Digital Markets, Competition and Consumers Bill

Debate between Lord Lansley and Lord Kamall

Committee stage
Wednesday 24th January 2024 Grand Committee

[Lord Lansley (Con)]

My Lords, in my short contribution I will look at what Clause 29 adds and whether it is necessary. I suppose I am saying that I want to speak to whether Clause 29 should stand part. We might have to come back to that.

My starting point was Clause 19(10):

“Before imposing a conduct requirement … on a designated undertaking, the CMA must have regard in particular to the benefits for consumers”.


Unless I am missing something, that will include disbenefits, so the countervailing benefits form part of that consideration. I do not understand why it would not be the best drafting, or the best Explanatory Note, to say, “Under Clause 19, when the CMA is considering imposing a conduct requirement, it must have regard to any countervailing benefits of not imposing such a conduct requirement”.

That is the starting point but let us say, for the purpose of the argument, that Clause 29 is not really about the imposition of a conduct requirement in the first place but about what should happen when there is a conduct investigation. But there are more stages for the designated undertaking. When the CMA wants to impose a conduct requirement, it has to give a notice under Clause 21 and say what the benefits are. The undertaking can come along and say, “Well, we have countervailing benefits if you don’t do this”, so it is entirely open at that stage to raise the countervailing benefits clause. I do not know why it is called an exemption. It is not an exemption. There should not be an exemption from the regime; there should just be a balance: how is the consumer benefit to be maximised? Once that notice has been served, it is subject to a public consultation under Clause 24, and the undertaking can come along under Clause 24.

Let us say that all that has happened, and there is a potential breach of the conduct requirement, and the CMA initiates an investigation under Clause 26. When the CMA does that, it has to give the opportunity to make representations within a defined period. Even if the countervailing benefits have not been taken into account in the original activity, when a breach is considered the notice is issued and the undertaking can come along and say, “Well, actually, the consumer benefits are being delivered by this means, and it is necessary and indispensable”, or whatever word you use. We could include it, if necessary, in the guidance.

I do not think that we are quite finished, even then. Clause 27 requires that in the

“undertaking to which a conduct investigation relates … the CMA must consider any representations that the undertaking makes”.

We could have put it in there, because it has a right to make representations at that point.

After all these things, which get us to the point where it has been considered in the first place, considered in whether a notice of a breach should be issued, and considered in the notice for the conduct investigation, and been given the opportunity to make representations, why do we need another clause that says that there is this thing that is called a countervailing benefits exemption as distinct from, at each previous stage—and there are many of them—the benefits or disbenefits and potential consumer benefits from different requirements that are to be considered? Frankly, I do not see it—unless it is, as my noble friend said, that there is a “get out of jail free” card that can be played. If it can be played, it will be played, so I do not think that we should allow it to be played.

[Lord Kamall (Con)]

My Lords, I will speak to Amendments 36, 38, 39, 40 and 41. I have been trying to understand the reason for the current government position. One issue that I have thought about, and which I have written about in the past, is the notion of unintended consequences. Often a well-intended government intervention can make things worse. Many of you will remember the example of the Government of the 1990s introducing the dash to diesel, as it was supposed to be better for the environment—and, in response, we found that actually it made things worse. That is not to criticise the Government of the day, as it was well-intentioned, and many people supported the reduction of greenhouse gases.

One thing that I have thought about with regard to better law-making is how we ensure that there are safeguards in place for when there are negative unintended consequences. For that reason, I have some sympathy for considering whether the unintended consequence of a CMA decision could make things worse for consumers. However, like many noble Lords I am concerned that this is a massive loophole for large tech companies to continue to engage in anti-competitive behaviour or, as other noble Lords have said, slow down the process.

Having looked at the amendments and the Government’s position, I want to ask my noble friend the Minister a direct question. Could he explain what the Government mean by countervailing benefits and give some real examples, or hypothetical examples, of where consumers may be harmed by a pro-competitive intervention by the CMA? If that response convinces noble Lords, perhaps the Government could consider bringing forward an amendment based on Amendment 41 from the noble Lord, Lord Clement-Jones. I look forward to my noble friend the Minister’s response.

National Institute for Health and Care Excellence

Debate between Lord Lansley and Lord Kamall

Monday 23rd May 2022 Lords Chamber

[Lord Kamall (Con)]

NICE has recently concluded a comprehensive review of its methods. It wants to introduce greater flexibility in the appraisal of medicines for more severe diseases but is also reviewing the criteria for highly specialised technologies, to make them clearer and more specific. We hope this will benefit medicines for patients with rare diseases and improve equitable access to new and innovative treatment. On the exact detail, I am afraid I am going to have to write to the noble Lord.

[Lord Lansley (Con)]

My Lords, would my noble friend agree with me that the publication by NICE last month, about its work on evaluating new treatments for severe drug-resistant infection, was really valuable, in that it looked at the benefits across the health system as a whole as the basis for an assessment of what an annual subscription for such drugs might be? Can my noble friend say how the Government are taking this work—which is a world first—and working with other countries to try to ensure that, collectively, that kind of subscription can incentivise the drugs industry to bring new treatments for antimicrobial resistance to the market?

[Lord Kamall (Con)]

I thank my noble friend for the question but also for highlighting the fact that NICE is trying to change the way it works to be more flexible and responsive. The new subscription-style payment model that the NHS is developing has been designed to try to address the lack of new antimicrobials being developed and the growing threat posed by antimicrobial resistance, or AMR. The recent guidance from NICE on the two new AMRs is a world first and an important step forward. What NHS England has now got to do is enter into negotiations with the manufacturer, with a view to making them available to NHS patients.

Human Medicines (Coronavirus and Influenza) (Amendment) Regulations 2022

Debate between Lord Lansley and Lord Kamall

Monday 14th March 2022 Grand Committee

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

My Lords, we are here this afternoon to debate two important statutory instruments which will amend provisions in the Human Medicines Regulations 2012 and support our work to ensure continued access to critical vaccines and medicines across the country. The first SI will maintain vital arrangements which have underpinned our vaccination campaigns against flu and Covid-19. The second SI will support our ambitions to ensure that patients with unmet clinical needs can access the innovative treatments they need. I am grateful to be able to debate such important provisions today.

The purpose of the provisions I have laid in the Human Medicines (Coronavirus and Influenza) (Amendment) Regulations—which I will refer to as “the regulations”—is to amend the temporary provisions that cease to have effect on 1 April this year. They support the continued deployment of safe and effective Covid-19 and flu vaccinations at the pace and scale required both now and in the future as part of the pandemic response. This SI amends provisions in the Human Medicines Regulations 2012, SI 2012/1916, originally amended by the Human Medicines (Coronavirus and Influenza) (Amendment) Regulations 2020, SI 2020/1125, and the Human Medicines (Coronavirus) (Further Amendments) Regulations 2020, SI 2020/1594, either to make permanent or extend by a further two years these key regulatory flexibilities.

There are five provisions before us today, three of which we are seeking to make permanent. The first will enable injectable prescription-only medicines, which includes vaccines, to be given under a patient group direction commissioned by the NHS or a local authority, which effectively expands the workforce of vaccinators. The second will enable pharmacy-led Covid and flu vaccination services to operate outside their registered premises. This has enabled, for example, “pop-up” vaccination clinics to be run by pharmacists at convenient locations for patients, and these have been very successful. The third will add several additional groups of healthcare professionals to those who can administer vaccines under occupational health schemes, thereby expanding the workforce to vaccinate health and care staff. The final two provisions relate to a further temporary extension of easements to licensing requirements for assembly and preparation of vaccines prior to use and sharing of vaccines between sites.

Why do we need this SI? The success of the mass vaccination rollout on the scale and pace that has been possible to date will not continue if the SI is not approved, and the Covid-19 and flu vaccination programmes will not be able to continue running as they currently do. Nor would they be able to be re-established at the pace and scale which has been so vital to our success—for example, in response to the emergence of a new variant, leading to recommendations for an urgent booster campaign.

Approval has been sought and agreed both in the other place and in the Northern Ireland Assembly, and I will now provide the rationale in support of these important provisions in this place. We are debating these provisions today against a completely different backdrop to that which was in place when the key regulatory flexibilities were first made in late 2020. We are now in a position that we should welcome, but we should also be aware that vaccines remain our best line of defence against the virus and to help us to live with Covid. This is the very reason why it is vital to make permanent or temporarily extend these provisions.

The provisions have already proved invaluable by enabling mass vaccination against both Covid-19 and flu to be done as quickly as possible while safeguarding patients and limiting disruption to other NHS services. Patient safety has to be at the heart of any vaccination programme, and it is at the forefront of these provisions.

To improve uptake in areas with low vaccination uptake we have used places of worship as vaccination centres, with many more acting as pop-up venues; provided £22.5 million to fund the community vaccine champions scheme, targeting the 60 local authorities with the lowest vaccine uptake and using local networks to promote accurate health advice; established an army of vaccine ambassadors, speaking 33 languages between them, promoting uptake across the country; and taken the vaccines into the hearts of local communities through initiatives such as vaccination buses and taxis. It is vital that we continue to protect and vaccinate those in our society who are hard to reach and it is really important that we continue to reduce health inequality in vaccine uptake. Making these provisions permanent will enable us to achieve this goal. Indeed, the National Audit Office’s recent report on the rollout of the vaccination programme in England highlighted the balance between central command and control structures and wider empowerment locally. It saw this as a success factor in achieving more than 139 million vaccinations in the 15 months since the programme began.

I turn to the second instrument before us today. We are committed to making sure that individuals suffering from life-threatening or serious debilitating conditions and facing unmet clinical need are able to access the therapies they need. The early access to medicines scheme is a vital tool in supporting such patients to receive innovative new medicines. EAMS, as it is commonly referred to, provides a route for patients to be prescribed medicines that either do not yet have a marketing authorisation or licence, or do not have a marketing authorisation for the medicine to be used for that particular illness. Since 2014, the scheme has benefited hundreds of patients across the country. In England alone, over 1,600 patients have received EAMS medicines since the scheme launched. Their lives have been transformed by the chance to receive vital therapeutics for conditions ranging from cancer to sickle cell disease or severe dermatitis. Putting the scheme on a statutory footing allows us to maximise the benefits it offers to patients, as well as supporting the early development of medicines by innovative manufacturers in the UK.

The provisions we are debating today will deliver three key benefits. First, they will reaffirm in legislation the importance of patient safety within the scheme, putting specific provisions on safety monitoring and risk management on a statutory footing. Secondly, they will reduce the regulatory burden on manufacturers supplying EAMS medicines, making the scheme more visible and easier to use. Thirdly, they will help ensure that information on the real-world use of EAMS medicines can be collected. This will help provide more evidence and more data that can support future decisions about patient access to novel medicines. To summarise, we have the opportunity before us to deliver greater access to safe medicines, as well as supporting the innovation of our life sciences industry for the benefits of patients.

I am bringing forward the first instruments using the powers in the Medicines and Medical Devices Act, allowing us to use effective regulation to provide patients and the public with timely access to critical medicines and vaccines. The provisions in these instruments are incredibly important. They will be in force if mass vaccination campaigns against Covid-19 and flu are necessary again to protect the public and our freedoms. They will also ensure that patients with serious conditions and unmet clinical needs can be offered new, life-changing treatment options.

[Lord Lansley (Con)]

My Lords, I am glad to have the opportunity of contributing to this debate. If I may, I shall say something about each of the two regulations we are looking at. Before I go down that path, I should declare an interest as vice-chair of the All-Party Parliamentary Group on Vulnerable Groups to Pandemics.

The first regulation is, in a sense, the product of success: we have made a great step forward in the vaccination programme. For the very first time, I tested positive for Covid 10 or 11 days ago—I am negative now, I promise—but it was not remotely worrying and had no serious impact on my health because I had had two vaccinations and a booster. The process in this country, not least the use of pop-up locations, has been rightly envied in many countries around the world. I got my second vaccination in Poets Corner in Westminster Abbey, a particularly pleasant experience.

The point is, however, that we have now arrived at a position where we are living with Covid, which is a tricky thing to do because the numbers of cases are not small. I was just one of them last week, and not in the least bit surprised when the Office for National Statistics said that there was an increasing number of cases because so many people who I knew of were going down with a case of it. Living with Covid is going to be tricky and I suspect we will, from time to time, find ourselves having to resort to a booster programme—perhaps not for everybody, but certainly among the most vulnerable.

The point I make to the Committee today is that, as we move into this very significant new phase of living with Covid, I do not want us to leave behind—or leave out—the small proportion of people who, by reason of being severely immunocompromised, cannot live with Covid. They cannot access or tolerate the vaccines, as they cannot produce the necessary antibodies. If we do nothing about that we will end up with a very small but significant number of people, maybe somewhere between 100,000 or 150,000, for whom the severity of their lack of immune system means that they literally cannot go out and expose themselves to Covid.

I have been asking questions of my noble friend the Minister and I fear there is a bit of confusion here. The Government are in the process of promoting clinical trials for post-exposure prophylaxis as treatments so that, if somebody has the symptoms of Covid, there are antiviral treatments available for them which have significant efficacy. But the trials are all on the basis that their symptoms are detected within three to five days; if they are not, there is a serious risk of severe harm, hospitalisation or even death for this small group of people.

The case I want to put is that the Government should, as other Governments are doing, look at the emergency-use authorisation of pre-exposure prophylaxis. In this instance, it is a drug with the brand name Evusheld. This is an AstraZeneca combination of monoclonal antibodies, the purpose of which is to give protection to people who are severely immunocompromised. I hope it will be apparent to noble Lords that there is the world of difference between pre-exposure and post-exposure prophylactic treatments. The difference is that a sense of confidence is created in the people to whom the pre-exposure prophylaxis has been provided, such that they too stand some chance of living with Covid and of no longer being subject to the isolation and shielding which has otherwise been their unfortunate experience now for two years.

In the data presently available, the efficacy of Evusheld results in an 83% reduced risk of symptomatic disease over a six-month period. That is a very good potential level of efficacy. If we do not do this in the position we are in, many of these people will not feel confident about leaving isolation and not being shielded. They will not rely on the assumption that they would get access to treatments within the time required.

I am hoping that the Medicines and Healthcare products Regulatory Agency is just about to produce a positive, emergency-use authorisation assessment for Evusheld. If my noble friend has any information, that would be very welcome. While I entirely accept that the Government need to have that in place, why are they not negotiating with AstraZeneca to get access to it in a contract that depends, of course, on the availability of the authorisation?

Many countries are doing this. For example, the United States has ordered 1.7 million doses. The French have around 150,000, which is broadly comparable to us and the number we would expect to need; indeed, in France, they have administered 15,000 doses of Evusheld. I notice other countries entering into these contracts almost every day. On Friday, it was Switzerland. As we move into living with Covid, which these regulations support, can we have some confidence that we can supply Evusheld and pre-exposure prophylaxis for this very vulnerable group? That is my first point.

Health and Care Bill

Debate between Lord Lansley and Lord Kamall

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

[Lord Kamall (Con)]

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

[Lord Lansley (Con)]

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

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

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

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

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

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

Health and Care Bill

Debate between Lord Lansley and Lord Kamall

Lords Hansard - Part 1 & Report stage
Tuesday 1st March 2022 Lords Chamber

[Lord Kamall (Con)]

I thank the noble Lord for that intervention because I was just about to come to it. I should add that new Section 14Z30 very clearly requires ICBs to manage conflicts of interest at sub-committee level.

We think that the approach we have outlined will be more appropriate and possibly more effective than simply barring individuals with a conflict of interest—which, I encourage noble Lords to note, would also include NHS Providers and local authorities— from all committees with a commissioning function. First, this approach is broader than what the noble Baronesses might have intended. Secondly, many committees will have a range of functions, and commissioning may be only a small part of their activity. This approach risks creating a series of duplicated committees with similar interests to enable commissioning decisions to be taken in line with the amendment. This risks undermining one of the very purposes of this reform: to reduce bureaucracy and increase integration.

On Amendment 10A, we are clear that chief executive pay should be value for money. The pay framework is based on our ability to attract the highest-quality candidates. ICB roles, such as the chief executive, are some of the more complex in the health system. Experienced chief executives of trusts already exceed the suggested £150,000 per annum remuneration. Therefore, we do not believe it would be realistic to expect them to take a pay cut to take up a role with such a portfolio.

I remind noble Lords that putting the salary of an ICB chief executive into the Bill would be inappropriate. Such a lack of flexibility would be extremely unusual for a senior position and risks salaries declining in value over time, precisely as ICBs take on more responsibility as they become more established. This would fundamentally weaken ICBs’ ability to recruit and retain senior management. I also warn that directly tying pay to performance is likely to make it significantly harder to recruit chief executives to more challenging ICBs—precisely the organisations that we would want to recruit the very best leaders.

I hope I can reassure noble Lords that the recruitment process will ensure that only the most qualified people can take up these roles. All ICB chief executive appointees across England need to demonstrate how they meet—

[Lord Lansley (Con)]

I am sorry to interrupt my noble friend. I do not think we have debated Amendment 10A; it is not in this group.

[Lord Kamall (Con)]

I wish my noble friend had stood up the moment I mentioned Amendment 10A. I can only apologise. I have received advice to agree with what my noble friend said. I shall very quickly move on and I thank him for his vast experience of this.

Let me move on to a couple of issues raised about mental health. We expect mental health trusts to play a critical role in ICBs and ICPs. The Bill sets out a minimum requirement. It does not specify what sort of care NHS trusts or NHS foundation trusts deliver. As we said earlier in the debate, we hope that ICBs by local agreement go beyond the minimum requirements. We clearly want to see parity of esteem between mental health and physical health.

Noble Lords mentioned public health. The department and NHS Improvement publications have stated an expectation of an official role for directors of public health in ICBs and ICPs. This recognises the vital advisory and leadership roles of directors of public health in the system-wide effort across all domains of public health, which is amplified by the shift to a more preventive, collaborative and integrated systems focus on improving population health. We are working very closely with stakeholders to shape this official role in relation to ICBs.

Can I just check that we talked about Amendments 14 and 32? Yes, we did. This is a more interactive session than many noble Lords would have expected. Perhaps it will do as a sort of novelty. I believe that Amendments 14 and 32 are aligned closely with the skills mix amendment, and I hope that will go some way to satisfying concerns.

On guidance, I am able to reassure your Lordship’s House that NHS England’s regional teams are having ongoing discussions with CCGs and will deal with ICB leaders about the potential membership of the ICB board on establishment. These discussions are focused on ensuring that the board will be effective in discharging the statutory duties of the ICB. Looking beyond this, NHS England is able to issue guidance to ICBs and will engage with them—to understand what issues are emerging during the initial period of operation —and their committees and how they are working with stakeholders. In some areas, NHS England is already developing draft guidance. For example, the proposal is that each ICB will be expected to have a named lead with responsibility for commissioning for learning disability and autism.

On regulations, we think the rules as currently set out in the Bill, and with the addition of the new skills mix amendment, are sufficient and will give ICBs the space they need to develop effective systems in their area. The Bill already includes a regulation-making power that covers any provision related to ICBs’ constitutions, including ICB membership. Therefore, if we deem it necessary in future to be more specific about ICBs’ membership requirements, we retain the ability to do so through regulations. I hope I have been able to provide some assurance—sufficient assurance—to noble Lords and that they will not move their amendments when they are reached.

Integration White Paper

Debate between Lord Lansley and Lord Kamall

Thursday 10th February 2022 Lords Chamber

[Lord Kamall (Con)]

It is important to stress once again that the key to this is that we cannot overly prescribe from here in Westminster and Whitehall. We must make sure that at whatever place, whether it is rural or urban, the people and patients who are cared for in the system are being understood. One reason why we want one person to be accountable, whether in urban or rural areas, is the fact that they must take responsibility for ensuring that all these things are joined up—not only health and social care as we understand them but technology, housing and all those other issues. I know that the right reverend Prelate and my noble friend Lady McIntosh have often raised this issue. We think that the proposal is flexible enough, whether in an urban or a rural area, to make sure that one person really understands the local area of integration.

[Lord Lansley (Con)]

My Lords, paragraph 1.11 of the White Paper states:

“Our focus in this document is at place level.”


Paragraph 3.11 goes on to state:

“Success will depend on making rapid progress towards clarity of governance and clarity of scope in place-based arrangements.”


As far as I can see, the Government are proposing that by spring next year such place-based arrangements will be put in place across the country, with a single accountable person to whom my noble friend referred. There is no reference at all to place-based arrangements in the Health and Care Bill. For years, the NHS has been saying, “We are creating integrated care systems but they don’t have statutory cover, so we want legislation that reflects our way of working”. The Government are now proposing legislation that creates a way of working with no legislative cover. I am afraid that this will not work unless the Bill changes to reflect place-based arrangements and a single accountable person, and defines adequately who they are, what their powers are and how their accountability works.

[Lord Kamall (Con)]

I thank my noble friend for that helpful intervention.

Health and Care Bill

Debate between Lord Lansley and Lord Kamall

Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Lord Kamall (Con)]

I thank the noble Baroness and echo her gratitude to all the noble Lords who have turned up for this group of amendments.

Before I turn to specific amendments, it may be helpful to make a few general points about the new payment scheme and explain why this clause should stand part of the Bill. For many years, the national tariff improved access to services and drove up quality across the NHS. The new scheme will build on that success. NHS England will continue to make rules determining the price paid to a provider, by a commissioner, for healthcare services for the NHS, or for public health services commissioned on behalf of the Secretary of State. Also, expanding the powers to enable NHS England to set prices for public health services, such as maternity screening, will allow for seamless funding streams for different care episodes.

However, we need to update the NHS pricing systems to reflect the move towards a more integrated system focused on prevention, joint working and more care delivered in the community. This will support a move from a “payment by activity” approach, towards an approach that promotes integration and early intervention, while discouraging perverse incentives for patients to be treated in acute settings. It will allow flexibility over the current pricing scheme, and allow rules to set prices, formulas and factors that must be considered when determining the prices paid. I assure noble Lords that, when developing the scheme, NHS England will continue to consult any persons that it considers relevant, which will include ICBs, NHS trusts and foundation trusts, as well as trade unions and representative groups. I share the sentiments of the noble Lord, Lord Davies, about the valuable role that trade unions play in a free society.

I turn briefly to the points made by my noble friend Lord Lansley. On regional variation, the NHS payment scheme will encourage commissioners and providers within an integrated board area to work together to agree prices that are in line with the rules set out in the scheme. To date, only one provider has applied successfully for local modification, and closer working within ICBs should remove the need for disputes. On paying different providers differently, there may be scenarios where it is appropriate to pay non-NHS providers different prices from those paid to NHS providers, to take into account differences, different starting costs or a different range of services provided. There may also be cases where the financial regimes of different providers make it appropriate to set different prices or pricing rules. When setting any prices, NHS England will aim to ensure that prices paid represent a fair level of pay for the providers of those services, as well as fair pay between providers of similar services. We will not introduce competition on price rather than quality. We hope that these changes will increase the flexibility and reduce transactional bureaucracy at the ICP level.

I must disagree with the proposal in Amendment 199. While the Secretary of State will remain responsible for setting out overall funding for NHS England, NHS England, alongside Monitor, has set the rules successfully since 2013. I cannot see the benefit of this duty being transferred to the Secretary of State, beyond separating it further from those making operational decisions in the system. Following that logic, we must also reject Amendment 202A. However, I assure noble Lords that the payment scheme will be published in the usual way, and your Lordships will of course be able to table Questions, secure debates, hold us accountable and ensure that the mechanism is scrutinised.

I turn to Amendments 201B and 201C. As part of the broad consultation duties, we expect NHS England to work closely with trade unions and staff representative bodies, such as the Social Partnership Forum, NHS Providers, the Healthcare Financial Management Association and all the royal colleges, when developing the national tariff.

On Amendment 200, I assure your Lordships that the NHS payment scheme will be published by NHS England following consultation. The Secretary of State will also have the general power to require NHS England to share the NHS payment scheme before publication, not to publish a payment scheme without approval, and to share the contents of the scheme should that be necessary.

On Amendment 201A, in setting the rules for the payment scheme, NHS England will of course want commissioners to consider staff pay, pensions and terms and conditions. NHS England will continue to take account of cost growth arising from uplifts to Agenda for Change. New Section 114C makes it clear that, before publishing the payment scheme, NHS England must consult any person that it thinks appropriate. Again, in practice we expect this to include representative bodies and trade unions. NHS England must also provide an impact assessment of the proposed scheme.

I hope I can reassure noble Lords that the department and NHS England remain committed to Agenda for Change. Independent providers will remain free to develop and adopt the terms and conditions of employment, including pay, that best help them attract and keep the staff they need. However, we expect that good employers would set wage rates that reflected the skills of their staff.

On Amendment 202, it is right that the commissioners and providers of NHS services should be able to make representations and, if they feel it necessary, object to pricing mechanisms set by NHS England in the payment scheme. That is why we have retained the duties to consult commissioners and providers. We have also retained the ability for ICBs and providers to make representations and to formally object in response to consultations on the NHS payment scheme, as they can with the national tariff.

The current prescribed thresholds are set by the National Health Service (Licensing and Pricing) (Amendment) Regulations 2015, and the current objection thresholds since 2015 have been set at 66%. My department consulted on these thresholds in 2015 and it remains the Government’s view that they are proportionate, preventing the delay of future payment scheme publications and giving the NHS the certainty that it needs to plan for future financial years.

If I have not answered all the questions from my noble friend Lord Lansley and others, I ask noble Lords to remind me and I will write to them. This has been a very important discussion—as we can see by the attendance—and I hope I have given enough reassurance to noble Lords for them not to move their amendments and have explained why the clause should stand part of the Bill.

[Lord Lansley (Con)]

My Lords, I am most grateful for the Minister’s response to that short debate and for the other contributions. I shall certainly look at the Court of Appeal judgment—was it the Court of Appeal? —and try to work through precisely where the problems are. There are two ways of dealings with this issue. One is to scrap the national tariff and put in a new payment scheme. The other is to start with the national tariff and ask what the problems are and how we are going to deal with them, and I would quite like to work that through.

We may come back to this because there is an issue about how far the payment scheme is a national payment scheme and how far it becomes a local and varied one. That is a very interesting question, as is the way in which discrimination between providers may be implemented and for what purposes.

For the moment, though, I am very grateful to my noble friend for his response and for his promise to follow up on issues.

Health and Care Bill

Debate between Lord Lansley and Lord Kamall

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

[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

Debate between Lord Lansley and Lord Kamall

Lords Hansard - Part 2 & Committee stage
Monday 24th January 2022 Lords Chamber

[Lord Kamall (Con)]

We do not believe that they are, but clearly there is a difference of opinion about it.

I would like to turn, however, to the point made by my noble friend Lord Lansley on Clause 70. The regulations that we create under Clause 70 will have a broader scope than those currently created under Section 75. The provider selection regime will include public health services commissioned by local authorities, thereby recognising their role as part of joined-up health services delivered for the public. While we always want to act in the interests of people who use our services, our regime recognises the reality that in some cases integration, rather than competition, is the best way to achieve this for the health service. Finally, removing the section and creating a new bespoke regime, is—despite the scepticism of the noble Lord, Lord Warner—what the NHS has asked for. There is strong public and NHS support for scrapping Section 75 of the 2012 Act—

[Lord Lansley (Con)]

I am sorry—it is getting late—but will my noble friend at least, at some point, tell us: did Ministers ever challenge the NHS on whether what it was asking for required primary legislation? Did they ever ask, “What are you trying to achieve?”—and then let us, the Government and Parliament, who actually pass the legislation, see how it should be achieved? Or has Parliament in practice now become merely the cypher for the NHS?

[Lord Kamall (Con)]

I take the point that my noble friend makes, and I completely understand the concerns; that is why it is important that I take many of the concerns raised today back to the department.

Clause 70 inserts a new Section 12ZB into the NHS Act 2006, allowing the Secretary of State to make regulations. I have a lengthy explanation here but, frankly, I am not sure that it will pass muster. If noble Lords will allow me to go back to the department—I may be a sucker for punishment, but I accept the concerns and I will go back—

Health and Care Bill

Debate between Lord Lansley and Lord Kamall

Lords Hansard - Part 1 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[Lord Kamall (Con)]

I hear the strength of feeling from the noble Lord. I will take this back to the department and discuss it with my right honourable friend the Secretary of State. I hope noble Lords are reassured by that. I may not get the perfect answer, but I will try. I understand the strength of feeling on this issue; no one can fail to do so. Let us put it this way: it was not subtle but direct. It is really important that, as the Minister here, I take this back and reflect the feeling of the House in my conversations with the Secretary of State, and his subsequent conversations with NHS England. I will take that back and look at the consultation process and the CCGs consulting all the relevant local authorities.

I understand the point made strongly by the noble Lord, Lord Scriven, that we have to be careful about prescribing in a top-down way how to work locally. I have always been a strong believer in localism and making sure that powers go down to a local level rather than being taken away. Let me again assure the noble Lords, Lord Scriven and Lord Hunt, and other noble Lords that I will take this back, because clearly there is concern. I had not appreciated the strength of that concern. At Second Reading the noble Lords, Lord Stevens and Lord Adebowale, said, “We are already doing this. It makes sense to go ahead and put it on a statutory footing”. But I have now heard the other side of the argument, and it suggests that I should go back and have a stronger conversation with, in effect, my boss—my right honourable friend the Secretary of State. I hope that gives some reassurance.

On Amendment 44, in the name of the noble Baroness, Lady Thornton, I assure your Lordships that we intend to provide as much stability of employment as possible while ICBs develop their new roles and functions. I hope that noble Lords are aware that there is already an existing commitment that staff transferring into ICBs will transfer across on their current terms and conditions in line with the NHS Terms and Conditions of Service Handbook. NHS pension rights will also be preserved. As a result, staff transferring into ICBs will not see any change to their existing conditions.

However, the Government are concerned about forcing ICBs to adopt conditions and practices that the ICBs do not believe work best for new staff. We believe that it is important to give ICBs flexibilities relating to staff terms and conditions; they are there for a reason. For example, when it is difficult to recruit and staff are going elsewhere, this would include allowing ICBs the flexibility to diverge from collectively agreed pay scales in order to attract staff from elsewhere or with unusual or valuable skills, or to reflect local circumstances. It will also give ICBs the flexibility to support joint working and bring in staff currently working in local authorities or foundation trusts, for example, supporting integration and the joint working approach that the Bill hopes to encourage.

I also note that ICBs having the independence and flexibility to choose whether to adopt collectively agreed pay conditions and pensions for new staff is not unique, as the noble Baroness, Lady Thornton, acknowledged. NHS foundation trusts, which are already free to exercise their discretion in adopting such conditions, overwhelmingly choose to honour and apply such terms to their staff unless there are good reasons to diverge.

On the proposals for very senior managers, existing procedures are in place to ensure that the most senior staff within the NHS are appointed with fair and equitable salaries. Proposals to pay very senior staff more than £150,000 must be similar to those for other equivalent roles or be subject to ministerial oversight.

The Government are in the process of finalising the procedures that will apply for ICBs. The specifics may differ but the effect and intention will be the same: to afford ICBs agency in setting pay at competitive rates so that we can continue to attract the most senior and experienced leaders, while putting adequate checks and balances in place to ensure appropriate use of taxpayers’ money and keep senior public sector salaries at an appropriate level. The Government believe that this amendment, which also asks for ICPs to approve annual salaries in excess of £161,000, is unnecessary. I am happy to have further conversations.

I now turn to the amendments on how the ICBs will function once established, starting with that in the name of the noble Lord, Lord Davies of Brixton, which relates to the question of treatment outside the ICB area. The new clause in question provides that NHS England must publish rules for determining the people for whom integrated care boards have responsibility. Importantly, this clause ensures that everyone in England is covered by an ICB.

We intend that the rules set by NHS England should replicate the current system for CCGs as closely as possible. This means that the ICB will be responsible for everyone who is provided with NHS primary medical services in the area—for example, anyone registered with a GP. It will also be responsible for those who are usually a resident in England and live in their area if they are not provided with NHS primary medical services in the area of another ICB.

It is important to remember that no one will be denied healthcare on the basis of where they live. We want to ensure that, under the new model, bodies that arrange NHS services—decision-making bodies—are required to protect, promote and facilitate the right of patients to make choices with respect to services or treatment. This means allowing patients to choose to be treated outside their ICB area. Choice is a long-standing right in the NHS and has been working well for some time. The Bill continues to protect and promote it. However, I am afraid that we have concerns about this amendment, as it places a requirement on providers rather than commissioners. It would not be reasonable to expect providers to provide services regardless of whether they were funded by an ICB to do so, and it is important that ICBs should be able to make decisions about with whom they contract and where they prioritise their resources.

On Amendment 53, in the name of the noble Baroness, Lady Walmsley, I hope I can assure the Committee that the Government are committed to ensuring continuous improvement in the quality of services provided to the public. As your Lordships will be aware, there is already a wider range of duties in relation to the continuous improvement of services. Clause 20 imposes on ICBs a duty as to the improvement in quality of services. Furthermore, the ICB must set out how it proposes to discharge that duty at the start of each year in its joint forward plan and explain how it discharged the duty at the end of each year in its annual report. I hope this goes some way to meeting the noble Baroness’s concerns.

Clause 16, which this amendment seeks to alter, recreates for ICBs the commissioning duties and powers currently conferred on CCGs in the NHS Act 2006. It ensures that ICBs have a legal duty to commission healthcare services for their population groups. It also recreates Section 3A of the 2006 Act, which provides the commissioning body with an additional power to commission supplementary healthcare services in addition to the services they are already required to commission. This power enables ICBs to arrange for the provision of discretionary services that may be appropriate to secure improvements in the health of the people for whom it is responsible—or improvements in the prevention, diagnosis and treatment of illness in those persons—so it is important that the clause remains as it is currently drafted.

The Bill will ensure that the existing local commissioning duties conferred by the NHS Act 2006 will transfer over to ICBs. This is set out in proposed new Section 3, which is also to be inserted by Clause 16 on page 13. I hope that the noble Baroness, Lady Walmsley, will be reassured that it rightly uses “must” rather than “may” when referring to the arranging of services. I can therefore assure the Committee that ICBs will continue to commission the services previously delivered by CCGs. That will ensure that service delivery for patients is not impacted.

Amendment 159 in the name of the noble Baroness, Lady Wheeler, touches on the important relationship between ICBs and ICPs. I remember that, when we had an earlier consultation, the Bill team had a diagram about how ICBs and ICPs would work together; It might be helpful if I ask for that to be sent to noble Lords so that all of us can have more informed conversations about the intentions of the amendments and the issues that noble Lords want to raise. I will make sure that that is done.

This amendment would add a requirement for the Secretary of State to make regulations to establish a dispute resolution procedure if an ICB fails to have regard to an assessment of needs, an integrated care strategy or a joint local health and well-being strategy in respect of the ICB’s area. The Bill was introduced to ensure that existing collaboration and partnership, working across the NHS, local authorities and other partners, is built on and strengthened; I recognise the concerns raised by the noble Lord, Lord Scriven.

We intend for these assessments and strategies to be a central part of the decision-making process of ICBs and local authorities. That is why we are extending an existing duty on ICBs and local authorities to have regard to relevant local assessments and strategies. The ICB and local authorities will be directly involved in the production of these strategies and assessments through their involvement with both the ICP and health and well-being boards at place—that is, at a more geographical level. As a result, they have a clear interest in the smooth working of the ICP.

More widely, there are several mechanisms to ensure that ICBs and local authorities will have regard and not intentionally disregard the assessments and strategies being developed at place in their areas. First, health and well-being boards have the right to be consulted.

[Lord Lansley (Con)]

I just had a flashback moment. I remember being asked, or volunteering, a decade ago to produce a chart of the various organisations under the 2012 Act. I think that the King’s Fund did a rather good job of doing it back then; perhaps it might do it again, although it will find that it is more complicated this time.

The noble Baroness, Lady Thornton, asked a perfectly reasonable question that might simplify the process. If health and well-being boards do the same job as integrated care partnerships, in large measure, why cannot integrated care partnerships and health and well-being boards be the same organisation?

[Lord Kamall (Con)]

I remember hearing in an earlier discussion on the Bill that nothing prevents that where they coincide. My noble friend and I have had conversations about health and well-being boards and where they sit. Given that, and given my noble friend’s experience of this issue, perhaps we could have a further conversation on this matter before the next stage to clarify some of the issues that he rightly raised in previous conversations.

At this moment, we believe there are mechanisms to ensure that ICBs and local authorities have regard to and do not disregard the assessments of the health and well-being boards. As my noble friend points out, that is for further conversations.

As noble Lords know, NHS England must also consult each health and well-being board on how the ICB has implemented its joint health and well-being strategies, so there is another level of reassurance there. The ICB must also include in its annual report a review of the steps it has taken to implement any relevant joint local health and well-being strategy and must consult the health and well-being board when undertaking that review. NHS England has formal powers of intervention if an ICB is not complying with its duty in any regard. That is sufficient to ensure that ICBs will have regard to both ICP and health and well-being board plans, but I understand the concerns raised.

Covid-19 Update

Debate between Lord Lansley and Lord Kamall

Monday 29th November 2021 Lords Chamber

[Lord Kamall (Con)]

As the noble Baroness, Lady Watkins, will be aware, our scientific medical advice and the data are constantly reviewed. We are currently conducting thorough tests to review both LFT and PCR efficacy when it comes to the omicron variant. The advice that I have been given is that we must wait for the data and take a cautious, proportionate approach as scientists work urgently to better understand the variant. In terms of the question on more restrictions in terms of where face masks should be worn, the advice at the moment is still on public transport and in shops, and to continue to encourage people to work either from home or in offices, as appropriate.

[Lord Lansley (Con)]

My Lords, in my noble friend’s repeat of the Statement, he said that

“our strategy is to buy ourselves time and strengthen our defences”.

May I ask him about our border controls? Given our testing capacity, would it not make sense for us, for example, to test everybody who comes into our airports at the airport itself so that we have certainty that, where they are positive, we know who they are and are able to conduct the contact tracing required?

[Lord Kamall (Con)]

I thank my noble friend for giving me notice of the question; I appreciate it. The answer that I have been given in response is that we have built a thriving private diagnostic market to meet the demand of the international travellers and day 2 PCR testing for travellers is provided by these private providers. Based on forecast modelling, we are confident that the market has sufficient capacity to meet the rise in demand that omicron may pose.