Health and Social Care Bill

Lord Rea Excerpts

Monday 13th February 2012 Lords Chamber

[Lord Rea]

My Lords, I have a question for the noble Earl on this amendment. What will be the relationship of Public Health England, the national body that will take over the functions of the Health Protection Agency and other areas, to the national Commissioning Board? I wonder whether the noble Earl can guide me to the statutory framework for Public Health England, as it does not seem to be in this long Bill, although it is possible that I am just incompetent and have not spotted it. It seems to me that the chief officer—I hope that he will be a highly qualified public health specialist—who is the senior officer in Public Health England, should have a seat on the national Commissioning Board. That should perhaps not necessarily be permanent, but he should be consulted frequently by the Commissioning Board.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, I thank the noble Lord, Lord Hunt, and all noble Lords who have spoken in another excellent debate. I understand the arguments that have been put forward in favour of these amendments. It is important for me to say at the outset that the Government’s general approach is to allow the NHS Commissioning Board as much autonomy as possible in determining its own membership, structures and procedures. It is our firm view that the board is the body best placed to determine how to organise itself in the most effective and efficient way. We would not want to undermine that.

It is also worth restating that, looking across government, it is the responsibility of all departments to ensure that public appointments to arm's-length bodies are open, transparent and made on merit. However, it is not government policy for such appointments to be subject to Select Committee approval—in this case the Health Select Committee. These are ministerial appointments. The Secretary of State is ultimately accountable to Parliament for the performance of the health service as a whole, as we have made clear through amendments to the Bill. The current process under which some posts are subject to pre-appointment hearings by a House Select Committee does not represent a power of veto, which the amendment would amount to. Of course, noble Lords will be aware that we followed this process, as the noble Lord, Lord Hunt, reminded us, in the recent appointment of Professor Malcolm Grant as the chair of the NHS Commissioning Board Authority. When we discussed this last in Committee, I was pleased that the noble Lord, Lord Hunt, said that he thought that this process ensured proper and effective scrutiny of that appointment. I gently wish to hold him to that view. He raised the comparison of the Office for Budget Responsibility, saying that the NHS Commissioning Board was just as important. Importance is not the issue. The Office for Budget Responsibility has a unique role because it has dual accountability to both government and Parliament directly. The NHS Commissioning Board is accountable to government and, through Ministers, to Parliament, which is somewhat different.

I turn to Amendments 21, 21A and 22. We recognise that the Bill strikes a fine balance between giving the board as much autonomy as possible in how it operates, and providing the necessary accountability. It is important to strike that balance accurately and consistently. If we were so prescriptive in the Bill as to set out further requirements for the board's membership, we would be moving too far away from that necessary autonomy. It is right that it should be up to the board to decide whether it has a vice-chair or a senior independent director, as Amendment 21 suggests. Of course, a vice-chair or deputy chair, were they to be appointed, would have to be non-executive.

Likewise, while I agree that it will be key to the effectiveness of the board for it to involve and obtain sufficient advice and input from public health experts, and to have public health well within its purview, it would not be right to specify that it must have a public health specialist as a member, as Amendment 21A proposes. Again, I am sorry to disappoint my noble friend Lady Williams in particular, but we think that the board will be best placed to determine whether it has the right structure and range of skills, knowledge and experience appropriate to the issues that it will face. In the material that David Nicholson published he made it clear that, rather than making token appointments, he intends that clinical leadership will run right through the organisation. That is a very reassuring statement.

Amendment 22 takes the Secretary of State out of the loop of appointing the chief executive. That moves us too far away from one of the key principles that most of us have signed up to: the necessary accountability of the board to the Secretary of State. It also seems at odds with the ethos of other amendments proposed by the noble Lord, such as Amendment 19, which we debated on the first day of Report and which sought to make every other aspect of the exercise of the board's functions subject to direction from the Secretary of State.

--- Later in debate ---

[Lord Beecham]

My Lords, I will speak to the amendments in my name in this group. They are, in many ways, fairly straightforward.

Amendment 24 seeks to add a duty to promote public health as well as to protect and improve public health, as in the Bill as it stands. Promotion is a more positive term than simply protecting or improving public health. It implies a wider range of activities than simply dealing with public health issues and problems as they arise. I would have thought it added somewhat to the Government’s intentions—which we broadly commend, of course—in terms of the direction of public health and the further involvement of local government.

Amendment 25 simply amplifies the list of steps that the Secretary of State may take, in particular around research and training, to specify that he should use,

“the best scientific and other evidence available”,

with this key phrase,

“without regard to special interests”;

in other words, that they should look objectively and seek a wide range of resources to inform the making of public policy.

Amendments 26 and 28 substitute the word “must” for “may” in respect of some of the Secretary of State’s duties. Amendment 27 is perhaps one of the more important in this group, and refers to a duty on local authorities to improve the health of their populations and “to reduce health inequalities”.

In Committee, the Minister referred to the fact that the Secretary of State has that duty as part of his overall duty to provide health services, and that is certainly correct. However, there is no equivalent express duty on local authorities, nor could one be satisfactorily implied. Again, I pray in aid the views of the Health Select Committee, which pointed to:

“The lack of a statutory duty on local authorities to address health inequalities in discharging their public health functions”,

and called that,

“a serious omission in the Government’s plans”,

and recommended that the,

“Bill be amended to rectify this”.

The Government’s response referred to local authorities as “independent, democratic bodies” and said that a,

“ring-fenced public health grant”,

would be made available. At a later stage we will perhaps need to discuss the arrangements for such a grant, because there are concerns about it and about the health premium to which reference is also made in the Government’s response. The Government conclude that,

“these non-legislative levers will be at least as effective as any duty”.

Of course the Government refer to the provisions of the Equality Act, but that is not good enough. Surely it is important to have in the Bill an explicit duty on local authorities to promote health equalities and health improvement. I hope that the Minister will recognise on reflection that the Government will lose nothing by taking such a step. The Government would simply reinforce their intentions and put them in a framework that will send a clear signal to local government.

Amendment 28A, in the name of the noble Baroness, Lady Finlay, seeks to require co-operation between local government, the Secretary of State and quite a list of providers of public health. The amendment is virtually the same as Amendment 28C in my name. There are perhaps one or two slight differences but nothing of any great moment in that respect. I am perfectly happy to defer to the noble Baroness when she moves her amendment.

Amendment 29 seeks to establish the topics of public health that should be included in matters to be addressed by local authorities. The intention, again, is to put in the Bill what may or may not be implicit in the prevailing arrangements. In Committee, the Minister indicated that he did not think that it was necessary to have these references. On the contrary, it is helpful to send a signal of what is expected not only to local government but to those who look to their local authorities to take steps to promote public health on the issues. The list in Amendment 29 includes:

“sexual health … obesity … nutrition … alcohol and substance abuse … air and water quality … adequate housing standards … fuel poverty … occupational health”.

Those are all important issues, most of which also involve inequalities of health. The provision looks very clearly to local government to take those items seriously and to promote advances on each. It is not a mandatory requirement and, of course, the situation will vary from place to place. However, it is a shopping list for local government, citizens and interested organisations to use in pressing that policies and resources be directed at these important areas of public policy. As the amendment makes clear, it is not a restrictive list.

Amendment 31 deals with another issue raised by the Health Select Committee, although it is a matter that we also discussed in Committee. Among the partners of a local authority for the purposes of public health provision, it is very important to include the district councils. In two-tier areas, district councils have a wide range of responsibilities around the environment, housing, food safety and so on, which clearly are integral to the public health service.

It is obviously necessary therefore for a principal authority in a two-tier area to co-operate with a district, but also, conversely, of course, for the district to co-operate with the principal authority. The amendment specifically calls for the relevant partners to co-operate with the local authorities and for it not to be just a one-way street. Again, that raises an expectation on the appropriate local authority and the opportunity for its residents to push for action, if required.

Amendment 32 calls for the Secretary of State to publish annual reports on the public health impacts of budget changes on duties to improve public health. That is a glancing reference to the fact that there is to be a new financial framework and it is important to see how that impinges on what local authorities actually do, and that of course includes district councils. Again, I should emphasise that the position of district councils is yet another matter on which the Health Select Committee was very clear in its recommendations:

“We are concerned that too little attention is paid in the Government’s plans to the role of lower-tier authorities”.

The Government are relaxed, shall we say, about doing anything very specific about that, although apparently they will be issuing draft guidance. It might be thought that that is not really adequate in all the circumstances and that explicit reference should be made to the requirement to involve district councils.

As I said in Committee and I repeat today, the Opposition are keen to support the Government’s approach to returning many public health responsibilities to local government, but it has to be done in a way that encompasses the broad range of issues that affect individuals and communities, and empowers and indeed requires local government that they should take action to meet their part in discharging those responsibilities. Accordingly, I beg to move.

[Lord Rea]

My Lords, I do not know if it is a slight slip on the part of those who drafted the Bill that the word “promotion” is not already in the clause. The coalition agreement on public health states:

“The Government believe that we need action to promote public health, and encourage behaviour change to help people live healthier lives … harnesses innovative techniques to help people take responsibility for their own health”.

That is a bit unfair on people because lifestyles are very much dependent on life chances. People who come from a rotten background may indulge in practices which are not particularly good for their health, but you cannot really ask them to change. We need to take into account a lot of the things which my noble friend Lord Beecham has just gone through because they are relevant to the practice of public health. The word “promotion” should definitely be included at the beginning of this clause.

[Baroness Northover]

My Lords, in Committee noble Lords made a number of helpful and constructive comments on public health. We have carefully considered this feedback, and as noble Lords will see in later clauses, we have made some significant changes to the public health provisions. Amendments 24 and 28 both relate to the Secretary of State’s accountability and his role in the promotion and improvement of health. The Secretary of State is under a duty to protect the health of the public in England. We are clear that the primary legal responsibility for health improvement should lie with local government, although the Secretary of State will have the power to act on health improvement when appropriate. We welcomed what the noble Lord, Lord Beecham, said in Committee about a renewed involvement of local government in public health, and he has reiterated that today. It is extremely important that local government, which is often best placed to take this forward, sees its prime legal responsibility and that there is no duplication of duties. Therefore, in drafting Clauses 10 and 11, we have taken care to avoid duplicating duties and to keep roles and responsibilities clear. We do not believe that additional amendments to the Bill are needed and I hope that noble Lords will understand why we have drafted these provisions in this way.

Amendment 26 takes the list of steps that the Secretary of State may take as part of his health protection duty and turns it into a set of fixed duties. I hope that I can reassure noble Lords that the Secretary of State cannot simply ignore the steps even though we have used the word “may” and not “must”. He must give proper consideration to what steps are appropriate to protect or improve health. Although the duty does not necessarily require the Secretary of State to take all the steps listed under new Section 2A, if after proper analysis he considers that a particular step is appropriate, he must take it. However, we take the view that the Secretary of State needs the flexibility to decide what steps are appropriate. The Bill outlines the areas in which the Secretary of State might take action. It fleshes out the ways in which the Secretary of State must take steps to protect the public. To prescribe these exemplars in statute runs the risk of inflexibility. One duty in the list, for example, is to make available the services of any person or any facilities. What would that mean if it was made a “must”?