Health and Care Bill

Lord Lansley Excerpts

Lords Hansard - Part 2 & Committee stage
Wednesday 26th January 2022 Lords Chamber

Moved by

[Lord Lansley]

162A: Clause 26, page 37, leave out lines 23 to 30
Member’s explanatory statement
This amendment, along with another to this Clause, would remove the power of the Secretary of State to set, and from time to time revise, objectives and priorities for the CQC, but would require the CQC to consult the Secretary of State when it revises indicators of quality for the purposes of assessments under subsection (4).

[Lord Lansley (Con)]

My Lords, the purpose of Clause 26 is to introduce a process by which the Care Quality Commission inspects integrated care systems. The structure of this is the subject of my Amendments 162A and 164A. Those two amendments go together—they are not separate, but entirely linked. The purpose of Amendment 162A is to remove the process by which the Secretary of State sets objectives and priorities for the Care Quality Commission in undertaking such inspections of integrated care systems; Amendment 164A then seeks to insert a process by which the Secretary of State, and indeed others, are consulted by the Care Quality Commission over the quality indicators that it would use to assess the quality and performance of integrated care systems.

A bit of background would be helpful for noble Lords in this respect. Think back to what the Care Quality Commission’s existing statutory arrangements are in relation to reviews and performance assessments of existing bodies in the National Health Service. The structure is very straightforward. The commission is asked to set quality indicators, to consult on those and then to review against them and produce reports. I know from personal experience that the Secretary of State cannot direct the Care Quality Commission to undertake a particular review, but they can certainly make a request, and their role as steward of the whole healthcare system has certainly led Secretaries of State to do that from time to time. But the legislation does not permit the Secretary of State to direct the Care Quality Commission in how it does its job; it is an independent body corporate. There is intrinsic merit in the Care Quality Commission, as an inspectorate, operating independently. The structure of this clause in this Bill is at odds with the way in which the existing legislation is structured in the 2008 NHS Act as amended. The effect of these two amendments would be to restore the independence of the Care Quality Commission in undertaking its activities and in the way in which it goes about its job.

The Government’s drafting of the legislation is wrong anyway. There are references to objectives and priorities. The priorities are referred to in new subsection (3), inserted by Clause 26(2), which says that they

“must include priorities relating to leadership, the integration of services and the quality and safety of services.”

I have to say that this is teaching grandmothers to suck eggs. There is no way in which the Care Quality Commission is not going to incorporate such indicators of quality. We know that from the generic nature of the quality indicators that it uses generally for existing NHS bodies. The reference to setting objectives is not only novel but completely undefined. The Secretary of State can set whatever objectives they wish to; we do not know what they are and there is no indication of what they might be. Taking out references to objectives and priorities seems to me to be a very good thing.

As it happens—I declare my own role in this—in the 2012 legislation there was previously a process by which the Secretary of State set standards for the Care Quality Commission in determining what the quality indicators should look like. We actually took that out of the 2012 legislation, precisely on these grounds: that the Care Quality Commission is, and should be, as independent as possible.

I think this clause proceeds from the mistaken apprehension that the Care Quality Commission is a part of the management process of the NHS. It is not. If the Secretary of State wishes integrated care systems to proceed in any particular way, the Secretary of State has the means to do so available via the mandate; the Government plan to add specific powers of direction; and NHS England has duties that go in exactly the same direction. The Care Quality Commission is not part of the management process for integrated care systems; it is an inspectorate. If—and this is a risk we must avoid—the Secretary of State were directly intervening to set objectives for integrated care systems to be inspected subsequently by the Care Quality Commission, whereas NHS England is itself setting objectives for integrated care systems through its responsibilities and duties, those two may come into conflict.

For all those reasons, the Government would be well advised to accept these two amendments and put the Care Quality Commission into the independent role in relation to ICSs that it, and people working in the National Health Service, would recognise as being its role. I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, the noble Lord, Lord Lansley, has set out the tensions underlying the Bill about returning to the Secretary of State powers over independent, arms-length bodies; specifically, in this amendment, the inspections carried out by the Care Quality Commission in its role as a regulatory body. He rightly reminded us of the current arrangements, which give the CQC the ability to set its indicators and which, frankly, work well. I will not repeat his arguments, except to say in a slightly wider context that almost every piece of legislation brought to Parliament by this Government has given Ministers more powers—including, as in Clause 26, the power to intervene and to change remits.

The noble Lord’s amendments maintain the independence that the CQC—and other regulatory bodies—need to be able to inspect and make rulings without fear of favour or influence from politicians, while ensuring that the CQC must consult the Secretary of State when it revises indicators of quality for the purposes of assessment. That seems to me to provide the requirement for the CQC and the Secretary of State to engage in dialogue, but without the political intervention outlined in Clause 26(2) and (5).

Can the Minister explain why the Government feel the need to remove the independence of the CQC—whether this is an issue of management, as the noble Lord, Lord Lansley, said—and how giving the Secretary of State these powers can maintain the independence of a regulatory body?

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[Lord Lansley (Con)]

I am grateful to my noble friend for that explanation, which, I am sorry to tell him, wholly fails to provide reassurance. First, he was wrong, in the sense that he maybe implied that my amendments would have removed the Secretary of State’s requirement to approve the indicators on which the commission chooses to base its reviews. That is left in at new Clause 46B(4)(b), so the approval of the Secretary of State for the indicators would remain. What is being taken out by my amendments is the requirement for the Secretary of State to set objectives and priorities. I am afraid that everything that my noble friend said went to support my view that there is an erroneous perception on the part of the Government that the CQC must be turned into an integral part of the management of the NHS and the integrated care system. That is simply not the case.

I am grateful to the noble Baroness, Lady Brinton, for her support. I quibble with her slightly in a pedantic way. We should not talk about the CQC as just another regulator; it is the inspectorate. In my experience, inspection should never be regarded as a substitute for management. Quality is integral to the management of the service. The CQC is there to determine and review whether that quality is being achieved, which is why I am perfectly happy for the Secretary of State, and indeed others, to be consulted and for the Secretary of State to approve the indicators of quality that the CQC arrives at. Frankly, however, for the Secretary of State to go further and start to prescribe the way the objectives of the CQC are set in this way is directly at odds with how the CQC reviews and reports on other NHS bodies. I can see the drift of this. If we accept it, we will end up with the CQC being told by the Secretary of State what its indicators of quality are for every NHS body and setting objectives and priorities for the CQC right across the board, which is completely at odds with the independence of the CQC.

I shall make one final point. I am grateful to my noble friend Lady Altmann. Exactly the same argument applies to Clause 137, although I have not tabled amendments to it. It creates the CQC’s additional scrutiny and performance assessment of social care functions. We should therefore come back to precisely the point that she is talking about, as she suggests.

I hope my noble friend the Minister will take my point and that we might have further conversations between now and Report. However, I have to tell him that it is not just me who raises these points; I have been asked by representative bodies within the NHS to do so. We should take them seriously and hope that between now and Report we might see whether there are better ways to structure Clause 26 to secure both the Government’s objectives and what the NHS would expect to happen. I beg leave to withdraw the amendment.

Amendment 162A withdrawn.

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As we have heard from the noble Lords, Lord Hunt of Kings Heath and Lord Patel, this is a very easy issue to address. There is no objection, and it would send a very powerful signal, with regard not only to the importance of professional participation in the appointment of future consultants but to the recognition that, although health is a devolved matter, we recognise the United Kingdom as a single entity in so many questions for the provision of health and, in particular, the training and development of healthcare professionals and their ability to work across our entire country.

[Lord Lansley (Con)]

My Lords, can I just take us back to Amendment 266, to which I have added my name, before we lose sight of it? It was helpfully introduced by the noble Baroness, Lady Wheeler, and its purposes were explained very well by the noble Baroness, Lady Brinton.

I just want to add a bit of context, which I hope will commend itself in particular to my noble friend Lord Howe on the Front Bench, in that he and I tackled together the PIP breast implant problems that emerged in December 2010 and which led directly, subsequently, to us asking the distinguished first medical director of NHS England, Bruce Keogh, to undertake an inquiry. Since the report of that inquiry, we have made considerable progress. Most recently, noble Lords will recall that the noble Baroness, Lady Wyld, took through the Private Member’s Bill from Laura Trott in the other place to assist in the regulation of Botox treatment for under-18s.

The point is that there is still unfinished business. Amendment 266 relates to giving the Secretary of State the power to set up a licensing process for non-surgical cosmetic procedures—not through the CQC in this case, because the CQC regulates healthcare professionals, but almost certainly through the mechanism of asking local authorities to undertake a licensing process. It gives the Secretary of State all the flexibility that we have grown accustomed to legislation having to give them, but it does so in a way that enables the regulation that would be brought in using this power to be proportionate, being very clear that it should apply only to those activities that present a significant risk. It makes sure that it takes advantage, for example, of the national standards that have been put in place by the Joint Council for Cosmetic Practitioners. It would be very helpful in trying to mitigate the risks associated with non-surgical cosmetic procedures.

Amendment 293 in my name is a follow-up to a Private Member’s Bill that made no progress. It again follows Bruce Keogh’s report and looks to give the General Medical Council the legislative opportunity and requirement to bring forward a scheme to put surgeons who have a specialty relating to cosmetic surgery on to its specialist registers. With Amendment 293, we have the benefit of being able to do this by virtue of the recommendations in recent years from the Cosmetic Surgery Interspecialty Committee of the Royal College of Surgeons. It gives us an opportunity to give those who wish to undertake surgical treatments for cosmetic purposes the opportunity to see who is on the specialist register. All this relates to the safety of those undertaking cosmetic treatments, which is a large number of people; there is a large amount of activity and a significant need for the consumers of these services to have a degree of protection. I think we can make progress on that.

In the rest of this group, we have another opportunity to take action. My noble friend was right when she spoke about a more general approach. She will recall that, in April 2014, the Law Commission produced its recommendations on the regulation of healthcare professionals, so there is an opportunity to do something here. If we do not do it in this Bill, it would not hurt for the Government to tell us more about how they might make progress on the broader regulation, in addition to what is being proposed here.

I want to mention two other things. First, we had an earlier debate about access to innovative medicines. This is another opportunity for my noble friend to tell the Committee that NHS England is proceeding with its consultation on the implementation of the innovative medicines fund. Secondly, we do not need to repeat the short debate we had in Grand Committee not so very long ago under the auspices of my noble and learned friend Lord Mackay of Clashfern, who enabled us to present a lot of arguments about the future of NHS Resolution and clinical negligence within the NHS. We do not need to repeat that, but Amendments 178 and 297E would of course help us in that direction, not least by repealing the redundant NHS Redress Act 2006, which has never been implemented. With that thought, I pass the ball to the noble Lord, Lord Storey.

[Lord Bethell (Con)]

My Lords, I support Amendment 266 in the name of the noble Baroness, Lady Merron, and Amendment 293 in the name of my noble friend Lord Lansley for all the reasons that my noble friend just articulated. I will not repeat them as he put them so very well. However, I would say to the Minister that, coming from the innovation space, I can see that the technologies for both cosmetic surgery and non-surgical cosmetic interventions are improving all the time. There is an incredibly rapid pace of change. They are set to continue to get better and better, so the marketplace is getting more sophisticated and their popularity is also exploding. We have been briefed on evidence about the role of social media in promoting non-surgical cosmetic interventions in particular. This is exciting, because it is great that people have access to these interesting products, but also extremely worrying, because not all the surgeries and non-surgical interventions are successful. It is the right time for the Government to intervene, so that we have a register of cosmetic surgical practitioners and a much clearer regulatory regime for non-surgical interventions.

I am pro cosmetic surgery. As a young boy, I had an inherited condition of having very big, sticking-out ears, which my father had and my cousins and aunts have, and it was miserable. I had them pinned back and I am very grateful that that happened. It meant that I could be a much more confident person as I grew up. I am pro cosmetic interventions; if people want to use the benefits of medicine to improve their confidence in the way they look, I applaud that. However, standing next to my noble friend Lady Cumberlege, I am also aware of Bruce Keogh’s extremely good report and the very large number of interventions that have not gone well. I know that the Minister’s instincts are not to intervene unless absolutely required and my suggestion to him is that we have hit that moment. The marketplace is exploding and now is the right time to intervene.

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[Lord Lansley (Con)]

My Lords, perhaps I may make two quick points. At an earlier stage in the Committee, using the example from the noble Lord, Lord Mawson, in relation to Bromley by Bow and north-east London, I asked why the legislation cannot allow clinical commissioning groups, as they have established themselves over years, to continue as place-based committees or subsidiary elements of an integrated care system. I am sure that many of them would be willing to do so; we should allow them to do exactly that, because there is otherwise a gap in relation to how large ICBs will do their place-based work.

Secondly, the noble Lord, Lord Hunt of Kings Heath, referred to what I said about provider collaboratives. I still think it. Where are we going to end up with this? It will be with NHS England having within it, as each integrated care board has within it, the provider interest and the commissioner interest. The Government purport to be abolishing the purchaser/provider split. Every Secretary of State prior to the former Secretary of State, Matt Hancock, seemed to believe in it, with the exception of Frank Dobson. There was a reason why we did that: because it is a fact. We might legislatively abolish the purchaser/provider split, but, in reality, it will exist. As my noble friend Lord Hunt of Wirral said earlier, if that conflict of interest is not properly recognised and managed, it will emerge with potentially damaging consequences. Transparency about how provider interests are to be properly managed inside the NHS is not something I yet see in the substance of the Bill. I hope that my noble friend on the Front Bench will agree to think hard about this and perhaps talk about how we might give transparency and accountability to that conflict of interest.

[Baroness Tyler of Enfield (LD)]

My Lords, I have added my name to Amendment 165 in the name of the noble Lord, Lord Hunt. This is a small but important group of amendments.

I have added my name to the amendment because I am interested in what is happening to primary care and particularly the voice of GPs in the new arrangements. Frankly, we are not hearing much about them. As it stands, the legislation will place NHS trusts and foundation trusts in quite a privileged position in deciding how plans are made and resources allocated. I am not quite sure where the voice of GPs comes into the new arrangements. I understand that NHS England has commissioned a review of the role of primary care in the NHS structures, but my understanding is also that it will not report until after the Bill has been passed if we continue with the current timetable. Frankly, by then, it will be a bit late to make sure that we have got the arrangements absolutely right.

It is right that primary care commissioning is undertaken at a local level by people with relevant knowledge and skills, and with the necessary experience of what primary care needs to look like at locality level. That is why it is right that the new place-based partnerships are to be given that commissioning role. However, like the noble Lord, Lord Hunt, I think it is important that these primary care commissioning arrangements are established in statute, because it is only if that happens that Parliament will be clear about the accountability arrangements and the governance and leadership. It is also important that there is real transparency in the system. At the moment, it all feels a bit opaque. I hope that the Minister can give some assurances on this point.

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Again, I say that you cannot consider this group of amendments without taking account of the noble Baroness’s group of amendments, which are equally important, and the other accretions of power that the Minister is taking. I hope the Minister will give a proper justification—I have not yet heard one—for why the Secretary of State feels the need to take these powers. I beg to move.

[Lord Lansley (Con)]

My Lords, I shall intervene relatively briefly. The noble Lord, Lord Hunt, quite rightly said that this is a significant departure from the intentions of the 2012 legislation. The 2021 Act, among other things, created the body that is now NHS England and gave it independence. None of that independence was intended to mean, nor has proven to, that it was not responsive to even the day-to-day wishes of a Secretary of State, as I am sure the noble Lord, Lord Stevens, would verify. What it did put in statute was that, if the Secretary of State wants to set something as an objective of NHS England, they put it in the mandate. If the Secretary of State requires a change to those objectives, they publish a revision to the mandate.

Going beyond it is, I think, the product of circumstances where we had a Secretary of State who was encountering an emergency and thought he could press lots of buttons and things would happen, but pressed some and they did not. I think, even in his experience, that was more outside NHS England than inside it— I may be wrong, but that was certainly my impression. The point is that the Secretary of State did not even realise what powers he had in an emergency; they are all there and he was not required to change the mandate, because it was an emergency. In a public health emergency, none of this, strictly speaking, is within the same bounds.

Ministers have quite rightly said that this is the Bill the NHS asked for. But Clause 39 is not the clause that the NHS asked for; it is the opposite of what it is asking for. There are many practical issues. The noble Lord, Lord Hunt, is right; if it appears, including to the senior people and bright youngsters, that power is going to shift from NHS England back to the Department of Health and Social Care, they will go and work in the department. One of the things I was most pleased about was that some of the brightest and best, including civil servants in the department who I knew well, went to work in NHS England, because they thought, “This is a great future.” That is terrific, because one of the problems was that NHS managers were being imported into the Department of Health, rather than bright policymakers going to the NHS. The NHS is too important an institution for it not to have the best possible policymakers under its own purview.

The noble Lord, Lord Hunt, and the noble Baronesses, Lady Thornton and Lady Walmsley, have done a sterling job in trying to mitigate a general power of direction for the Secretary of State. Frankly, I have not heard a case for it, it is contrary to where we are and where we need to go, and the simplest thing is to simply take Clause 39 out of the Bill.

[Lord Warner (CB)]

My Lords, it is a delight to follow the noble Lords, Lord Lansley and Lord Hunt, on this set of amendments, with which I totally agree. I want to dilate for a few moments on the realpolitik of being a Minister in the great, august organisation called the Department of Health and Social Care. I can say some things that the noble Lord, Lord Lansley, as a former elected Minister, possibly cannot.

When I ceased to be a Parliamentary Secretary and was promoted to work with the big boys and girls as a Minister of State, and had to deal with issues such as reconfiguration, poor performance and so forth, I became used to regularly meeting elected MPs who wanted to tell me about the errors of their ways in decisions that had been taken in the public interest. There was a steady flow of them, which, if I may say, tended to get bigger the nearer you got to an election. If people wanted to go through the archives, I would refer them to the history of Lewisham Hospital and of Chase Farm Hospital, to name but two.

Very often in these situations, it is not about closing a whole hospital but about re-engineering—we will come to some of this in the next group. I give the example of stroke services in London. It is re-engineering a particular set of services, which the local MP is then put up for trying to ensure that change does not happen. That is where you need to help Ministers do the right thing, when it is in the public interest to make changes. The amendments from the noble Lord, Lord Hunt, help Ministers do the right thing.

The point the noble Lord, Lord Lansley, made is absolutely valid. In many of these circumstances, it becomes very difficult if you are an elected Minister—as distinct from an appointed Minister, who does not have to face the electorate—to resist some of the local pressures to avoid change which would be disadvantageous to a local hospital. For those realpolitik reasons, I think the noble Lord, Lord Hunt, is on the right track and we should support the amendments.

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[Lord Lansley (Con)]

Let me give my noble friend one simple example of how this could shift decision-making from NHS bodies to the Secretary of State. We discussed previously, in an earlier group, the availability of in vitro fertilisation services. There will be pressure on the Secretary of State to issue a direction that the NICE recommended availability of in vitro fertilisation services should be provided. By what means is the Secretary of State going to say, “No, I can’t issue such a direction”? It is entirely within his power to do so. The pressures will all be on the Secretary of State to issue directions to do things that the NHS locally may choose or choose not to do. The power will shift. Is he aware of what he is wishing for?

[Lord Warner (CB)]

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 (Con)]

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 (Con)]

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 (Con)]

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.

Health and Care Bill

Lord Lansley Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[Lord Kakkar (CB)]

My Lords, I rise to support the amendment in the name of my noble friend Mawson and others, and in so doing congratulate him on his thoughtful introduction. It is clear that one of the most important aspects, and the purpose, of this Bill is to ensure integration at a local level. But the purpose of that integration must surely be—as has been confirmed by the Minister—to improve health outcomes for the entire population. It is well recognised that that can happen only if the social determinants of health in local communities are addressed appropriately and effectively, in a way that our health system has not been able to do to date.

If we accept that to be the purpose, then local integration—that focus on and understanding of the social determinants of health—and responding to local needs must be secured in the organisation of the integrated care systems and their boards. As we have heard from the noble Lord, Lord Mawson, and others, to achieve that, one must not only understand, appreciate and hear the local voice, but be clear that the culture that is established in these systems is responsive to those voices and is determined to act on them and the understanding of the local situation—particularly those social determinants that extend far beyond what has been and can be delivered through healthcare alone—and focus on other issues such as housing, education and employment. It would be most helpful if the Minister, in answering this debate, could explain how that is going to be achieved in the proposed construction of the integrated care boards.

Of course, one recognises that Her Majesty’s Government are deeply committed to this agenda. But it is clear that if these boards are not constructed in such a way that they can change the culture and drive, in an effective and determined fashion, a recognition of those social determinants and create opportunities at a local level to address them, much of the purpose of this well meant and well accepted proposal for greater integrated care at a local level will fail.

[Lord Lansley (Con)]

My Lords, I did not originally intend to contribute to this debate. However, I would like to thank the noble Lord, Lord Mawson, for his Amendment 41A, which, although modest in scope, has initiated an extremely useful debate and raised a lot of important issues. I do not want to add a lot of material to the debate, but I want to focus on the questions that have emerged from it.

Health and Care Bill

Lord Lansley Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 11th January 2022 Lords Chamber

[Lord Davies of Brixton (Lab)]

My Lords, I shall speak to my Amendment 21, and I support the other amendments in this group. Before I reach the meat of my remarks, it seems a long time ago, but two hours ago we were discussing mental health. I did not intervene in that debate, although the issue is very close to my heart. I totally support everything that was said in that debate, but I was gearing myself up for this contribution, not knowing that I would have a two-hour interlude.

This Bill in general is not the answer to the immediate and long-term crisis in the NHS and social care sector, but the particular concern I raise through my amendment is the widespread fear that the new arrangements being proposed will lead to the growth of the private provision of healthcare, with multi-million-pound private sector service contracts leading to the loss of the public service ethos of the NHS. I have no doubt that the Minister is well aware of these concerns. It is no secret; they have been widely discussed in the columns of the national press and professional journals. For example, Jan Shortt, the general secretary of the National Pensioners Convention, has said:

“This Bill truly represents a creeping backdoor privatisation of health care services, which despite government claims, will badly impact on the patient care across the UK.”


So I do not think that there is any question that these concerns exist.

The Government have promised that there are no plans to privatise the National Health Service, but that is quite different and distinct from the privatisation of healthcare services, shown specifically, or most starkly, by the increasing number of US-owned private companies which already provide them for the NHS and obviously seek an expanded share of the market. It is worth noting the not sufficiently reported or commented on fact that the Chancellor of the Exchequer, Rishi Sunak, was unable to attend a meeting with our hard-pressed services sector because he was busy in discussion—according to a report in the Financial Times—with US healthcare providers when he was in California recently. The Government should not insult us by suggesting that there is not an issue here of the growth in the provision of healthcare by commercial interests.

Even with the amendments to limit private companies being represented on integrated care boards, there is absolutely nothing here to stop private companies playing a part in other ways—for instance, clearly at the sub-system level via place-based partnerships and provider collaboratives. There is this whole word salad of different ways of describing these organisations operating at that level below, for or with the integrated care boards in providing services. This is the Trojan horse that will bring private provision within the walls of our publicly provided NHS.

NHS England states clearly in guidance:

“Independent sector providers can be members of a provider collaborative, but the extent of their participation may depend on the specific form and governance arrangements and the nature of a particular decision being taken by the collaborative.”


Dig through these words and they mean that we just do not know what arrangements will actually be established in this new world of provision. Guidance from NHS England also states:

“The Health and Care Bill, if enacted, will enable ICBs to delegate functions to providers including, for example, devolving budgets to provider collaboratives.”


It is this uncertain nature of the exact administrative arrangements that will apply under the new scheme that leads to the level of concern. As place-based partnerships and provider collaboratives are allowed to include private companies, the Government’s rhetoric about protecting the independence of ICBs is hollow. For all the talk from the Minister in the House of Commons of recognising that

“the involvement of the private sector, in all its forms, in ICBs is a matter of significant concern to Members in the House”—[Official Report, Commons, Health and Care Bill Committee, 14/9/21; col. 258.]

the Government have not taken the action needed to stop private companies exerting excessive influence in decision-making in the health service.

The defence against such developments will be in the hands of the ICBs, hence the concerns expressed today about their membership. This is the Minister’s opportunity to assure me, your Lordships and the many bodies outside this House which have expressed concerns that our concerns are misplaced. Simply dismissing them will not work. I note the remarks of my noble friend and maybe my amendment is not the best way of achieving my objective of getting the Government to put boundaries on commercial development within the health service, but I hope that the point of principle will be addressed and will not hide behind the limitations of my amendment.

[Lord Lansley (Con)]

My Lords, I would like to intervene on this group, in particular to support Amendment 19. I am grateful to the noble Lord, Lord Sharkey, and the noble Baroness, Lady Wheeler, for tabling it. As the noble Lord said, it gives us an opportunity to probe the arrangements for the commissioning of specialised services in the future. I hope my noble friend will be able to clarify that tonight and perhaps add further clarity as we go on.

I want to talk about this because I remember that a decade or more ago, even though the NHS was a single organisation with a single responsibility for specialised commissioning, most of this was in fact delegated to strategic health authorities. My experience was that, with the separate budgetary responsibilities of strategic health authorities and their ability to commission those services themselves, we ended up with considerable disparities and inconsistencies in the commissioning of specialised services. We know this must be the case because, after NHS England took over the responsibility in 2013, one of its most challenging tasks, not least in financial terms, was to secure a common specification and common service standards. The objective was of course not to level down, but level up, in the finest traditions of the present Government, and that levelling up was expensive. As we will all discover as time goes on, levelling up is expensive by nature. It was challenging to NHS England at a point when resources were highly constrained.

That having been achieved, we are all very clear that we do not want to go back to the bad old days but—I thought the noble Lord, Lord Sharkey, was very fair about this—there is a counterargument. Many patients, even if they have a less common condition, actually receive much of their healthcare locally, from local providers through local commissioning arrangements. They need to be integrated, and things such as access to chemotherapy for common cancers or diagnostics through the community diagnostic centres, as they are created, may be more appropriately commissioned for those patients by a local integrated care board rather than NHS England directly.

However, as the noble Lord, Lord Sharkey, referred to, there is the principle of setting commissioning at appropriate population levels. As I know from experience, the NHS can consume endless time and energy trying to work out the geography of these things and what population is right for what purpose. If nothing else, even if they multiply the tiers from place-based to ICSs to regional teams to NHS England, the present arrangements at least give specialised services a chance to be commissioned and led at an appropriate population level. For many specialised services, that is not at the level of an integrated care board, as the population may be too small for them.

We know that highly specialised services will be retained by NHS England. If some services that need to be integrated locally, for the benefit of patients, are with the ICSs, there is none the less a question, about which we need to hear more, on the extent to which NHS England will manage the commissioning by using regional teams to try to maintain national specifications and service standards through their own responsibilities.

An opportunity that has not been referred to and is not in the Bill, but may be useful in practice, is to learn from the experience and, I hope, capability of the specialised commissioning team at NHS England and have a specialised commissioning support unit. It could stand behind the regional teams or even the ICSs, if appropriate, to help them have the capability to commission effectively. Amendment 19 asks the right question: this responsibility should not be delegated to individual integrated care boards unless NHS England is clear that the capability subsists at that level. We have to accept at the start that it probably does not.

I referred earlier to outcomes which, for providers in the NHS, are often at their highest in specialist hospitals. We have a dozen or more specialist hospitals, of which the majority of services—up to 80% in one or more cases—are commissioned as specialised services. We want them to have a more coherent structure of commission; we do not want them to have dozens of contracts with integrated care boards, all over the country. I hope that NHS England, in the regime that puts commissioners and providers close to one another, at least looks out for specialist hospitals and says, “We should have a lead commissioner of these services”. It may well be that the lead commissioner is in NHS England and sets up the contract there.

My final point is on the very reasonable question asked by the noble Lord, Lord Sharkey, about budgets. Why were strategic health authorities differentiating in the way they did? Their budgets forced them into different decisions in different places and, over time, that increased the degree of divergence and inconsistency. The same will happen with ICSs, unless some very clear countermeasures are taken. They could be ring-fenced budgets or some other such mechanism, but the budgets might have to be held not locally but centrally, even if some of the functions are delegated more locally. We have to be aware that, when you start to shift and delegate budgets, it is very hard then to maintain national service standards. That should be done only when it is very clear that the safeguards are in place. I hope we can use the debates on the Bill as a mechanism to give those who rely on specialist services and the providers of them greater clarity and assurance about how they will go about that in the future.

Health and Social Care

Lord Lansley Excerpts

Thursday 9th September 2021 Lords Chamber

[Baroness Evans of Bowes Park (Con)]

This has been an intractable issue. If all parties had managed to deal with it better, people in the situation the noble Lord mentioned—for whom we have a lot of sympathy—would have been helped. Unfortunately, that is not the case. We have announced a package that will begin with the new cap in October 2023.

[Lord Lansley (Con)]

My Lords, I very much welcome the additional resources for the NHS and social care, but will the Government increase and accelerate the resources for social care? Everyone in the NHS knows that only by increasing the capacity in local authority-funded social care can they relieve the pressures on the NHS. The House will recall that we legislated in the Care Act 2014 for a Dilnot-style plan. It is now more than 10 years since he submitted that plan to me as Secretary of State. We should bring it into force, and we can and should do so by April 2022.

[Baroness Evans of Bowes Park (Con)]

I am afraid I have already set out the timescale on which we are doing this. This is a complex area and, as I said, the new cap will come in in October 2023. As I said, the funding in this package covers the cost to local government of implementing the charging reforms, including the cap, the increased capital limit moving towards paying a fair rate for care and the associated implementation costs. We will be working closely with local authorities to make sure that we can implement this to the benefit of all our citizens.

Covid 19: Winter Plan

Lord Lansley Excerpts

Tuesday 24th November 2020 Lords Chamber

[Baroness Evans of Bowes Park (Con)]

I agree with the noble Lord, and that is exactly why we are offering all local authorities in tier 3 areas the opportunity to participate in the sort of programme that he has suggested. It will be called the kick out Covid testing challenge and will build on the positive results from the Liverpool pilot.

[Lord Lansley (Con) [V]]

My Lords, my noble friend will be aware of the risks associated with large numbers of students returning home in the run-up to Christmas, and of course in some cases travelling between higher tier areas to lower tier homes. Will she ensure that the Government will work with universities so that all of them provide two tests for each student to ensure that they return home only when they have a negative test result that is immediately available?

[Baroness Evans of Bowes Park (Con)]

I can certainly reassure my noble friend that we are working closely with universities. As he will know, between 3 and 9 December, students will be allowed to travel home on staggered departure dates set by universities. Tests will be offered to as many students as possible before they travel home for Christmas, targeted using a range of factors, including local prevalence rates, whether a testing history is already available, and the percentage of high-risk students in each institution.

Covid-19 Update

Lord Lansley Excerpts

Tuesday 3rd November 2020 Lords Chamber

[Baroness Evans of Bowes Park (Con)]

Both the pots of money the noble Baroness mentions are under the control of local authorities, and it is entirely up to them to decide which sectors or types of business to support in their area. It is within their gift to provide support, if they have businesses in those sectors, as the money is for them to provide to local businesses, which they know best.

[Lord Lansley (Con) [V]]

My Lords, does my noble friend agree that we must now plan for several months of constraining transmission of the virus before a vaccine is widely available? Such a plan must mean very limited social contact if we are to keep schools and businesses open and the economy moving, so does she also agree that it will not help to talk of a return to normal any time soon?

Business and Planning Bill

Lord Lansley Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 20th July 2020 Lords Chamber

[Lord Lansley (Con)]

My Lords, it is a privilege to follow the noble Baroness, Lady Northover, and her three co-signatories to Amendment 15. As she rightly said, it is only by virtue of their bringing forward the amendment in Committee that we had the benefit of a very good and persuasive debate last Monday. They won the argument, as evidenced by the Government’s Amendments 13 and 14 and what they said about the guidance that will be issued alongside the no- smoking condition. I pay tribute to the noble Baroness, Lady Northover, for that.

I might say to the noble Baroness, Lady Wilcox of Newport, that the Labour Party did not put down such an amendment. I welcome what she said about maintaining positive forward pressure on this vital public health issue, but I remind her that as a result of the coalition Government’s activities—in which we were all participants, including my noble friend Lord Howe—this country was regarded as having the toughest tobacco control regime in the world, perhaps bar Australia, although I think there was a debate about that. The point is to maintain that pressure. The Government’s commitment, which I wholeheartedly support, is to secure a smoke-free England by 2030. The point of this temporary legislation is to support the hospitality and leisure industries, and our debate was about ensuring no retrograde steps away from our objective of banning smoking in public places. We do not want families who expect to go to a public house and have a smoke-free meal to find that they are exposed to second-hand smoke.

Like my noble friend Lord Young of Cookham, I would have liked the Government to have gone a bit further and the guidance to have been more specific—particularly on the points he mentioned, which for brevity’s sake I shall not repeat—but I share his view that the Government’s Amendments 13 and 14 are significant victory. He and his cosignatories to Amendment 15 can take credit for that. I welcome what the Government have done, I hope the House will support Amendments 13 and 14 and that, in consequence, the noble Baroness will not see the need to press Amendment 15.

[Lord Clement-Jones (LD)]

My Lords, I shall speak briefly in support of Amendment 15, which was so cogently moved by my noble friend and spoken to so persuasively by her co-signatories. In Committee, the Minister, the noble Lord, Lord Greenhalgh, said:

“The Government recognise the vital importance of health and safety concerns but we do not believe that imposing a condition to prohibit outdoor smoking would be proportionate.”


He also said:

“The case is now incontrovertible that there are dangers from second-hand and passive smoking.”—[Official Report, 13/7/20; col. 1482.]


I acknowledge that the Government have come part way to meet the amendment, but I hope that, even now, they will change their mind.

I want to address the Minister’s proportionality point, especially in the light of his second statement and this Government’s plans for a smoke-free England by 2030. A new survey conducted between 15 April and 20 June 2020 for ASH and UCL has found that more than 1 million people in the UK have stopped smoking since the Covid-19 pandemic hit the country. A further 440,000 smokers tried to quit during that period. Younger smokers have quit at a much greater rate than older ones: around 400,000 people aged 16 to 29 have quit, compared to 240,000 aged over 50. The rate of quitting for 16 to 29 year-olds is more than twice the rate for those over 50. This is quite unprecedented and hugely encouraging for the health of our nation. Given what the Minister has said about the dangers of passive smoking—and given that smoking-related illnesses linked to worse outcomes from Covid-19 include chronic obstructive pulmonary disease, diabetes, stroke and other heart conditions—is it not proportionate to want to build on the success during lockdown by restricting smoking in public areas in this way, especially as it applies only to these newly permitted outdoor spaces, as my noble friend pointed out?

As fewer people are smoking after lockdown, is it not right to do everything to attract non-smokers back to the outdoor spaces of our hard-pressed pubs, bars and restaurants by providing a smoke-free environment? We are not yet seeing customers return in great numbers—that much is clear from restaurant owners quoted over the weekend. Would this assurance not be of huge benefit in luring them back?

The Government’s amendments are welcome so far as they go, but they are very much half a loaf. I remember only too well that Forest was the principal opponent obstructing my tobacco advertising and sponsorship Bill, and I am sorry that it has been given any credence by this Government.

Amendment 11, in the name of the noble Baroness, Lady Wilcox, is also disappointing. It is very disappointing that Labour is not supporting this cross-party amendment, especially when the noble Baroness, Lady Wilcox, quotes the research from UCL and ASH, and the latter is supporting Amendment 15.

I am not going to rub salt in the wound by reminding her why I had to introduce the Tobacco Advertising and Promotion Bill in the first place in 2001. I hope, therefore, that the Government will go the whole way and ensure that the adoption of Amendment 15 will be an important staging post towards a smoke-free Britain.

--- Later in debate ---

[Lord Lansley]

My Lords, I will speak to Amendment 61 in my name. Indeed, in this group, there are nine amendments, Amendments 61, 62, 64, 68 to 70, 72, 76 and 77, which, in relation to Clauses 17, 18 and 19, all have the effect of moving the extension of planning permissions and listed building consent from three months to four months. I will not, at this late hour, repeat what I said at Second Reading and in rather more detail in Committee. All I want to say is that I very much appreciate that my noble friend the Minister took very seriously what I said in Committee.

We have had some extremely productive conversations on a practical level about what the construction industry’s difficulties might be with the delays in the pipeline. In pursuance of those conversations, I tabled these amendments in the hope that the Minister will tell the House that he is able to accept them. Were he to do so in response to the debate, when the time comes, I will formally move those amendments in my name.

[Lord Campbell of Pittenweem (LD) [V]]

My Lords, I propose to speak only to Amendment 56, tabled by my noble friend Lady Pinnock and to which I have added my name. It is approximately seven hours since this stage of proceedings began. Throughout, I have been reminded endlessly of two lines of a poem by Robert Frost:

“But I have promises to keep,

And miles to go before I sleep.”

However, noble Lords should not be apprehensive, because I hope only to make some comments in addition to those of my noble friend, to underline what I believe is the very strong case for this amendment.

At Second Reading and again in Committee, I raised the question of the impact on amenity of extending construction hours. I hope the noble Lord, Lord Greenhalgh, will forgive me if I say that I have been a little disappointed in the responses, both from him and his noble friend the Minister who has dealt with other parts of the Bill. It is worth reminding ourselves that an extension could go on until 1 April 2021, could be seven days a week and could extend to a whole day. It does not take much to realise that there is considerable potential for impact on the amenity of households, churches, hotels, hospitals and care homes.

It is helpful to ask why planning authorities imposed conditions for working hours. As my noble friend has already indicated, the purpose is to provide a balance, and part of that balance is the protection of amenity. In every instance, an authority will have been required to reach a judgment about how that balance should be constructed. It seems to me that it follows logically that any increase in hours will tilt that balance against amenity and in favour of the applicant.

The difficulty with what we are considering is that we do not know to what extent that may occur on any one of the occasions in which an extension is sought. That is why I believe it is a matter of necessity to require applicants to produce an impact study to the planning authority, together with plans for mitigation. I believe it can reasonably be argued that that is in the interests of both the planning authority and the applicant. First of all, the planning authority is working against a very tight timetable, and, so far as the applicant is concerned, it is obviously in their interest that as much information as possible can be provided to the planning authority. I believe therefore that an impact study is a necessity.

Indeed, I go further than that: the decision of the planning authority is an administrative one, and any administrative decision of this kind could be subject to judicial review. It would be much easier to resist any such application for judicial review if it could be demonstrated that the applicant had produced the impact assessment to which I have referred and that the planning authority had taken it into its considerations.

--- Later in debate ---

Moved by

[Lord Lansley]

61: Clause 17, page 27, line 23, leave out “April” and insert “May”
Member’s explanatory statement
This amendment will extend the time limit for planning permissions to which subsection (1) applies to 1 May 2021 instead of 1 April 2021.

--- Later in debate ---

Moved by

[Lord Lansley]

64: Clause 17, page 30, line 41, leave out “April” and insert “May”
Member’s explanatory statement
This amendment provides for subsections (1) to (5) to expire at the end of 1 May 2021, rather than 1 April 2021.

--- Later in debate ---

Moved by

[Lord Lansley]

68: Clause 18, page 31, line 41, leave out “April” and insert “May”
Member’s explanatory statement
This amendment provides that a relevant outline planning permission with a reserved matter application time limit as specified under subsection (1) is deemed to have that time limit extended to 1 May instead of 1 April 2021.

--- Later in debate ---

Moved by

[Lord Lansley]

72: Clause 18, page 35, line 32, leave out “April” and insert “May”
Member’s explanatory statement
This amendment provides for subsections (1) to (5) to expire at the end of 1 May 2021 instead of 1 April 2021.

--- Later in debate ---

Moved by

[Lord Lansley]

76: Clause 19, page 36, line 32, leave out “April” and insert “May”
Member’s explanatory statement
This amendment provides for listed building consents to which subsection (1) applies to have their time limit extended to 1 May 2021 instead of 1 April 2021.

Business and Planning Bill

Lord Lansley Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 6th July 2020 Lords Chamber

[Lord Lansley (Con)]

My Lords, I draw attention to my interests in the register as chair of the Cambridgeshire Development Forum. I welcome this Bill; I also welcome my noble friend Lord Greenhalgh to his first legislative responsibilities—I hope he enjoys them.

I will talk about the element of Part 3 relating to planning—not the very welcome ability to extend construction working hours; I think local authorities had the ability to do this, but the legislation will equip and encourage them to do so on a much more uniform basis for the benefit of the industry, to keep it moving. I will talk principally about Clauses 17 and 18. If you imagine development as a pipeline of activity, the industry has lost time in it; that time was not intended to be lost under the Government’s guidance, but in practice most businesses and developers were off-site by late March and back on-site only in late June. Clauses 17 and 18 are essentially constructed around the proposition that three months were lost and that, therefore, three months must be added to the pipeline, hence the end of the December has been replaced by 1 April.

Although there is a balance to be struck between keeping development moving and allowing for the delays experienced by the industry, I think three months is insufficient for two reasons. First, when the industry has got back to work, it has not been at 100% capacity. To start off with, it was at 50%; some housebuilders had supply-chain problems; even on Friday, a number with which I checked were operating, at best, at 80% capacity. Additional time will be lost between now and the end of the year. Secondly, the three months lost were April, May and June. The three months added are January, February and March. It is obvious that these are not the best months in which to undertake and commence activity on-site in the building industry. I will come back to this in Committee, but will the Government recognise at this stage that more than three months of additional time must be inserted into the Bill?

Also, why do we have such a wide-ranging requirement for “additional environmental approval”? As things stand, all planning permissions which have expired between 23 March and probably the end of August will require additional environmental approval from local authorities to be extended or revived. That is too much. The industry will feel that it has been promised an extension that turns out to be no more than the ability to apply through a new process with its local authority. More should be done. I will question that in Committee.

Finally, on Clause 20, I share my noble friend Lord Young of Cookham’s desire to reinvigorate the process of enacting the reforms in the Rosewell review and getting the Planning Inspectorate’s time for appeals down. It had come down to about 22 weeks; we need to get it down to that and below. We also have to look hard at what these delays are leading to for local plans. There are many reasons for the delays to local plans—it is not just the Covid-19 crisis—but having so many is not good enough in a plan-led system. It is progressively making development more and more difficult.

Covid-19 Update

Lord Lansley Excerpts

Thursday 25th June 2020 Lords Chamber

[Baroness Evans of Bowes Park]

I assure the noble Baroness that they are at the forefront of our mind. Attention is being given to them and further work is ongoing. One thing that I have not mentioned so far is that from 1 August shielding will be paused. Therefore, people who have had the most intense experience during the lockdown will be able to start having social contact again, which we know is incredibly important, and I am sure that they are looking forward to that. From 6 July, those shielding will be able to spend time outdoors in a group of up to six people, including people from outside their household. Of course, support will also continue from the fantastic NHS volunteers, who have done so much to provide some contact for particularly vulnerable people who might not have relatives or family with whom they have been able to have contact.

[Lord Lansley (Con) [V]]

My Lords, I draw attention to my interests as entered in the register. This is a health crisis and, for millions of people in this country, visiting a gym or going to a swimming pool is an essential part of their health regime. Can my noble friend now reiterate the Culture Secretary’s aspiration that gyms and leisure facilities will be reopened by mid-July?

[Baroness Evans of Bowes Park]

I am happy to reiterate that, subject to public health advice, it is indeed our aspiration to reopen gyms and leisure facilities by mid-July.

Covid-19: Strategy

Lord Lansley Excerpts

Tuesday 12th May 2020 Lords Chamber

[Baroness Evans of Bowes Park]

If people have symptoms, they should of course self-isolate, along with their household. As we have said all along, it is extremely important that people look after themselves, follow the advice and self-isolate if they think they have any symptoms. We are moving forward from the lockdown in an extremely cautious manner, and it is absolutely imperative that everybody puts their health, and the health of everyone around them, first.

[Lord Lansley (Con)]

My Lords, there is limited evidence about the extent of transmission of the virus between children and between children and adults. Returning to the issue of schools, I wonder whether my noble friend will ask the Government to publish their evidence on transmission of the virus between children. The Government must also look to France, which today is allowing the youngest children back into schools, in a way similar to that proposed for this country from the beginning of June. The Government should perhaps try to acquire data that would give reassurance, not least to teachers, about the safety of young people returning to school.

[Baroness Evans of Bowes Park]

We will certainly look at international evidence. As countries come out of their lockdowns at different rates and through different measures, we will of course all learn from that. I assure my noble friend that the Government Office for Science is working to regularly publish the evidence, documents and studies that have formed the basis of SAGE’s discussions and advice to Ministers. We expect that to include the data raised by my noble friend on the reopening of schools.