try to answer as many of the questions as possible but, given the experience of the noble Lord, Lord Patel, of being advised by a nurse Whip, I am keen to make sure that I do not suffer those same warnings, as it were.

On rare diseases, specifying requirements in the way proposed by the amendment would restrict the ability of the CQC to collaboratively develop its assessments of integrated care systems. However, the Government are committed to improving the lives of people living with rare diseases. The noble Lord, Lord Sharkey, rightly talked about the UK Rare Diseases Framework that we published in January 2021, which set out our key priorities for tackling rare diseases. England’s action plan will be published at the end of next month.

I have had conversations with some in the life sciences industry who are keen on the fact that we are focusing on rare diseases and extremely rare diseases, and see that as a positive. One of the things that we are trying to do across government is to make sure that we are seen as a hub for expertise in rare diseases and especially rare diseases. One of my predecessors as a Minister suffered from a rare disease. The momentum is still there in the department to make sure that we tackle the issue.

Also, the CQC, through its ICS assessment methodology, will seek to understand how system leaders are monitoring and meeting the needs of the local population, including those with rare diseases. We expect the CQC, in collaboration with system partners, to use its experience as the independent regulator of health and adult social care in England to develop an approach to those reviews. I know that noble Lords may be tired of hearing this but it is important that the legislation allows the CQC flexibility to do so.

On Amendment 240, while the Government have sympathy with the need to raise awareness, we do not consider it appropriate to put such a requirement into primary legislation. I hope I have reassured the noble Lord about our programmes and our push to raise the profile of rare diseases and extremely rare diseases. We prefer that all healthcare professional regulators require professionals to have the necessary skills and knowledge to practise safely, including awareness of rare conditions. It is the responsibility of the regulators to determine what specific role they should play in raising awareness of rare and less common conditions.

On—and I apologise if I mispronounce this—liothyronine and the power of direction, the NICE guideline on the assessment and management of thyroid disease, as the noble Lord acknowledged, does not recommend liothyronine for primary hypothyroidism. NICE states that there is not yet enough evidence that it offers benefits over levothyroxine monotherapy, and its long-term adverse effects are uncertain. If new evidence was to emerge, I am sure NICE would consider it.

In addition, we must be careful not to override NICE guidelines. But, given the concerns raised by the noble Lord, Lord Hunt, and my noble friend Lord Borwick, I would like a further conversation, if that is okay, to see what can be done in this area, as well as where it is appropriate for me to act and what conversations would be appropriate, given the noble Lord’s experience as a Health Minister.

On Amendment 178, we are committed to further strengthening the innovation metrics and to improving our understanding of how innovative medicines and these products are used in the NHS. Noble Lords will be aware that following the publication of the final report of the Accelerated Access Review, the Government established the Accelerated Access Collaborative—AAC—last year. In fact, last year alone we helped over 300,000 patients access proven innovations, resulting in 17,000 fewer hospital admissions and 140,000 fewer days spent in hospital.

As noble Lords are aware, we published our ambitious Life Sciences Vision, which laid out our priorities. We want to make sure that the NHS is seen as a partner in innovation and that research is embedded into everything the NHS does. I know that this has been raised in relation to other amendments. We are currently developing implementation plans for delivering on these commitments.

As noble Lords acknowledged, NICE is in the final stages of the review of its methods and processes, and is proposing a number of changes that will introduce real benefits to patients, including rare disease patients. The Government are also committed to developing an innovative medicines fund, which my noble friend referred to, and a consultation on detailed proposals for the fund closes on 11 February.

Finally, our rare disease framework outlines the key priorities for rare diseases in the UK over the next five years. One priority area is to improve access to specialist care, treatments and drugs.

On hospital food, although we recognise the expertise and declarations of the noble Lords who spoke, we believe that this amendment is unnecessary because the issues are already covered, either as part of the ongoing work to implement recommendations from the hospital food review or in the NHS food standards document, to be published in spring 2022.

The Government are supporting NHS England to implement the recommendations from the independent review. These recommendations cover a broad range of issues, including nutrition, hydration, healthier eating and sustainable procurement. It is important for me to learn more about this as a Minister, given what the noble Baroness, Lady Barker, said about many people not receiving the recognition they deserve. It would be appropriate, perhaps, for us to meet and follow this up.

In addition, the Government already have sufficient legal powers and obligations to enable them to consult on proposed food standards, and we have engaged with NHS trusts, the food standards and strategy group, and the NHS food review expert group through the NHS food review. We will continue to do all this.

On Amendment 264, the regulations already allow trusts to seek alternative members to contribute to the process. They can be from colleges such as the Royal College of Surgeons of Edinburgh, the Royal College of Physicians and Surgeons of Glasgow and the Royal College of Emergency Medicine. However, the Government agree that the changes proposed by noble Lords in Amendment 264 would potentially be advantageous —to put it that way—and we have undertaken to review the situation with officials.

The National Health Service Act 2006 stipulates that consultation with affected parties must be undertaken before any changes are made. Therefore, before we jump to it and agree, we are required to consult the relevant parties. It does seem a clear-cut case, but we are still under a duty to consult.

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Lord Patel Portrait Lord Patel (CB)
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My Lords, the Minister suggested that, to have any changes in the appointment of surgeons, the department would have to consult first. I assume that the only body it would need to consult is the Royal College of Surgeons, which I understand is sympathetic to the change. If that is the case, it is a simple matter, so can it not be consulted before Report?

Lord Kamall Portrait Lord Kamall (Con)
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If it is as straightforward as the noble Lord suggests, I will see if that can be done.

Baroness Wheeler Portrait Baroness Wheeler (Lab)
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My Lords, I thank noble Lords for their many expert and very informative contributions. It has been a fascinating debate on a number of issues.

On specialised care services and rare diseases, I note the Minister’s comments and thank him for some of his reassurances, but there were some issues that he did not cover, particularly in relation to my noble friend’s Amendment 178. However, I welcome the dialogue that is taking place on these issues, and the recognition of their complexity, and am very hopeful that that will continue. We will take stock to see if anything else needs to come back on Report. I also thank my noble friend Lady Pitkeathley for her support on this issue.

In the general debate, noble Lords will, I am sure, follow up on the points that they made, as the noble Lord, Lord Patel, just did. I thought the contributions of my noble friend Lord Hunt and the noble Baroness, Lady Barker, on the hospital food situation, really drove home the importance of this issue. We must make progress on it and move forward.

On the title “nurse”, strong support was expected and we certainly got it from across the House. I hope that progress can be made. The issue will not go away, as the Minister knows, and neither will the determination of my noble friend Lord Hunt to pursue the issue of the availability of T3 for thyroid patients. We hope that progress can be made on that, because again it is a situation that a must be addressed.

The noble Baronesses, Lady Masham and Lady Brinton, and other noble Lords made valuable points on the vital need for a licensing regime for non-surgical cosmetic procedures, again underlining the need for urgent, step-by-step progress, and demonstrating in particular why the current situation is unacceptable. Progress can be made. As the noble Lord, Lord Lansley, pointed out, it was seen in the recent Private Members’ Bill on Botox fillers. We need progress to be made, and steadily.

Finally, on the reference to when the review of the regulatory system will be completed—the noble Baroness, Lady Walmsley, also raised this—the issue was about timescales. We know there is a review. We are told that KPMG is on the case and has delivered its report, but we need timescales and action as soon as possible.

With those comments, I beg leave to withdraw my amendment.

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Baroness Thornton Portrait Baroness Thornton (Lab)
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My Lords, I am nearly convinced that I should have put my name to the opposition to Clause 39 standing part of the Bill.

We have had a very informed and interesting debate which comes to the heart of the balances of power that the Bill seeks to change. My noble friend Lord Hunt set out concerns over Clause 39, which gives general powers of direction to NHS England. Amendments 174A, 174B, 175A, 176A and 175 seek to mitigate the power and to put in safeguards. This is very much in tune with concerns expressed across the Committee, by the Delegated Powers and Regulatory Reform Committee, and by the Constitution Committee. Our amendments stop short of that from the noble Lord, Lord Lansley, and the noble Baroness, Lady Walmsley, but theirs is a more elegant solution in many ways. However, the Minister will need to explain why some powers of direction are required, and we on these Benches will listen very carefully indeed.

This is all part of the balance between the responsibilities of the Secretary of State, especially to Parliament, and the powers the Secretary of State has to enable them to discharge their duties. If there is a clear and consistent solution to this, we have yet to hear it. In a way, we are repeating debates we have already had in Committee. The Bill has been severely criticised as a clear and disturbing illustration of disguised legislation, and it will need to be changed. We will need to move on to proper talks about how to do that.

On whether Clause 64 should stand part of the Bill, the issue is a different one. The 2012 Act introduced the formal notion of NHS bodies having autonomy, and since 2003, foundation trusts have had some degree of at least theoretical autonomy. But in the years of austerity a lot of that has gone, and all trusts of all kinds are simply struggling to manage day by day. It may have been the noble Lord, Lord Stevens, who observed that the difference between a trust and a foundation trust was a distinction without a difference. For some years, the process of managing foundation trusts has been the same as for trusts.

We have been hearing in our recent deliberations about local flexibilities. Our scepticism about this has been strong, because it appears—and this group of amendments addresses this—that any flexibility will be as great as NHS England permits. Let us not reject autonomy. Why remove the duties to promote autonomy? Why not replace them, for example, as the noble Lord, Lord Mawson, said, with a duty around subsidiarity and localism?

I will not repeat what was said by the Constitution Committee, but it was very critical of the powers that the Secretary of State seeks to take. Indeed, I raise a different issue: the fact that I thought NHS England was undertaking implementation of the Bill before it has finished its passage through Parliament. It is all part of the same pattern. Since we have an undertaking from the Minister to respond to that concern, we will look for an undertaking from him to provide an explanation and perhaps further discussion about why he wants autonomy removed from the Bill.

Lord Kamall Portrait Lord Kamall (Con)
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I thank all noble Lords for their amendments and for challenging the issues around the power of direction. We believe that we must have the right framework for national oversight of our health system. Following the merger of NHS England with Monitor and the Trust Development Authority, NHS England will be one of the largest arm’s-length bodies in government, responsible for over £130 billion of taxpayers’ money. Without this power, we would be expanding the functions and responsibilities of NHS England without ensuring that there are enhanced accountability measures in place.

Accountability must run from NHS England to Ministers, from Ministers to Parliament, and from Parliament to the public. This is what the power of direction supports. Indeed, a number of politicians from different sides agree that if you walked out into Parliament Square and asked people who is responsible, they would expect us to have answers. Therefore, we want to make sure there is the appropriate power of responsibility.

I also want to give reassurances that we expect the situations where the Government issue directions to NHS England to be rare. Where it does happen, Ministers will of course ensure that the direction is clear, appropriate and has suitable timeframes. It is paramount that this power can be deployed quickly when required, and limiting it to specific instances, or prescribing a time limit as to its efficacy, would undermine the intent of these provisions.

That said, we agree it would be inappropriate to use this power to intervene in clinical decisions, and we have specifically exempted this in the Bill. For example, we have made sure that a direction cannot be given in relation to drugs, medicines or—interestingly, given our previous discussions—on treatments that NICE has not recommended or issued guidance on. The noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, rightly questioned the draft guidance that NHS England has given—we are trying to find a copy of that. However, we recognise the unique role the Secretary of State for Health and Social Care plays in the system. The Secretary of State could use the powers to request to see the guidance developed by NHS England before it is published, to ensure that NHS England is working effectively with other parts of the system, such as local authorities, given the concerns that both the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, raised.

On Amendments 176A and 174A, we have already included a number of exemptions to the power of direction in the Bill to ensure the Secretary of State is not able to intervene in day-to-day operational matters. There is also no intention that the power will be used to direct NHS England on procurement matters. Any decision to exercise the power will be subject to and guided by general public law principles and general statutory duties. This means, for example, that Ministers will have to use regulations where they exist, as they do for procurement, and that the Secretary of State cannot direct NHS England to breach procurement regulations, since this would be unlawful.

In relation to allocations to ICBs, NHS England uses a formula to allocate NHS resources to different parts of the country based on long-standing principles of equal opportunity of access for equal needs and informed by the independent Advisory Committee on Resource Allocation. There is no intention to use the power to interfere in this process.

In relation to local organisations, I make the point that the Bill will provide more practical autonomy at a local level by strengthening local leadership and empowering local organisations to make decisions about their population, while also allowing for national accountability. This is the approach we want to take with this power: directing NHS England only on the functions it holds in respect of local bodies, to provide necessary support and assistance to them, especially if they are failing. It is also vital that a power of this nature is accompanied with appropriate safeguards and transparency requirements.

On Amendment 174B, which relates to public interest, the clause already ensures that all directions must be made in the public interest.

On Amendment 175A, the noble Lord, Lord Hunt, has called for directions to be laid in Parliament. It is already the case that any direction issued must be made in writing and will have to be published. This will allow Parliament to hold Ministers to account for use of this power.

On Amendment 175, Ministers already work in partnership with NHS England, and any direction made would come after close working and considered discussion. NHS England will continue to make the vast majority of its decisions without direction, consulting the Government as it needs to. We believe that this power provides additional transparency by ensuring that where Ministers direct NHS England, it is clear, published and available for scrutiny by all. Any direction will come after a considered discussion with NHS England and advice, including on the impact and deliverability of such a direction. Ministers will of course consider, with NHS England and others, that the priorities being set are the right ones and whether they are affordable. However, it is important that we do not put in place too bureaucratic a structure that would bind Ministers’ hands when decisions have to be made quickly.

I end by addressing the questions put forward by my noble friend Lord Lansley and the noble Baroness, Lady Walmsley, about Clauses 39 and 64 being removed from the Bill. Clause 39 is part of our ambition to put increased accountability for the Secretary of State at the heart of these proposals while committing to the NHS’s clinical and day-to-day operational independence. We reiterate that the power will add to the existing ways that the Secretary of State and NHS England work together. The mandate to NHS England, which has been an established means of providing direction since 2013, will continue to be the main place for strategic direction-setting.

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Lord Warner Portrait Lord Warner (CB)
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Before the Minister answers that question, could I add another? We have had 10 years’ experience of NHS England under three chief executives and a number of different chairmen. Can the Minister give any examples of where the powers the noble Lord, Lord Lansley, gave the Secretary of State have been inadequate for them to give direction to NHS England?

Lord Kamall Portrait Lord Kamall (Con)
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The Secretary of State cannot issue a direction to CCGs or ICBs on any of this using this power. We have been clear that direction cannot be given in relation to drugs, medicines or on treatments that NICE has recommended or issued guidance on. I gave the example of where we want this guidance—with the draft guidelines published for ICBs. The Secretary of State would be able to intervene and ask to see that guidance—

Lord Lansley Portrait Lord Lansley (Con)
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I am sorry to interrupt my noble friend again but let us be clear: the Secretary of State would be asked to give a direction in line with NHS guidance. There is nothing in the exception in Clause 39 which says that the Secretary of State cannot give such a direction.

Lord Kamall Portrait Lord Kamall (Con)
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If my noble friend will allow me, I will have to consider that and write, and make that available to all noble Lords.

We have included a number of exceptions to the power of direction in the Bill to ensure that the Secretary of State is not able to intervene in day-to-day operational matters. For example, there is no intention to use the power to direct NHS England on procurement matters.

On Clause 64, the rationale for removing these duties is twofold. First, the pandemic has highlighted the importance of different parts of the health and care system working together. The clause removes some barriers in legislation that hinder collaboration between system partners. It facilitates collaboration between NHS England and system partners and enables broader thinking about the interests of the wider health system. Secondly, removing the Secretary of State’s duty to promote autonomy will put increased accountability at the heart of the Bill.

Overall, these clauses encompass flexibility, allowing Ministers to act quickly and set direction, while balanced with safeguards and transparency requirements to ensure that they can be held to account. I understand that there are a number of concerns about this group of amendments and others. I am sure we will have a number of discussions, but in the meantime, I ask noble Lords not to press their amendments.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, this has been a very significant debate, because when the Minister referred to the fact that Ministers needed to have the answers, I realised that the intention is to go back to command and control from the centre. It was quite clear: that is the intention. I think that is very depressing, because I do not believe that the NHS is going to benefit at all. When he said that this will strengthen local accountability—oh no, it will not. There is no local accountability whatever in this structure. I am sorry to say this again, but the fact that the Government are taking local authority councillors out of ICBs is a visible demonstration that this is a centrally driven health service from the Department of Health.

Health and Care Bill

Lord Kamall Excerpts
Lord Kamall Portrait Lord Kamall (Con)
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My Lords, I am grateful to the noble Baroness, Lady Finlay, for bringing these amendments before the Committee today. I am also grateful to all noble Lords, who have offered me two bits of advice thus far: first, “You can make your life a lot easier if you just accept our amendments”; and secondly, “Don’t worry about the other amendments, just accept mine; that’s who needs to be on the board”. I hope all noble Lords understand the sort of advice I have been given, as I consider my response.

The noble Baroness, Lady Finlay, raises an important point and there is clearly understanding and support for ensuring that there is primary care representation on ICBs. This is a topic that we have both discussed and are likely to return to. I am in danger of sounding like a scratched record, for those who remember vinyl—I am told it is making a comeback—but I hope not to, or to labour the point too much, by repeating the arguments we have already discussed at length.

We fully agree that the membership of ICBs should include individuals from a number of places and this is why we have set a requirement that ICBs should have at least one member nominated by the primary medical care providers on the board. The noble Baroness, Lady Walmsley, made a couple of very useful points here. The board should have available to it the talent and skill sets that it needs, but there should also be a balance that does not overwhelm any one set of skills. That is one of our concerns as we look at not overprescribing the make-up of the ICBs.

The noble Baroness, Lady Thornton, is absolutely correct that, given the debates we have had up to now, there will have to be more discussions on the ICBs between this stage and the next. I accept that; we will have meetings and roundtables to discuss this, and I know there might well be more amendments on the membership of the ICBs. Before those discussions, I would just reiterate at this stage that this is a floor, not a ceiling; it is a minimum requirement. ICBs are able to appoint individuals with those skills as they see fit, and we would hope that they would, to make sure that they meet the health requirements and tackle the health challenges of the local areas they cover. As the noble Lord, Lord Mawson, and my noble friend Lady Harding of Winscombe said last time we discussed these issues, it is important not to be overprescriptive and close off the opportunities to tailor boards to each local area. The noble Lord spoke very eloquently about his experience of building a board in a particular place, which might have been quite different, had it been in another place.

Turning to Amendment 41B, the noble Baroness, Lady Finlay, raised an important point about ensuring there is sufficient representation of clinicians with experience of public health and secondary care. We fully agree that ensuring that sufficient clinical expertise is available to the ICB is critical. We do so through a duty imposed on ICBs to seek advice from persons with a range of professional expertise in, for example, prevention, which noble Lords have said we should focus on, diagnosis or treatment in illness, and the protection or improvement of public health. This applies at every level of the ICB and impacts how it discharges its functions. As a result, I can assure the Committee that the clinical voice will be heard loud and clear at every level—not just at the ICB or ICP level, but in the health and well-being boards.

For the reasons I have discussed, I am afraid that I do not agree at this stage that the best way to ensure this would be by requiring two additional members of the ICB. This would take away the flexibility provided to ICBs and potentially inhibit their ability to respond to their own area’s local needs. Finally, I would not want to risk ICBs believing that their duty to seek clinical advice would be discharged solely by appointing two clinicians to their board—saying, “Okay, we have those two clinicians, that box is ticked”. The noble Lord, Lord Scriven, made a point about a staff member called Gladys, whose role ticked a box. We have to be very careful that we do not repeat that mistake with two tick boxes. Instead, ICBs should seek appropriate advice from subject matter experts. This may mean seeking advice from different clinicians for different issues and developing different models of seeking advice for different types of decision.

As I said earlier, we will have discussions about the whole ICB composition between this stage and the next. In that spirit, I hope the noble Baroness, Lady Finlay, will be a little reassured and feel able to withdraw her amendment.