European Union (Withdrawal) Bill

Debate between Lord Warner and Baroness Jolly

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Warner]

My Lords, I shall bring the Committee back to terra firma with this amendment, which is tabled in my name and that of the noble Baroness, Lady Jolly, and the noble Lords, Lord Hunt of Kings Heath and Lord Patel. This amendment inserts a new clause on public health and requires that:

“In carrying out their duties and functions arising by virtue of this Act, a Minister of the Crown or a public authority must have regard to the principle that a high level of human health protection must be ensured in the definition and implementation of all policies and activities”.


The language of the amendment draws on Article 168 of the Lisbon treaty and has the advantage of existing legal precedent and interpretive guidance on which to draw when determining its meaning. It does not preserve our law in EU aspic because it would be for UK courts to decide the specifics in future individual cases. In doing so, they would be able to draw on pre-Brexit legal precedents. Putting the amendment in the Bill would give a clear signal to EU members that the UK remains committed to maintaining our public health agenda to the high standards we have established together.

Disease is no respecter of international borders, and public health is best protected when the international community operates to established and well-understood high standards. The amendment goes much further than the power placed on the Secretary of State for Health under the 2006 National Health Service Act, as amended by the 2012 Health and Social Care Act. It places the duty to “do no harm” on the whole of government, including devolved Governments and a wide range of public authorities. In other words, it reminds a wide range of interests that they must continue to protect and do no harm to public health. This seems particularly apposite in the year that our hard-pressed NHS reaches its 70th birthday and its hard-pressed staff face a future of continuing rising demand without the funding to meet it.

The Secretary of State and the noble Lord, Lord O’Shaughnessy, have given various assurances about the Government’s commitment to the UK playing a leading role in promoting and ensuring public health in the EU and around the world. Jeremy Hunt has outlined his commitment to,

“maintain participation in European cooperation on … disease prevention”,

and,

“public health”.

I do not doubt the good faith of those assurances—or of any more that the Minister gives us today—but they rather miss the point. The citizen does not need ministerial assurances but an effective legislative provision to challenge in court the Government, devolved Administrations and public bodies when they fall down on the job of protecting public health.

Although I am not a lawyer, let me try to explain why a legal protection formulated in this way is important when UK courts come to adjudicate on specific cases before them. Here I draw on helpful advice provided by Professor Tamara Hervey, a professor of EU law at Sheffield University. There have been a number of cases in which the high level of protection under EU law for human health in all EU policies and activities has been an important part of the outcome. These include the failed challenges by the tobacco industry to the Standardised Packaging of Tobacco Products Regulations 2015. Here, the high-level protection provisions were used to interpret EU tobacco products law as well as the powers to implement it. It was also used to determine the proportionality standard according to which freedom to trade versus public health is balanced. In particular, much restriction on free trade is legitimate for the purposes of protecting public health, so it helps strike a balance in these contested areas. Perhaps I might quote a passage in the High Court judgment:

“Articles 168 TFEU (on public health) and 169 TFEU (on consumer protection) are especially important. They emphasise how the protection of public health is to be placed at the epicentre of policy making and also how the setting of EU policy is to take account of the work of international organisations (which obviously includes the WHO) and how ‘all’ EU policies must ensure a ‘high level of human health protection’”.


The amendment is not the vague wording that government Ministers have tried to claim in meetings with public health interests. It specifies a very clear consideration that the courts can take into account when considering specific cases. By placing the wording in the Bill, the UK courts would be under no misapprehension about what Parliament expects them to continue doing after Brexit. I hope the Minister will have the good sense not to read out anything in his brief about the wording being vague. It establishes an important legal principle that is not currently provided for in UK legislation but is provided for in EU legal principles.

I am spoilt for choice in terms of future cases where concerned citizens might well ask the courts to intervene because of the action—or, more likely, inaction—of the Government, a devolved Administration or a public authority. As a Londoner, I cite air pollution. In the first five days of 2017, London exceeded the total annual limit for air pollution. Outdoor air pollution is estimated to cause 40,000 deaths in the UK each year. The High Court has slammed the Government for failing to produce an adequate plan to tackle air pollution. To do so, the Government will need the co-operation of the EU after Brexit. The amendment will help keep the Government focused on tackling this killer more effectively. There are other areas, such as unhealthy foods and minimum pricing of alcohol, where this amendment helps, but I do not want to steal the thunder of other colleagues who will probably speak on them regarding the amendment.

In conclusion, I will say a few rather unkind words about why ministerial assurances about good intentions simply will not do. The Government’s track record on public health has been inadequate, as was brought out in this House’s Select Committee report on NHS sustainability. A credible draft obesity plan was put by the Department of Health to No. 10 and emerged with two-thirds removed. It is a totally inadequate response to a crisis. Public health budgets nationally and locally have been cut, despite government protestations to the contrary. On top of all this, the Government’s incoherent and untransparent approach to Brexit, which we have discussed endlessly under the Bill, makes it impossible to give much credence to the assurances of individual Ministers, however well meant they may personally be.

The recent letter to the Times by many public health experts makes it clear that the profession, in the public interest, strongly supports the amendment. That is borne out by the excellent briefing provided by the Faculty of Public Health to me and to many other Members of this House. Here, I say a big thank you to the faculty and to its staff. The extent of support for the amendment is brought out well in the piece in today’s Times. I hope the Minister will have the good sense to accept the spirit of the amendment, but the DExEU approach so far to the Bill does not encourage me to think that he will. I beg to move.

[Baroness Jolly (LD)]

I will speak briefly in support of Amendment 227BD, which is in the name of the noble Lord, Lord Warner, and others, including myself. I add my thanks to the Faculty of Public Health for its support with this amendment. We are all approaching a major crossroads in our political life. Much may well change. Since we joined the EU there has been a huge improvement in our public health. I think that the general public would expect that this rate of change should not be jeopardised.

Some members of the Committee might think that this amendment should be part of a health and social care Bill, but many in this Committee will remember the 2011 Health and Social Care Bill and certainly not wish to revisit it. The EU Withdrawal Bill is where our constitutional stability and certainty will be secured within the UK legal system, so this is where the amendment should sit. Thus, in the current circumstances, this is the appropriate Bill. The British constitution does not exist, as do others, with a single set of principles. If it did, this amendment would be part of it. But it should be enshrined in this Bill, which will be part of the patchwork which forms our constitution.

Care Bill [HL]

Debate between Lord Warner and Baroness Jolly

Monday 29th July 2013 Lords Chamber

[Lord Warner]

I move this formally, on behalf of the noble Lord, Lord Patel, as I have already spoken to it.

[Baroness Jolly]

I support the two amendments in the names of the noble Lords, Lord Warner and Lord Patel, and the noble Baroness, Lady Greengross. The House is probably getting quite tired of hearing about the Joint Scrutiny Committee, but this is another area where we completely agreed, and our unanimous report recommended pretty much the contents of these amendments to the Government. Sadly, the Government indicated their willingness to fund end-of-life care, but have not put the amendments in the Bill. So it was a sort of “but not now and not yet” response. The response that came back from the Government to the report was:

“We note the Joint Committee’s endorsement of our position that free social care at end of life has ‘merit’ and note that they strongly endorse the case for its introduction at the earliest opportunity”.

That is the Government responding to the report, but nothing is reflected in the Bill before us.

Both the present system and the new system that we are debating for access to care are really longwinded, and a lot of people in this position, at end of life, do not need a longwinded system of access. The DS 1500 certificate, which indicates that you have a terminal illness, can take weeks to complete. We all know that NHS care is easier to access. However, it does not link up with social care in most cases. A terminally ill patient can get NHS care but it is really difficult to get social care. Bring on integration, really. This is not fair for somebody who needs and wants a dignified death—wherever it should be. As the noble Lord, Lord Warner, has said, most people want to die at home. Often, the inability to cope at home without any support and social care drives people to hospital. Therefore, they find themselves ending up in expensive hospital care in a setting that is just not their choice. The noble Lord, Lord Warner, has quoted some figures so I will quote a few more that support his case. The Nuffield Trust has researched this and a 10% reduction of hospital admissions for people at the end of life could result in savings of £52 million. According to Marie Curie figures, this would easily cover the costs of free care at home for all the people who would die within a year—with some to spare. This also leads into the debate of the noble Lord, Lord Warner, about moving funding from health to care. We are talking about £52 million that would be spent by people dying in hospital. We would save that £52 million if we were able to keep them where they wanted to be. The £32 million assessment by Marie Curie is more than easily covered.

We all die. Most of us will have care needs. Most of us would want to die at home. Funding adult social care at the end of life would go an awful long way to achieve this. I am therefore more than happy to support these two amendments.

Care Bill [HL]

Debate between Lord Warner and Baroness Jolly

Wednesday 12th June 2013 Lords Chamber

[Lord Warner]

My Lords, I shall speak to Amendment 77 standing in my name. I have taken a slight different approach from that of my noble friend, but I was out of the traps a little before him. I was trying to do something slightly different, but I am equally happy with his rather more elegant amendment on the duty of candour. Whether I have got the wording of the amendment right is another matter, but I was trying to link the organisational responsibility for a duty of candour to the registration process. Therefore, that right at the outset, as a condition of registration, the organisation had to sign up to the idea of a duty of candour.

When one is in the patient’s position, the duty of candour in relation to the employee becomes very important. The patient sees individual people, not necessarily something called an organisation. On the other hand, for the reasons that the noble Baroness, Lady Finlay, mentioned, one has to provide cover for individuals who operate in that organisation, both to protect them from unreasonable attacks by the victim of the mistakes, but also from attacks by the employer for blowing the whistle on them. In this amendment, I am striving for an obligation on the employer—the provider of the services—to have a duty of candour as part of their registration conditions. At the same time, the employee should be protected against unfair employment practices or unfair criticism. One is then forced along a path—which is not fully explained in my amendment—where the contract of employment between the individual and the employer gives some protection to the employee who blows the whistle.

That is quite complicated stuff and this is a complicated area, but we have to strive not just for organisational candour, but for some protected way for the employee to level with people when things have gone wrong. I think the secret lies somewhere in the contract of employment. We do not want that routed only through doctors. In a care home, for example, it will not be the doctors talking to the residents, their families or whoever. We need to do more work on this. Given that this was such a high-profile issue in the Francis report I, like my noble friend Lord Hunt, find it surprising that we are not trying to deal with it in the Bill, complicated though it is. We need to put some wet towels around our heads to try to find a way of capturing this in the Bill, so it is both fair to the employer and to the employee. That is what I am trying to do. Whether I have succeeded in my simpler version in Amendment 77 I am not sure, but that is the thinking behind it.

[Baroness Jolly]

My Lords, I welcome the debate on the duty of candour. It almost seems as though we are rewinding to 18 months ago, when we had similar debates during the passage of the Health and Social Care Bill. Although I would not have wished the events at Mid Staffordshire Hospital on anybody, I am really pleased that as a result the Francis report recommended a duty of candour. I therefore welcome the Government’s intention to implement that duty. However, as we have seen over the past 20 minutes, nothing is as straightforward as it first seems, so a lot of hot-towel work needs to be done to get this right.

I shall not detain the Committee long, but there are two sets of choices that the Government have made and I am curious why they made them. The first is whether the duty of candour is on the individual or on the organisation. The second, to which the noble Lord, Lord Warner, has just referred, is whether it is going to be in the Bill or in secondary legislation.

The duty of candour will cause a large change in people’s behaviour and it should be a game changer in lots of ways. As an aside, I think that complaints will fall. If somebody turns around and says, “I’m sorry”, people are less likely to complain. Certainly, those of us who have been involved in complaints will know that on many occasions patients just want someone to say that they are sorry and to explain why and how it went wrong, because they do not want it to go wrong in the same way for anybody else. So there might be an unintended consequence there.

When the Minister sums up, I would like to know why the decision was made not to put the duty in the Bill. Is that decision irrevocable?

NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012

Debate between Lord Warner and Baroness Jolly

Tuesday 5th February 2013 Lords Chamber

[Lord Warner]

My Lords, I support the points made by my two noble friends in their eloquent speeches. I speak as someone who was given assurances about campaigning on Report by the noble Baroness, Lady Northover. My filing system is not up to discovering whether she sent me a letter, but I have no recollection that she withdrew her assurances in any way. The set of regulations in Regulation 36(1) and (2) of Part 6, taken together, totally neuter the ability of local Healthwatch organisations to campaign effectively.

As my noble friend said, the extraordinary thing is that the Government have chosen, with absolutely brilliant timing, to bring this before the House on the day before publication of the Francis report. My noble friend was wise. He did not know when the Francis report was coming out, but the Government had an opportunity to offer the chance to defer these regulations. It is very odd that we are having this debate when no doubt tomorrow there will be an unleashing—a positive avalanche—of rhetoric about the need to put the patient at the centre of the NHS. There was a warm-up on “Newsnight” yesterday. We can see it coming. Now we have a set of regulations that will set up local Healthwatch alongside Healthwatch England. The organisations will be totally unable to campaign against policies that they regard as not in patients’ interests.

I will spend a few moments on the text of the regulations. The Explanatory Note on page 38 of the regulations states:

“Regulation 36 sets out certain political activities which are not to be treated as carried out for the benefit of the community”.

This is an extraordinary statement, but Regulation 36(1) and (2) go rather wider than that. The Explanatory Note does not accurately reflect what is in the regulations. Consideration needs to be given to the quality of the drafting of either the Explanatory Note or of Regulation 36(1)(a) and (b), interrelated with Regulation 36(2). Regulation 36(1)(a) and (b) prevents a local Healthwatch organisation promoting or opposing changes in the policy adopted by any governmental or public body in relation to any matter, including the promotion of changes to the policy, unless under Regulation 36(2)(a) they can reasonably be regarded as incidental to other activities which are acceptable. So it is left to a multitude of small local social enterprises around the country to make a judgment, day by day, about whether what they are doing offends the provisions in Regulation 36(1)(a) and (b), as modified by Regulation 36(2)(a).

Even if we assume that there is some scope under that wording for them to campaign—which I very much doubt on any reasonable interpretation of the words—they will be in a state of uncertainty, and they will be expected to resolve that uncertainty with the minuscule amounts of money they have to carry out their operations. So if the Government want them to be effective with the small amounts of money there is likely to be, why do they want them to be tied-up by and concerned about obscure regulations which call into question their right to do the sane and sensible thing on behalf of patients in their area?

This House operates on the basis that one can accept assurances from government spokesmen while legislation is going through and we do not pursue matters when we are given them. However, as an individual Member of this House, I take umbrage about the assurances we were given on our ability to campaign. And not only me—the point about campaigning was repeated by my noble friend Lady Pitkeathley and again we were given assurances. We did not press this point further at Third Reading but, had we not been given those assurances, I am sure we would have come back to this issue at that stage. The Government have some explaining to do about why those assurances were not reflected in the wording of these regulations.

I support the point made by my noble friend Lord Collins about the extraordinary definition of a lay person. As other interests said to the Secondary Legislation Scrutiny Committee, this definition of lay person and lay involvement creates a situation in which it is possible to have people in local Healthwatch organisations who could be said to be in a position to manipulate discussion and debate on behalf of the very people that a local Healthwatch organisation is supposed to be monitoring and looking into.

Finally, I draw attention to the requirement provisions in Regulations 40 to 43. If one looks at these as a normal human being, they again pose a bureaucratic nightmare that will be excessively burdensome for the small organisations which will have to understand what it all means. I do not think it is beyond the wit of the Department of Health, Ministers and civil servants to produce proportionate regulations in relation to small bodies which spend relatively small amounts of public money.

These regulations are totally disproportionate to what they are trying to regulate in the interests of patients. The best thing the Government can do is graciously to withdraw the regulations, think about what is going to happen tomorrow, reflect on this and, after further consultation with stakeholders, come back with regulations which live up to the promises that the Government made and are more appropriate for the organisations being regulated.

[Baroness Jolly]

My Lords, just under a year ago on 8 March 2012 we were asked, during the passage of the Health and Social Care Act, to accept a last-minute change of structure of local Healthwatch because, as the Minister put it at the time, on reflection the Government realised that greater flexibility was needed over the organisational form of local Healthwatch. It was not entirely clear what lay behind this sudden realisation, which happened after the Bill had been through the Commons. The House was given only five working days within which to make sense of 50-plus government amendments that were put down at the time to achieve this change.

This was a very unusual action for the Government to have taken and very little explanation was given. Stakeholders in patient and public engagement were not consulted; we were asked, effectively, to give the Government the benefit of the doubt. We continued to put our faith in the Government’s intention as stated in the White Paper, Equity and Excellence, which aimed to strengthen the collective voice of patients through a new independent consumer champion within the Care Quality Commission, manifested at a local level as local Healthwatch with a strong local infrastructure.

During the debate on Report, the Minister described Healthwatch as, indeed, the voice of the people. At that time, we were dealing with the third reform of the way in which local communities influenced their NHS in three years, and there was a general view that, for their sake, we needed to get on with it. To avoid switching off the power for local communities to have a say in local services for too long, we felt the turbulence of further reform needed to be kept to a minimum. We hoped that secondary legislation would give the system its real shape and we would have an opportunity to ensure that the essentials were in place, changes in structure notwithstanding. This secondary legislation, which is among the most difficult to fathom, really fails to reassure.

My noble friend Lady Cumberlege will deal with freedom of speech and action. I would like to ask my noble friend the Minister about two issues relating to who will make local Healthwatch’s decisions on what it does and how it does it, and what type of involvement lay people or volunteers will have in those decisions.

Local Healthwatch must be a social enterprise contracted by a local authority and may have many subcontracts with other organisations—which may or may not be local or social enterprises—to support or carry out its statutory functions. To try to cut through this structural tangle and preserve the essence of local Healthwatch as the Minister intended it to be—the “collective voice of patients” operating through a “strong local infrastructure”—in March 2012 we focused on who would be involved. We debated the independence of local Healthwatch from the local authority that contracts it, and similarly the independence of Healthwatch England from the CQC, of which it is a committee.

We felt that if local people wholly outside the health and social care system were leading this new structure, they would make it work properly, despite any inherent inadequacies which we were not afforded the time to correct. Therefore, we were pleased when on Report the Minister gave a clear and unambiguous undertaking on behalf of the Secretary of State. She said:

“I have listened to the concerns expressed about the need for local healthwatch to have strong lay involvement. I completely agree. This will be vital to the success of local healthwatch. Therefore, I confirm to the House today that we will use the power of the Secretary of State to specify criteria, which local healthwatch must satisfy, to include strong involvement by volunteers and lay members, including in its governance and leadership. This will have the effect that a local authority cannot award a local healthwatch contract to a social enterprise unless this condition is satisfied. I hope that that provides reassurance to noble Lords”.—[Official Report, 8/3/12; col. 1990.]

Despite the evident good intentions behind this undertaking, something seems to have gone wrong with its execution. There is a serious legal contortion in the regulations around the definition of “lay persons and volunteers”. Suffice to say, it can include staff of health and social care commissioners or providers, as long as they are not clinicians.

This brings me to the role of the Secondary Legislation Scrutiny Committee of your Lordships’ House. It considered this SI on 15 January and its 23rd report draws these regulations to the specific attention of the House,

“on the grounds they give rise to issues of public policy likely to be of interest to the House and that they may imperfectly achieve their policy objective”.

The committee noted that staff could be decision-makers in local Healthwatch. The department did not dispute this in its response to the committee, which therefore concluded that,

“the current wording may leave Local Healthwatch vulnerable to manipulation”.

The committee has been unequivocal in highlighting the errors it perceives in the secondary legislation, saying:

“The Department has offered a legal and policy response, but that may not be enough: the Department needs to address urgently the points raised to the satisfaction of the public because without trust in the basic structure the Department simply may not get the volunteers it wants”.

These regulations do not deliver on the undertaking we were given. There is no assurance of independence, credibility or a strong collective voice for patients. Local Healthwatch could be a mere proxy voice spoken by others—indeed, those others are the very people against whom that voice may wish to speak.

To help reassure both this House and the committee, perhaps the Minister could help me with two scenarios. First, could the manager of a care home sit on its local Healthwatch? If he or she did so, how confident would local people be in the conclusions of that local Healthwatch about the quality of services both at that care home and others? Secondly, could a local profit-making provider of primary care be a local Healthwatch contractor? If so, could its manager sit on the local Healthwatch decision-making group? How confident would local people be in the information they obtained from local Healthwatch in helping them choose a GP?

Moving on, what exactly constitutes “involvement”? The regulations require,

“a procedure for involving lay persons or volunteers”,

although the distinction is unclear. As the Secondary Legislation Scrutiny Committee points out, “involvement” is not defined. The main problem is that in paragraph 38 the regulations deliver,

“the involvement of lay persons and volunteers in the governance”,

but not participation in decision-making, which one would have expected to see in Regulation 40(4).

We know from Sections 23 and 26 of the Health and Social Care Act, which relate to the national Commissioning Board and CCGs, that involvement in the context of patient and public involvement may simply mean giving information. There are no criteria for when more is required.

Health and Social Care Bill

Debate between Lord Warner and Baroness Jolly

Wednesday 29th February 2012 Lords Chamber

[Lord Warner]

My Lords, I rise because I have added my name to the amendment of the noble Baroness, Lady Cumberlege. I did so because there is a part of me which actually wants to save the Health Secretary from himself. He is going down a path—for good reasons, in some ways—by which he wants to be accountable, through the department, for public health in this country. I understand that, and I understand some of the arguments that the Government have put forward about ministerial responsibility and accountability which were at the heart of some of the thinking behind the Public Bodies Bill. I can understand why that will happen. However, this is an area where science is of the essence. The Secretary of State and the Department of Health’s management and credibility in public health would be seriously damaged if the scientific underpinning of it were not sound.

The CDC in America—and I have been to the CDC in my visits to America—is an executive agency but it is a very special executive agency. It has a route into Congress to secure its funding. That makes it very different from executive agencies in this country. It has that route into Congress because it has a very strong scientific reputation. It is the credibility of its scientific reputation that enables it to be both independent and a part of the federal Government.

We cannot create that quite as easily with an executive agency here. I believe that the Government made a mistake, almost in a casual way, by abolishing the Health Protection Agency without being sure that they had another model to put in its place that would preserve that scientific independence and the kind of funding that the HPA was able to raise. We do not live in such splendid financial circumstances that we can casually toss away £150 million a year—which is the danger that we are in. I have not yet heard assurances from the Government about how they will protect access to that funding, and how they will protect the ability of people working in Public Health England to undertake independent research and be sure that their findings will be published without being censored in any way. We need absolute guarantees on that, and they should be in the Bill. That is why the amendment of the noble Baroness, Lady Cumberlege, is so convincing. I would prefer to have a special health authority, if we thought we could get one. We have compromised by going for an executive agency. However, the agency must have the kind of dimensions that are set out in Amendment 162.

I will say a few words about the issue of the chair. I heard the story that the noble Baroness, Lady Cumberlege, mentioned—namely, that the Secretary of State would be interested in the Chief Medical Officer being the chair of the committee overseeing the work of Public Health England. I am a member of the Science and Technology Committee. In two inquiries we came up against the issue that in the Department of Health, uniquely across Whitehall, we have a Chief Medical Officer who is also the Chief Scientific Adviser to the Government. Both jobs seem capable of keeping someone gainfully and happily occupied full-time for most weeks of most years. Adding the chairmanship of Public Health England would be an incredible proposition. There are already concerns in the Science and Technology Committee about combining the posts of CMO and Chief Scientific Adviser. There is an unresolved issue about how we will proceed on that. However talented Dame Sally Davies is, we do not want to muddy the waters further by asking her to take on the chairmanship of Public Health England.

We need to get to the bottom of the guarantees that are required to preserve the integrity, scientific independence and public credibility of Public Health England. If we are to have an executive agency, we need something very like what is proposed in the amendment of the noble Baroness, Lady Cumberlege. I hope that the Government will accept it and give us some certainty that the money that the HPA has raised in the past will be guaranteed as something that the new executive agency, Public Health England, will also be able to secure.

[Baroness Jolly]

My Lords, I will speak very briefly, because a lot has been said on this amendment, to which I was happy to add my name. I welcomed the amendment and the structure that it laid out. I am sure that my noble friend Lady Cumberlege will address the amendments to the amendment.

The issue is one of culture. The culture proposed by the Government does not achieve the desired vision for Public Health England. An executive agency is proposed that will be independent, able to speak out without check and research as it thinks necessary, with an independent chair and non-executive directors. At the beginning of Committee, I met the president of the Faculty of Public Health. In advance of this debate, I rang her this week and we spoke again. She expressed her anxiety about the structure proposed by the Bill.

The role of Public Health England should be to implement the policy made by the department. It should also have the opportunity to influence that policy. Clearly, the Government’s structure does not allow for that. I would really welcome an explanation from my noble friend about the rationale for favouring an organisation that is lacking in independence and that therefore will also lack in public and professional trust.

Health and Social Care Bill

Debate between Lord Warner and Baroness Jolly

Monday 5th December 2011 Lords Chamber

[Baroness Jolly]

My Lords, I rise to underpin much of what has already been said, so I will say it very briefly. The appointment of a DPH to a local authority will be critical. Not only will he or she play a key role in something like an outbreak of E. coli, when that sort of expertise is looked up to and expected from the community. They will be absolutely pivotal in delivering and making health plans, both through the health and well-being board and working with the CCGs. There is no way that DPHs could be a shrinking violet; as my noble friend Lady Cumberlege has just said, they really have to be able to mix it and get in there, but what they do has to be totally evidence-based. So it is a really interesting balance for someone who has their hands on all the facts but is not necessarily an introverted individual. One key thing that they really have to have is the support of the chief executive of the local authority. Furthermore, they have to report to them and have exactly the same status as, say, the director of adult social services so that they have that level of authority when going out and talking to various people in the health and social care community. That will be absolutely critical if the localism and local decision-making built into this Bill is going to work.

I have attached my name to Amendments 228 and 229. The person described in the amendments really should be seen as a person of standing, so they should have director status and be responsible to the chief executive of the authority. I was a bit alarmed when talking to my own MP this weekend. He was saying that he had learnt from his conversations with the chief executive of the local authority that the authority was not at all minded to do this with the appointment. That would completely undermine any sort of position that the director might have. They have the key role and need to be a person of standing. Without them having such a position within the council, many of the plans will be totally undermined.

[Lord Warner]

My Lords, I support the thrust of most of the amendments in this group and have added my name to Amendments 226, 259 and 339. As others have said, it is essential to have in the Bill a clear commitment from the Government, and indeed from Parliament, that three things are very clear when it comes to directors of public health. First, we have to make sure that they should be registered public health specialists, with appropriate qualifications and expertise. That seems to me a given if these people are to have standing in the local communities and, perhaps, even in a wider area. Secondly, the director should be accountable to the local authority’s head of paid service and be able to report directly to the local authority itself, particularly when there is an area of great concern in that local community. One does not want people intervening between the director and local authorities’ main committees when a serious incident is taking place locally.

Thirdly, for the reasons that everybody else has mentioned, we have to ensure that a director of public health cannot simply be fired on a whim because they are doing something which is uncomfortable or unpopular, or has brassed off a local interest of one kind or another. That is particularly critical when we see the difference of approach that the noble Baroness, Lady Cumberlege, put very well: between the evidence-based approach of a director of public health and the commitments that local authority members, quite reasonably, have to seek re-election from time to time. That is how the system works, but a different approach is likely to run through some local areas when something is uncomfortable for the local authority but is backed up by the evidence that the director of public health can put in the public arena.

Directors of public health need to be seen to be capable of doing the job and to be able to deliver bad news—as well they may have to. They should be able to expect to be supported and protected locally when they have to deliver uncomfortable news. Amendment 226 is part of that package of armour that we need to wrap around directors of public health. There may be better ways to do that in these amendments than in Amendment 226, but its purpose certainly ought to be in the Bill.

Amendment 259 is an important part of the protective armour that I have mentioned for directors of public health, in that it aims to ensure that they simply do not lose ground financially over time in their pay and conditions of service with NHS medical equivalents. I am not a supporter of creating situations where there are bidding wars between local authorities and the NHS. We have seen that with occupational therapists over the years, where one side decides that it can secure some advantage by upping the ante a bit for a specialist group when there is a degree of local competition for a sometimes scarce resource, so I am not in favour of doing that.



However, my experience—and I have worked six years in local government—is that where there are these bidding wars, usually the NHS specialist is further up the greasy pole in terms of pay and conditions of service, and the specialist at the local level is trying to catch up with what has happened. That is why Amendment 259 is important, in that it ensures that there is a catching-up process. Much more importantly, it tries to ensure that it is not necessary to have a catching-up process, because there is an agreed alignment between the pay of those specialists who are employed by the NHS and those who are employed by local authorities.

In speaking to Amendment 339, to which I have put my name, I should declare an interest, in that my daughter is a non-medical public health specialist, although I hasten to add that I have in no way discussed this with her, so she should not be held responsible for the views I am about to express. It is vital that public health specialists are brought within the purview of the Health Professions Council and that there is a separate register for non-medical public health specialists which comes under the purview of that council.

Increasingly, the behavioural aspects of successful public health policies and their implementation are absolutely critical. This is not an area where we should be relying only on personnel with medical or dental qualifications. If we are to have successful public health policies, it is vital that we have people with the kind of background where they can communicate, understand, and do research on the emerging areas of the behavioural sciences. I hope, therefore, that we can have a register which has public standing and is supervised by the Health Professions Council.

Before I sit down I would like to start this session with a mild chastisement of the Minister. I said at Second Reading that I had a benchmark for the Minister’s flexibility in accepting amendments to this Bill. However, he has been uncharacteristically inflexible in responding to many of the noble Lords’ concerns in their amendments. Of course, he has always been very polite; but we have not seen much evidence of the Government being willing to take away some of these issues and come back with amendments at a later stage. I would say to him that this set of amendments gives him a good chance to turn over a new leaf. They do not affect the Government’s policies in this Bill. However, they strengthen the ability of the Government to deliver those policies in the way that they have strengthened the arrangements around the appointment, the pay and the safeguarding of the independence of the directors of public health. I do hope, therefore, that we will see a different type of Earl Howe appearing in relation to these particular amendments.

Health and Social Care Bill

Debate between Lord Warner and Baroness Jolly

Monday 28th November 2011 Lords Chamber

[Lord Warner]

My Lords, would the noble Baroness accept from me, as someone who was this great centraliser sitting in Richmond House, that we actually set up these capacity-building capabilities for social enterprise in the voluntary sector, in response to those sectors’ concerns about their inability to make headway locally and enter the market to provide services in those areas? That was not a centralising tendency on our part. It was actually a response to people saying to us that we needed more capacity-building capability at the centre because it was not being provided at the local level.

[Baroness Jolly]

My Lords, I can give an example of where it has been provided. Today I have been talking to the operations director of Peninsula Health Care. That was the provider arm for the Cornwall PCT which was providing community hospitals and community services, and which is now a community interest company as of 1 October 2011. It has already brought across all the arrangements that it has with its local authority; Section 75 and so on, shared budgets for equipment, and all sorts of innovative work alongside.

The whole thrust of the amendment of the noble Lord, Lord Rooker, was part of our manifesto, it was part of the coalition agreement, and I feel quite comfortable about supporting it.

NHS: Waiting Times

Debate between Lord Warner and Baroness Jolly

Tuesday 22nd November 2011 Lords Chamber

[Lord Warner]

My Lords—

[Baroness Jolly]

My Lords—