Health and Social Care Bill

Lord Mawhinney Excerpts

Monday 5th December 2011 Lords Chamber

[Lord Mawhinney]

My Lords, last Wednesday we spent some considerable time talking about the merits of clustering. I start by making it clear that Amendment 256A, which is in my name and that of my noble friend Lord Newton of Braintree, is not about the merits of clustering. It does not reopen the debate that we had last Wednesday. It is about the instigation and management of clusters.

I make one further preliminary point: I have learnt from my 30-plus years in this building that Governments are always happier when they are talking about issues in the abstract. When they are confronted by issues in the specific, life gets more difficult. I see former Ministers smiling and nodding in agreement. I wish to talk about the specific. I want to talk about Cambridgeshire and, in particular, Peterborough. If that seems strange, I am Lord Mawhinney of Peterborough and I have the signal honour, as a former Member of Parliament, of being a freeman of the city. I think that my commitment to the area is well established.

I start with the words that my noble friend Lord Howe used in summing up last Wednesday. He said:

“My noble friend Lord Newton spoke about the clustering of PCTs. Clusters bring together PCTs to prepare for and support the transition to clinical commissioning. Until PCT abolition in April 2013, they continue to exercise their functions and remain statutorily responsible for their functions until abolition”.—[Official Report, 30/11/11; col. 302.]

Although clusters do not appear in the Bill at all, it seems to me perfectly legitimate to speak about them and table amendments on them given what my noble friend has said. The House officials tell me that an amendment at this stage is the only legitimate way to introduce a debate about clusters. PCTs are statutory, no debate; clusters are not, no debate, yet in practice PCTs have been removed, abolished, taken down, or whatever phraseology noble Lords wish to use, to be replaced by clustering. This is made easier by the fact that non-executive directors of PCTs are not employees.

When I learnt that the Peterborough PCT was to be abolished—as it was put to me—I took the advice of my noble friend Lord Howe and went to that bit of the statutory system which determines what happens in Peterborough, and I had an hour-and-a-half coffee break with Sir Neil McKay, the chief executive of the East of England SHA. I very much appreciate the information that he gave me although I could have done without the patronising tone. I put to him that it would be helpful if he could explain to me how the SHA had allowed the PCT to run up debts of £20 million. He said that he had no idea about that, he was not much minded to find out and nobody would take any responsibility. I asked Sir Neil whether he could explain to me how the hospital—it is a PFI hospital—had debts in too many tens of millions of pounds, over half of which were structural to the PFI. He said that they were not very enthusiastic about the PFI but they did not do anything to stop it. I inquired why the SHA, through the PCT, was trying to reduce funding to the hospital given its dire circumstances, but he declined to answer. I asked him why, as of a few weeks ago, the PCT had no contract with the hospital for this financial year and why it had no contract with the local authority, because Peterborough has integrated primary care and social services, but he had no answer. Indeed, he made some accusations in my hearing about officials at the city council which I have kept to myself because to have aired them would have made a bad situation even worse.

I therefore hope that my noble friend will understand that when we are encouraged to talk to the administrative and technocratic arm of the NHS, I for one am underwhelmed. None of this comes as a surprise to my noble friend because he very generously—I say that with deep sincerity—gave me and my noble friend Lord Newton of Braintree an hour of his time to discuss these very issues. I put to him again the fact that the Peterborough PCT and the Cambridge PCT have disappeared and there is a cluster. The facade is that the PCTs are still the legal entities and they exist. I will not comment about Cambridge, but I will comment about Peterborough. The chairman and all the non-executives have gone because they received letters asking, “Would you like to apply to be on the cluster? By the way, there are six of you but only three slots, so three of you will go—one of the two chairmen, and three from Cambridge. If you would like to apply, here is an application form. Please complete it and send it in together with a letter of resignation from the PCT”. I do not know how that went down in other parts of the country but I can tell my noble friend that it did not go down well in Peterborough.

We have a situation where a cluster allegedly makes decisions but does not have any legal authority to do so. In Peterborough’s case, the cluster refers such decisions to a PCT that statutorily exists but in practice does not. I have to say to my noble friend that I took careful note of his chastisement last week of our mutual and noble friend Lord Newton of Braintree for using extravagant language. I have pulled back, because I was going to tell your Lordships what I thought about this arrangement but I am unwilling to be chastised for extravagant language.

What has happened is that public servants who worked for primary care trusts were intimidated and bullied into getting out of the way so that a system which does not have a legal basis could proceed. In case noble Lords think that I am exaggerating, perhaps I may read to them a Parliamentary Question that I tabled a little time ago. I asked,

“whether a strategic health authority director has any legal powers to prevent a serving primary care trust board member who refuses a request to resign from the primary care trust from being offered any further public appointments during the next two years; and, if so,”

what those powers are. My noble friend replied:

“Strategic health authority (SHA) directors have no powers to prevent a serving primary care trust (PCT) non-executive director from being offered any further public appointments during the next two years. However, the Secretary of State has powers under the PCT (Membership, Procedure and Administrative Arrangements) Regulations 2000, which he has delegated to the Appointments Commission, to remove a non-executive from a PCT if the commission is of the opinion that the non-executive's continued appointment”—

notwithstanding their contract—

“is: not conducive to the good management of a PCT; or not in the interests of the health service. If the commission decides to exercise these powers then the non-executive concerned would be disqualified for appointment to a non-executive role in a PCT … or any National Health Service trust … for a period of two years or such period as may be specified by the commission when terminating the appointment”.—[Official Report, 27/10/11; cols. WA 185-86.]

It is no wonder that good upstanding community people feel intimidated and bullied into giving up the service that they have been making, because they are being threatened with two years’ exclusion by the NHS, acting on behalf of the Secretary of State.

Last Friday, to my surprise, I opened a letter that had been sent earlier in the week, which stated:

“In conversation with Earl Howe I understand you have raised some concerns in Peterborough with regard to the management of clustering PCTs”.

The sender would have known that not only from his conversations with my noble friend but from my conversation with his East of England chief executive.

“I would welcome the opportunity to arrange a meeting with you to discuss your concerns”,

signed Sir David Nicholson.

I have been in public service for more than 30 years and the only people I have ever refused to talk to have been the IRA, who were killing people; otherwise, I will talk to anybody. I will write back to Sir David telling him that I saw the letter only on Friday and that I am happy to meet him, although I am not sure exactly what will be achieved. However, I have been to the Minister and am now being offered the opportunity to talk to the chief technocrat. There are other democracies where the democratic practitioners are so weak that technocrats have to come in to do the job, but this is not one of those countries. I see my noble friend laughing but I say very gently that this ought not to be one of those countries.

This issue goes to the heart of the concerns that a number of us have relayed on a few occasions. I apologise to the Committee for taking so long but I needed to set the scene because this is the only debate that there has been on the setting up and management of clusters. I very much hope that my noble friend will take away these thoughts and continue to give them further consideration. In front of all the Members of this Committee I pay tribute to him by saying that when earlier he said to me and to my noble friend that he would give these matters consideration, I believed him. This is but an encouragement to him to take the issues at hand seriously and to produce a better and more defensible system, and one that is less liable to judicial review than the one that we have at the moment.

So far as concerns the rest of this group, I hope that the opposition Front Bench will not press to a Division their opposition to clauses, because I think that there is still a lot to be resolved in this area before we start casting votes. They know my views on Clause 31. I fear that Clause 30 may be heading in a similar direction. However, now is not the time to divide the Committee; now is the time for the Committee to encourage the Minister to take seriously the concerns being expressed.

--- Later in debate ---

We do not believe that, in effect, increasing the geographic scope of PCT board members by asking them to discharge their responsibilities on more than one board raises greater risks than may have existed with PCTs that were already very large. Some, as my noble friend knows, were already very large—all of Norfolk and all of Suffolk, for example. I hope that that explains at least the rationale for clusters and gives my noble friends some reassurance about the legal basis on which the clusters have been formed.

[Lord Mawhinney]

My noble friend knows that three months ago in the Peterborough PCT there was a non-executive chairman and six non-executive directors. To the best of my knowledge, they have all gone. What now constitutes the Peterborough PCT and how does it make decisions when a cluster refers something to it for legal validation?

[Earl Howe]

The clustering is a clustering of the boards. In other words, there is one board serving two or three PCTs, depending on the area of the country. The staff of the PCTs remain in place. There is capacity there to carry out the functions of PCTs. That is why PCTs remain statutorily accountable and they are in a position to perform the functions that the law places on them. We have streamlined the direction from board level. That is a practical and efficient thing to do and I do not think that it poses the kinds of risk that my noble friends were suggesting that it would.

I am very happy to meet both my noble friends again. I would say to my noble friend Lord Mawhinney that I was smiling when he spoke only because I know that Sir David Nicholson would be amused to be referred to as the chief technocrat. I would simply say that the NHS chief executive, while no substitute for me, I quite agree, may nevertheless prove helpful. That is certainly the object of his offer to meet my noble friend.