Health and Social Care Bill

Lord Warner Excerpts

Wednesday 9th November 2011 Lords Chamber

Moved by

[Lord Warner]

37: Clause 4, page 3, line 9, leave out “manner that it considers most appropriate” and insert “interests of the health service”

[Lord Warner]

My Lords, in the absence of the noble Lord, Lord Patel, I should like to speak to Amendment 37 as my name has been added to it.

Before getting down to the precise wording of the amendment, I want to give some context to my remarks by talking about what I regard as the total incoherence of Clause 4. I note from the letter of 7 November from the noble Earl, Lord Howe, to my noble friend Lady Thornton that the Government now seem to want to treat Clause 4 in the same way as Clause 1. I have to say that that is hardly a ringing endorsement of the drafting of Clause 4. I wonder, privately, how many other clauses we will have this problem with as we progress through the Bill. In effect, the Government are seeking to take these clauses out of the normal consideration of a Bill in Committee. We are getting into rather strange territory where, as we wander through the Bill, we find that, when the Government find themselves under pressure with regard to bits of the Bill, they sweep those bits aside to have another go in some procedure, which is less than clear to the House, and promise to come back later. Before I go any further on the amendment, as I am already unclear as to how the Government are going to handle Clause 1—and, it now seems, Clause 4—procedurally, I would welcome any light that the Minister can shed on how we are going to deal with these clauses and have a proper discussion of them in Committee.

I turn now to Amendment 37. I am completely supportive of reducing or even stopping ministerial and Department of Health micromanagement of the NHS.

[Lord Mawhinney]

I am extremely grateful to the noble Lord. Is he aware that the concern which he has just expressed is held by other noble Lords as well?

[Lord Warner]

I am grateful to the noble Lord for that intervention. The more the merrier, I say, on this theme and I hope that noble Lords will speak out about this issue in our debate today.

As I was saying, I am completely supportive of reducing or stopping ministerial and Department of Health micromanagement of the NHS, which, as I understand it, is the Government’s purpose in framing Clause 4. However, I struggle with reconciling the clause in its present form with the other duties and powers that the Secretary of State has taken unto himself in the Bill. I do not mean just the relationship between Clauses 1 and 4, which itself seems to have produced a hefty dose of confusion and uncertainty, not to mention, in the case of Clause 1, many attempts at drafting alternatives. How will Clause 4, for example, fit with Clause 3, which most of us in the previous session in Committee—except, perhaps the Minister—seemed to favour strengthening in terms of the duty on inequalities? How will it fit with Clauses 16 and 17, with their very extensive regulation-making powers for the Secretary of State, or indeed Clause 18 or Clause 20, which gives the Secretary of State extensive mandating powers, which seem to me to be rather stronger than the new chairman of the NHS Commissioning Board seems to think?

Many people who have looked at the Bill do not understand what the Secretary of State is trying to do in relation to the issue of central control, central powers and autonomy and delegation. Is he trying to let go or to tighten his grip? I do not see, at present, how the Government can retain in the Bill a clause as loosely drafted as Clause 4 and, at the same time, retain all the other powers of the Secretary of State that we will be discussing later. Apart from anything else, this is a recipe for confusion in the minds of many local decision-makers.

Are people to take Clause 4 as drafted at face value? If they do, will they not be wondering whether the Secretary of State or his henchmen and henchwomen in the Department of Health or the NHS Commissioning Board will come down on them like a ton of bricks using other powers in the Bill if they think that they are not acting in the interests of the NHS? What will the courts make of all this? If people do not like a decision taken higher up the line, as the Royal Brompton and Harefield NHS Foundation Trust is demonstrating now over paediatric surgery changes, do they seek judicial review of the central decisions, praying in aid Clause 4 as drafted? Will not Clause 4 in its present form simply encourage legal challenge and create local uncertainty?

I turn to the wording of the clause and why Amendment 37 is at least an improvement. It is an attempt to improve what is a highly defective clause. As I read Clause 4, it seems to place little inhibition on local decision-makers,

“exercising functions … or providing services”,

in any manner that they consider appropriate. If that means what it says in the dictionary, if people want, for example, to provide a wide range of alternative therapies for which there is no scientific evidence of clinical benefit, they can do so, praying in aid the powers under Clause 4. If they want to remove tattoos or do a bit of cosmetic surgery, I cannot see that there is very much to stop them. Under the clause as drafted, the Secretary of State can intervene only after the event. If he finds out what has been going on, he can, in effect, try to stop it happening again, but that is ex post facto. He cannot intervene earlier, as I understand the drafting of the clause. I am happy to be corrected by the noble Earl, but I am not the only one who thinks that these powers will have that effect.

Amendment 37 is an attempt to require those behaving autonomously locally to apply the test that their actions are in the interests of the NHS before they take their decisions rather than relying on the Secretary of State deciding that they were not in the interests of the NHS after the event. I see that my colleague, the noble Lord, Lord Patel, is now with us. I suspect that we both agree that it is a far from perfect solution, but it is better than the way that the clause is currently drafted. I know that some noble Lords are very attached to the clause—like me, they are attached to the idea of autonomy—but I hope that they will consider whether in its present form it is really in the best interests of the NHS. I suggest that the Government rethink the form of Clause 4 if they want to proceed with it. As I see it, what would get nearer to their intentions but not create some of the loopholes that I have identified is a kind of drafting that gives a commitment that the Secretary of State would not exceed the powers provided elsewhere in the Bill, would impose only burdens that are totally consistent with those powers and would maximise operational freedoms for those delivering NHS services consistent with public accountability. That seems to me to be the direction in which the Government are trying to go, but the way the clause is drafted does not do that.

I would prefer the Minister to accept that the clause is seriously deficient and either abandon it altogether or take it away for a serious makeover. In the mean time, on behalf of the noble Lord, Lord Patel, and myself, I move Amendment 37, which goes a modest way to improve the shape and drafting of the clause. I beg to move.

[Lord Patel]

My Lords, first, I offer my sincere apologies to the House for being delayed. I was also thrown by the fact that that the first two amendments were not moved. I am sorry about that. I am grateful to my friend, the noble Lord, Lord Warner, for moving the amendment in my absence, and I join absolutely in his comments. I shall try to cover some other points. My name is also on the amendment tabled by the noble Baroness, Lady Williams, and I support that too.

As I interpret it, under the clause, as long as the Secretary of State does not think that it is inconsistent with the interests of the NHS, he or she must act positively to allow any other person exercising health service functions to do so in a way that that person thinks appropriate. Although the Secretary of State keeps some form of oversight, it is the views of other persons and bodies delivering health services on how those services are to be delivered that are important.

This duty would therefore require the Secretary of State, when considering whether to place requirements on the NHS, to make a judgment. The challenge for the Secretary of State would be to justify why these requirements were necessary. Does this mean that the Secretary of State has the power to act only when the steps to be taken are really needed or essential, rather than because he or she thinks that something is desirable or appropriate? He or she would have to demonstrate why no other course of action will be followed. Is that a high test to meet on the part of the Secretary of State?

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[Baroness Cumberlege]

My Lords, I very strongly support the spirit of Clause 4, and I oppose the amendment that the clause should no longer stand part of the Bill. I accept that it could be amended and could be clearer, but I want to hold to its spirit.

In the past I have put down six amendments to two major health Bills in an attempt to achieve something similar to what is in Clause 4. I have to say that my attempts, although I was supported by the King’s Fund, were puny compared with the weight of this mighty Bill. I hoped that my time had almost come. I say almost, because I know that the Minister, in his letter dated 7 November to the noble Baroness, Lady Thornton, which the noble Lord, Lord Warner, mentioned, is suggesting a strategy. I understand that the noble Lord, Lord Warner, does not like this strategy. In contrast, I do. One of the real hallmarks of this House is that we try to negotiate and accommodate what we, as a whole in this House, feel is appropriate.

In revising and amending the Bill, I appreciate that an enormous amount of time and care—

[Lord Warner]

I am not opposed to having a strategy, if I may say so to the noble Baroness, and I thank her for giving way. However, when a Bill reaches this House with a major clause in it, it has been through the other place and has been subject to a lot of scrutiny by Professor Field and his group, the Future Forum, it is reasonable to assume that the drafting does not have the kind of loopholes that this clause has. I am not the only one raising this; other people are raising the same issue. There is a lot of concern outside. We are not opposed to having a strategy, but it is reasonable to expect the Government to have got the Bill into a better shape than it was in before it came here.

[Baroness Cumberlege]

My Lords, I thought that that was the whole purpose of Committee stage. This stage is intended to question some of these concerns and to see whether a resolution can be achieved.

[Lord Warner]

The noble Earl is taking this clause out of the Committee stage, so far as I understand his proposal. If the strategy is to take clauses out when the going gets rough, that does not seem to be in keeping with the spirit and behaviour of this House.

[Earl Howe]

My Lords, I have no desire to take this clause out of the Committee proceedings. These proceedings are continuing. We have heard the noble Lord and his views, and I look forward to hearing other noble Lords. I am not in the least desirous of inhibiting debate on this clause, which I think is very valuable. However, perhaps noble Lords will consider that, in view of the undertaking that I gave on 2 November, there is a certain amount that need not be said today because I have undertaken to look at this clause on a cross-party basis and with an open mind. It is a clause that the Government were and are satisfied with and they believe that it can stand as worded without amendment. However, I appear to be accused of being too concessionary on this. It is a case of the Government being damned if we do one thing and damned if we do the opposite.

I felt that my offer to the Committee was helpful. I think that there is concern around the Chamber about this matter and I can only repeat my offer to look at that concern and, if we can reach an agreement, to put beyond doubt the fact that these clauses do what I believe many noble Lords wish them to do. I hope that in that spirit the noble Lord, Lord Warner, will agree that, while we can debate the clause today for as long as we wish, the offer is there on the table from the Government to engage in cross-party discussions with a view to reaching consensus.

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[Lord Mawhinney]

Moving on, I remind my noble friend of the times we sat with a cup of coffee and a private secretary or two—just to make her feel better—and we wrestled over some fairly difficult and complex issues. Either she or I would say, “We need a bit more information about that”, the civil servant would say, “Yes, Minister”, and in due course, when diaries permitted, we would sit down again with a bit more information. That can be said to be good ministerial governance—or it could be said to be politically motivated delay when others in the health service knew better, and if only we had got out of the way they would have done what they wanted, but they would do what those in power at the time happened to want, ignoring the contrary views of those who did not happen to hold the management positions at that moment.

I want my noble friend to accept that I still hold her in as high regard as I did before this debate started, but we part company fairly fundamentally on the issue of the accountability on a spend of £128 billion a year. As I said in an earlier debate—I have expressed this privately to the Minister, and my noble friend had the grace to say that he understood—my difficulty is that if you are spending £128 billion of public money, the public whose money are spending are simply not going to say when big problems arise, “Well, that’s okay, we’ll listen to him or her because he or she is chairman of a quango”—even a quango as highly thought of as my noble friend no doubt hopes the national Commissioning Board will be.

There is no debate in this House about the fact that the Secretary of State must be held accountable by Parliament. My noble friend Lord Marks of Henley-on-Thames made the point, which has to be right, that the Secretary of State must also be held accountable by the courts. However, the Secretary of State also needs to be held accountable by the public and the patients, who have not had a huge showing in our debates thus far. I have concerns about this clause because I am not at all clear how the Secretary of State is going to satisfy X billion people by putting in £128 billion that he is accountable to them for if they are absolutely determined that they want him to be accountable to them.

To help the Minister when he takes this clause away and thinks about it, I say to the noble Lord, Lord Warner, that I was not convinced by the amendment. I am happy that he has made that part of his contribution to the review that my noble friend will conduct, but I hope that he does not press it to a vote because I for one would not be able to support it.

There are parts of the clause that the Minister really needs to look at, such as the phrasing in new Section 1C(a):

“any … person exercising functions … or providing services … is free to exercise those functions or provide those services in the manner that it considers most appropriate”.

From that, I am not clear—I do not necessarily want the Minister to tell me this today, but I ask him to think about this—at what point these actions start to become health service policy in their own right. We quote precedent in here. If someone takes an action because they think it is right in the circumstances, does that become a policy or a guideline? Where does the Secretary of State play any role in developing a policy for the NHS?

New Section 1C(b) goes on to say,

“unnecessary burdens are not imposed”.

I have to say to my noble friend that I do not understand what that means. Who decides whether it is a burden? Who decides whether the burden is unnecessary, and where can you challenge the decision whether a burden is a burden and when it becomes unnecessary? It is okay if you consider your action to be the most appropriate in the circumstances. My party occasionally gets criticised for being inclined to being a bit too individualistic, but you cannot run a health service in which everybody can make the decision that they think is most appropriate in the circumstances without a well defined political framework within which they would be expected to act.

I will tell my noble friend something that I have said to him in private but do not mind sharing in public. I spent 26 years at the other end of the Corridor. In all that time I never once voted against my party. Some in this House will see that as wimpish and craven, and some will see it as a fine expression of loyalty. Frankly, I do not mind how you see it. It is how I see it that is important to me.

I have not done a Committee stage of a Bill since I left the Cabinet in 1997, so I want Members of your Lordships’ House to understand that I am not having much fun in these Committee sittings. This is not something that comes naturally to me, and I have tried to reassure my noble friend that my participation in these debates is because of my commitment to the health service and my desire that it should be as excellent as possible. This is for the sake of my former constituents, who are patients. In that spirit, I hope my noble friend will take away Clauses 1 and 4 and think about them again.

[Lord Warner]

My Lords, I compliment the noble Lord on his speech and say that we hope to see him every day of this Committee.

[Baroness Murphy]

My Lords, could I try to cheer up the Committee? We are getting very gloomy about this topic. To me, this is one of the most important clauses in the Bill and we must support it. I hope that we can reassure colleagues on the opposition Benches that there is no intention, as far as I can see, to withdraw any accountability, which we have discussed at great length. Nor is there any intention to interfere with the ability of the Secretary of State to intervene when necessary. It is clearly written in the Bill that the Secretary of State has a mandate and a multi-year setting of objectives, but he has to stay clear of interfering until something is really at crisis point, is going wrong or is urgent. There is plenty of opportunity for him to interfere.

I want to intervene because we have gone into the stratosphere with ideological and constitutional issues. We have certainly talked about political interference, and I agree wholeheartedly with the noble Baroness, Lady Cumberlege, about this. As a senior manager, I have a little list of Ministers around this Chamber who I can tell noble Lords did or did not interfere. I am delighted to say that the noble Baroness, Lady Cumberlege, was one of the least interfering of Ministers. Others around this Committee must wait for my judgment elsewhere.

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[Earl Howe]

I am grateful to the noble Baroness. As she has indicated, there is certainly a read-across from Clause 4 into Clause 20, and I readily accept the suggestion that we should factor in issues that emerge from Clause 10.

I am clear that a successful process will be one that can take account of views from all political parties and the Cross Benches. As well as hearing in full from those Peers, many of whom have put their names to amendments and have become particular experts on this issue, there is also an implicit legal perspective to this and I believe that an important building block will be to engage with the Constitution Committee of your Lordships’ House and other legal experts in this House on these points. To start that dialogue, I propose to meet next week with a number of noble Lords, if they are willing, to explore the process for going forward. Following that, I will write again to all Peers setting out the proposed process in more detail. I hope that that is helpful.

I have very clear answers for the noble Lords, Lord Patel and Lord Warner, and other noble Lords to the concerns that they have raised. However, for the reasons that I have set out, if they will bear with me, I shall refrain now from providing a detailed commentary on the amendments in this group. I hope that, with the prospect of future discussions that will factor in the valuable points in this debate, the noble Lord will feel able, for the time being, to withdraw his amendment.

[Lord Warner]

My Lords, there is a film showing in local cinemas called “We Need to Talk About Kevin”; I think that this excellent debate has shown that we do indeed need to talk about Clause 4. I do not intend to comment on all the excellent contributions that have been made. I just want to say two things in conclusion.

I think that the noble Lord, Lord Marks, has provided an excellent forensic analysis of what is wrong with this clause. My personal view is that he has holed this clause below the water-line. I hope that the Minister, in conducting these cross-party discussions, will really keep in the front of his mind the easy solution that the noble Lord, Lord Marks, has helpfully given to the Committee, which is that we simply drop the clause.

Secondly, I would say to the noble Baroness, Lady Cumberlege, that I do not disagree with her about many of the issues that she raised. However, if she is really concerned about reducing political interference in decisions on service reconfiguration, I would direct her towards Amendment 304 in the names of myself, the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy. There is room for another name on that amendment, which will indeed actually reduce political interference in this area. So I commend it to her. In the mean time, I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

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So, developments are happening. I seek support in principle from the Minister for the amendments, which are intended to put flesh on the bone. Clause 5—strengthened, I hope, by Amendment 39, which was moved by the noble Lord, Lord Willis—is actually all right so far as it goes, but it is crucial in my opinion that there should be more detail. I would also like an assurance from the Minister that when the National Institute for Health Research is absorbed into the National Commissioning Board, as it will be, its funding, based upon the Culyer and Cooksey reports of long ago, will be preserved and indeed ring-fenced. I support the amendments most warmly.

[Lord Warner]

My Lords, I shall speak to Amendments 40 and 42 in my name and those of other noble Lords. I also support Amendments 39, 40A, 41, 74, 89E and 199ZA in the names of other noble Lords and to many of which I have added my own name.

The noble Lord, Lord Willis, did us a great service in setting out the argument for strengthening these provisions regarding the Secretary of State’s duties on research. There is a bit of a conundrum, as he put it very well, about how a Secretary of State and indeed the NHS protects research and development in a devolved NHS. That is a difficult issue, and it is not good enough simply to have a general duty on the Secretary of State. As the noble Lord, Lord Walton, says, we need more flesh on the bone that gives some comfort to the idea that the Secretary of State, whoever he or she is, will actually take an interest and pursue some other aspects around the duty of promoting R&D. It is difficult to see how that duty could be protected without some degree of capability to intervene and ensure that the NHS pulls its weight in co-operating with R&D.

I turn to Amendments 40 and 42 in my name. I speak from the background of having been for two years the Minister responsible for NHS R&D when we started the reforms of the structure of R&D in the Department of Health and the NHS to produce much more focus to the R&D programme, to streamline some of its approval processes and to improve the translation of research to clinical care—the so-called movement from the lab to the bedside.

I, too, pay tribute to the work done by Dame Sally Davies—she was just plain Sally Davies in those days—and the leadership and persistence that she has shown in this area. The ideas that we were putting forward then for a National Institute of Health Research, which to some extent was based on the NIH model in the US, were not uniformly welcomed, if I may put it that way, by everyone across the NHS. It was deemed to be a bit too interventionist in some of the activities that were going on in the name of research and development in some of the dusty corners of the NHS. We have come a long way in that period. That is the background from which I speak, because I am keen to ensure that we do not go backwards in this area as we devolve more autonomy to the NHS.

It is relevant that I was also a member of this House’s Science and Technology Committee, where I had the privilege of working on the inquiry into genomic medicine under the extremely skilful chairmanship of the noble Lord, Lord Patel. That experience has convinced me that we need to feature R&D much more prominently in the Bill, particularly the issue of translating R&D findings into clinical practice that benefits NHS patients. That is what Amendment 40 attempts to do.

However, Amendment 40 goes further in two other aspects of successful development of research findings and their application in clinical practice: the back-up of information technology and the informatics skills, which are often inadequate to back up basic scientific discoveries. One of the things that the—in my view much maligned—national programme for IT did was to make it easier for researchers to access the very important patient database that the NHS provides for them, and it makes it easier for them to collect the kind of patient samples, if I may put it as crudely as that, that they need for their research. However, the genomic medicine report also showed that we have some serious problems in this country about informatics skills in carrying forward R&D in the health and life sciences area. That is why those parts of the back-up services get a special mention in Amendment 40.

I turn to Amendment 42. The noble Lord, Lord Willis, put his finger on it: if the NIHR disappears into the maw of the National Commissioning Board, how will its budget be protected? Will there not be a temptation, if times are hard, to dip into that pot and use it for operational matters such as the delivery of services? As a Minister and a civil servant who has worked in this field for many years, I can say that there is a great temptation when the going gets rough financially to—I shall put this as kindly as I can—reach into the pot of R&D, and indeed the pot of education and training, which we will be coming to later. I have watched people, who shall remain nameless, find themselves unable to resist that temptation. That is why I feel strongly that we should put something in the Bill along the lines of Amendment 42 to try to ensure good conduct.

Sometimes R&D is a bit slow in spending its budget. That is quite convenient if you are running into a bit of financial difficulty during the financial year. What happens is that money gets held back because of some pressing need and it will not really matter if we take a bit longer to get on with this bit of R&D. I assure the House that I have observed a Chancellor who managed to announce the same NHS R&D budget increase in two successive Budgets, and he was not spotted by anyone in the media. It is possible for some of this “peas under the pot” manoeuvring to take place. We are talking about political temptation, and Amendment 42 would provide some encouragement to resist it. The temptation to dip into R&D budgets is of course not confined to the NHS, but we have an opportunity with the Bill to ensure better behaviour in the NHS regarding R&D.

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We are benefiting many people who need the practical skills to do surgery. Therefore, in answer to Amendment 42, which addresses funding, it is essential that the ring-fencing suggested by the noble Lord, Lord Willis, in the context of the NIHR is absolutely essential. We have a situation that I am sure the noble Lord, Lord Warner, remembers well—in fact he referred to it. In 2006, when I was president of the college, I remember quite a few of my pronouncements in the newspapers about my absolute horror that the training programme for junior doctors was being raided by the Department of Health. I am not sure if the noble Lord was there at the time.

[Lord Warner]

I think that I got out in time.

[Lord Ribeiro]

I rather suspected that the noble Lord did. That is why I felt able to make that reference. None the less, I launched a big campaign at the time because here was a budget—part of the NPEC budget—for nurses, doctors and so on that was being raided. It should have been a ring-fenced budget for training, yet the money was taken out of that budget to meet the NHS deficit. There is a real danger for the present Government if a situation should occur whereby the £1 billion budget—and there is no reason why it should be more than that—that has been set aside for research, particularly as the Secretary of State has taken responsibility to promote research, was found to come under the auspices of the chief executive of the NHS Commissioning Board, and that at times of trouble and trial that that money could be used.

I wanted to speak in line with what I said yesterday, although some noble Lords may doubt that I have spoken briefly. However, I speak in strong support of Amendments 40 and 42.

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[Lord Hunt of Kings Heath]

Yes my Lords, but so was the overriding duty of Ofgem to the customer. The problem is how a regulator defines that responsibility. Since the Government are intent on this very foolish drive into competition, I believe that the risk is that the regulator will also be driven into thinking that that is its most important aim.

There are some real questions here, which I put to the noble Earl, about ensuring that there is sufficient concern, investment and leadership on the question of research. I would also ask the noble Earl how we protect and ring-fence the research budget. I ask him to think of the national Commissioning Board, faced with a hard winter, huge public concern and political pressure about funding, and the temptation to dip into the research budget. We all know that that happens. My noble friend Lord Warner and I were debating earlier who was responsible when there was real pressure on the training commissions. I thought it was my noble friend, actually, but we can continue to debate that.

[Lord Warner]

My Lords, things went downhill when I left at the end of December 2006.

[Lord Hunt of Kings Heath]

My Lords, with the greatest respect, I will not go into who left me the junior hospital doctors issue. He will recall that my first day as a Minister was actually the first day of Committee on the glorious Mental Health Bill, and that was a blessed memory, I must say.

My experience was that the health service let us down on training commissions, because at the time they were facing a financial difficulty and it was all too easy to cut those commissions. The result was that Ministers essentially took it upon themselves to put central controls back into the system. My concern is that if the NCB simply has research in its budgetary responsibility and there are severe pressures, it is just too easy to dip into it. The problem is also, as my noble friend Lord Warner said, that, as we know, sometimes research budgets take a little time to kick in, but once you do it you are funding for three, five, seven years. Again, in each financial year, an amount is probably available in the winter that had not been spent. The problem is that you will never get that resource back again.

The second point that I would like to put to the noble Earl is about clinical commissioning groups. How do we ensure that their commissioning decisions support research? My noble friend Lord Turnberg said that research is no cottage industry, but clinical commissioning groups are the epitome of a cottage industry. He also referred to the fact that GPs have little history of undertaking research and commitment to it. Yet we are handing them billions and billions of pounds, quite remarkably, on the basis of no evidence whatever that I can see that they are fitted to discharge that responsibility. I ask the noble Earl where we can have assurance that clinical commissioning groups will be prepared to invest in services where there is a strong research base.

The third challenge is to NHS trusts and NHS foundation trusts. The noble Lord, Lord Ribeiro, put his hand on it when he talked about the reduction in the number of clinical academic posts. I believe that NHS trusts have a great role to play in encouraging their clinicians and in encouraging joint posts with universities. Again, I worry that the focus on job plans and the productivity of clinicians will discourage research because the emphasis will be on patient throughput. How are we going to ensure that that does not happen?

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[Earl Howe]

I hope that I am not putting my neck on the block, but within a month the noble Lord should hear news that may cheer him on this front.

A great many noble Lords have asked me questions, some of which I have covered, but I suggest that in the interests of time it might be helpful if I followed up this debate in writing and in a way that will enable me to answer the questions in greater detail than I would now in any event.

[Lord Warner]

My Lords, in doing that will the Minister clarify what “health service” means? As I read the Bill, it sometimes looks as though public health is not included in that definition. It would be helpful if the Minister could give us some clarity on that and point us in the direction of an authoritative definition.

[Earl Howe]

I should be very glad to do so. The noble Lord may not be surprised to hear that, when I was being briefed for this Bill, I had to ask myself that very same question. The definition is there, but I think that it would be helpful if I set out the import of that phrase in its fullest sense.

I hope that I have said enough to encourage noble Lords not to press their amendments, but, in doing so, I reiterate my thanks to all noble Lords who have made such an excellent contribution to this debate.

[Lord Willis of Knaresborough]

My Lords, I thank the Minister for, as ever, a very courteous and thoughtful response to many of the issues which have been raised, in particular his response to Amendment 39 and his undertaking to reconsider “have regard to the need to”, which appears to be a little bit of clumsy draftsmanship that would be unworthy of the Minister himself.

The Minister raised a number of important issues, including that to which the noble Lord, Lord Warner, referred. We have now had a definition of “health service” which includes public health. That means that public health research could lie within some local authorities, because a significant amount of public health will be devolved to local authorities. While I was pleased to hear the Minister say today that those people moving from the National Health Service to local authorities for public health matters would retain National Health Service terms and conditions, the reality is that they will be working under a local authority aegis and that research would therefore be an issue for local authorities rather than Public Health England—or so I understand, but we will probe that later.

On protecting funding, I was particularly grateful for the way in which my noble friend the Minister responded to the idea of ring-fencing. He spoke not of ring-fencing, but said that there had been an increase in budget. It would have been good if he could have made that comment. However, he did say that NIHR would remain a stand-alone organisation. That was news to me; I thought that it was going to move into other organisations. Quite frankly, that is good news. It has a reputation which demonstrates that research is very important and we can track how it is used and when. I thank the Minister for that.

I apologise profusely to the noble Baroness, Lady Emerton, for indicating that “research” meant the work that is coming out of universities and being translated for use at the bedside. She was quite right to remind us that “research” for the purposes of this Bill was all research, and that what should underpin all public policy, in the NHS or anywhere else, is research which gives you evidence to inform policy decisions. I thank her for that rebuke.

[Lord Warner]

I do not want to prolong this debate. I will read very carefully what the Minister said about protection of finance. We may want to come back to this issue to be reassured that all is well.