Health and Care Bill

Lord Kerr of Kinlochard Excerpts

2nd reading
Tuesday 7th December 2021 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, unlike Mr Gove, the House has definitely not had enough of experts, as our welcome for the noble Lord, Lord Stevens of Birmingham, has shown.

I am an amateur, but a couple of years ago I was lucky enough to serve on the Economic Affairs Select Committee, under the brilliant chairmanship of the noble Lord, Lord Forsyth of Drumlean. I am sorry he is not here today. We wrote a report called Social Care Funding: Time to End a National Scandal, which is well worth rereading in the context of this Bill. I have been trying to work out whether the Bill does much to deal with this national scandal and have concluded, sadly, that it does not—indeed, it does not really try.

I would not have raised national insurance contributions to provide the money that the National Health Service so badly needs right now. Taxing work rather than taxing wealth is intrinsically and fundamentally wrong. But what really sticks in my craw is to brand the increase in national insurance contributions as needed to fund social care, and then to ensure that none of the money can go to social care for at least two or three years—probably never.

In my view, social care funding has to be ring-fenced. If the money is all in one pot, the NHS will always snaffle it for understandable, well-known reasons. An ageing population brings ever-increasing demands; the more successful the NHS, the greater the demands on it; and welcome advances almost always bring strongly positive relative price effects—medical inflation runs well ahead of general inflation. Medicine also provides the prestige jobs. Social care is the poor relation, struggling for attention and not getting it at all in this Bill.

I am all for improved co-ordination between hospitals, GPs and care workers, and I welcome some of the provisions in Clauses 21 and 26, as mentioned by the noble Lord, Lord Stevens, but they do not address the funding problem. Continuing to rely on local government to find much of the money seems to me to be both hypocritical and inequitable. It is hypocritical, because local government has been squeezed by a decade of cuts and because central government will always want to minimise the taxes for which it is blamed, while someone else gets the blame for inadequate local services. It is inequitable, because some parts of the country will always be richer than others.

Of course, the link to business rates is particularly regressive. The 2019 report from the Select Committee pointed out that

“Demand for social care is often greatest in areas where business is least buoyant.”


Social care needs central funding.

On staffing, current levels of pay and conditions for the 1.5 million people who work in the care sector are a scandal that the Bill does not address. Nor does it look at how to find them. In 2019, 8% came from elsewhere in the European Union and 10% came from further afield. They are insultingly and quite wrongly classified as unskilled workers, so will the Home Secretary let them in?

Thirdly, the Bill ignores unpaid carers, that unseen army of friends and family—often children—on whose kindness we trade unfairly. They need help, but the Bill does not mention them; the words do not occur in it.

Fourthly, reading the Bill, one would think that social care is for those in their declining years, and I join those, like the noble Lord, Lord Bichard, who find Clause 140 shockingly regressive. The fact is that well over 50% of what is now spent nationally and locally is to help people of working age, not to fund care homes but for daycare centres, home visits and helping those with disabilities. The provision of social care is notoriously patchy across the country. The Bill will not cure that, and I do not think that a cure will be found until social care has its own ring-fenced national funding, its own national standards and, in my view although not that of the Select Committee, its own national service: an NCS to match the NHS.

So my biggest concern about the Bill is what is not in it. A fortnight ago, the Health Secretary told the other place that it reflects the Government’s

“commitment to end the crisis in social care and the lottery of how we all pay for it.”—[Official Report, Commons, 23/11/21; col. 311.]

I only wish that were true, but I fear that an opportunity is being missed.

I will make one last point very briefly. I was struck by Mr Javid’s rejection of the suggestion that he be required to obtain the consent of the relevant devolved Government before making regulations under the Act in an area of devolved competence. Surely that is what the devolution settlement requires? Whatever happened to the Sewel convention? I rather hope that a version of Amendment 82, which was rejected in the Commons at the Government’s insistence, will be retabled in this House.

Access to Palliative Care and Treatment of Children Bill [HL]

Lord Kerr of Kinlochard Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Friday 7th February 2020 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, my fox has just been shot: I was going to make exactly the same point that the noble Baroness, Lady Hollins, made at the end of her speech. I, too, congratulate the noble Baroness, Lady Finlay, on her persistence. I, too, looked back to see what happened the last time we had this debate; it was in June. I, too, was struck by how the noble Baroness, Lady Barran, ended by saying that no other area of clinical care was mandated in primary legislation. I had not spotted that that was wrong. I had spotted that the argument she went on to make was rather bad. She said that to put such care in primary legislation would set a dangerous precedent. I recognised that move very well because I used to work in Whitehall and I know that when one could think of no good argument to defend one’s department’s position, one would resort to “dangerous precedent”, “unripe time” and, if one was in the Treasury, which I was for a time, “outwith the ambit of the Vote”. Actually, that is the best one because nobody understands what it is and nobody can challenge you on it.

How would it set a dangerous precedent if this Bill were to pass into law and lay this duty on commissioners in primary legislation? I do not understand what Trojan horses will gallop out if one opens that Pandora’s box. It seems to me that it is in no way dangerous. It would correct an anomaly. It is clearly the case, and clearly scandalous, that palliative care is so unevenly distributed across the country and that the level of investment in it is wildly uneven. That should be put right. It seems to me that it would not be a dangerous precedent and that the time is ripe. After all, this House has twice passed previous versions of the Bill.

I congratulate the noble Baroness, Lady Finlay, on this time getting the Bill on to our agenda so early in the Session. It seems to me that this time, we are going to get it on to the statute book. I very much hope that the Government will assist.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)]

My Lords, I thank all noble Lords who have taken part in what has been an important and moving debate. I particularly thank the noble Baroness, Lady Finlay. Her passion and commitment to improve the quality and experience of end-of-life care for everyone in this country are well known, both in this place and outside these walls, where her experience is known for not just the passion that she expresses but the way she has touched individuals’ lives. I also congratulate and pay tribute to my noble friend Lord Brownlow on what was an outstanding and moving maiden speech. It is quite clear that he has a great deal to contribute to this place and I look forward to his contributions in many debates to come.

Obviously, the provision of high-quality end-of-life care is an issue that each of us will care very personally about, and I therefore understand the intention of the Bill. It is the third time I have spoken on this matter in as many parliamentary Sessions. In responding, I shall address the provisions of Clause 1, and then Clause 2, which addresses a separate and equally important matter.

In common with previous Bills tabled by the noble Baroness, Lady Finlay—I would like to call her my noble friend—Clause 1 of this Bill seeks to introduce a range of measures relating to the provision of palliative and end-of-life care services, which have already been rightly tested in debate. These would create new primary legislation and amend existing legislation in Section 3(1)(c) of the National Health Service Act 2006, to create new duties on CCGs to provide some specific measures listed in the Bill.

Although I take the points raised by the noble Lord, at the moment, no other clinical area is provided for in such a detailed, prescriptive way as this Bill would create, although there are measures which were noted by the noble Baroness, Lady Hollins. As the noble Baroness, Lady Finlay, will know from responses to her previous Bills, legislating in this kind of detail on what a local commissioner must provide with regard to a clinical area is contrary to the principle of the autonomy of a clinical commissioning body, which was established in the Health and Social Care Act 2012, to determine what services it will commission based on the assessed needs of its local population. CCGs are already subject to the duty to commission health services based on local needs and palliative care is covered by this general stipulation. In addition, there is existing national commissioning and clinical guidance on the delivery of high-quality end-of-life care, which I know many in this House will be very familiar with.

Concerns have also been raised that legislating that care should be provided in a range of locations for patients—essentially, legislating for choice in end-of-life care—risks creating some tension between patients, clinicians and families, where patients cannot receive specialist palliative care in their home or care home because of their level of clinical need or the suitability of the accommodation. That may be debated further.

The Bill contains a separate provision which would mean that hospices can access drugs that would be available on the NHS on a no-cost basis, and that commissioners should pay for this. Currently, a CCG pays for a hospice resident’s medicines only, first, where it has commissioned the hospice care or, secondly, where they are prescribed by a GP and the cost has been allocated to that CCG under Schedule 12A to the NHS Act 2006. This would represent an expansion of CCGs’ liability—

[Lord Kerr of Kinlochard]

The duty as defined in Clause 1(1) would require clinical services commissioners to arrange for the provision of palliative services,

“to such extent as it considers necessary and appropriate”.

That is not a particularly specific duty in relation to anything else in the Bill. I do not quite follow the argument that if something as specific as the Bill was put into primary legislation, it would create a dangerous precedent—an anomaly, or whatever. The duty is widely expressed here and not particularly specific: they must consider it necessary and appropriate.

[Baroness Blackwood of North Oxford]

It has been seen that this duty would contradict the other legislation, as it stands, where it allows for autonomy for the CCGs. We have already expressed that we are happy to discuss this further with the noble Baroness, Lady Finlay, to explain it. On the question regarding prescription medications, I was going on to explain—