Health and Social Care Bill

Baroness Cumberlege Excerpts

Wednesday 29th February 2012 Lords Chamber

Moved by

[Baroness Cumberlege]

141: Clause 51, page 83, line 26, at end insert “and its Healthwatch England committee”

[Baroness Cumberlege]

My Lords, this is a very simple and non-controversial amendment. Under Clause 51, the Secretary of State has a duty to keep under review the effectiveness of key bodies in the NHS. This is a crucial part of the Secretary of State’s responsibilities in ensuring that he or she can exercise ministerial accountability for the health service. As this is a new body, through the Secretary of State, we will want to ensure that it is to carry out its functions effectively. Healthwatch England has to undertake certain tasks—for example, making annual reports to be laid before Parliament. Other reports will be at its discretion. These activities will be easy to monitor, but it will be much more difficult to assess the quality and the appropriateness of the advice and information or other assistance it chooses to give.

In her letter to noble Lords on 21 December, my noble friend Lady Northover told us that she did not expect Healthwatch England to give the CQC, the NHS Commissioning Board or other bodies an easy ride. She went on to state:

“We fully expect HealthWatch England to raise what at times may be awkward, difficult questions with respect to health … and to be able to do this publicly”.

It is the Government's intention to create not a patsy organisation but one that will be a champion of health and, on occasions, a difficult and awkward companion, focused on improving the quality of care in both health and social services. If it does not, it will not fully represent the voice of patients and service users.

The Care Quality Commission is one body listed in the clause. As the Bill stands, HealthWatch England will be a committee of the CQC. However, as we have discussed in many debates on the Bill—and I believe that more are to come when we come to debate the amendment of the noble Lord, Lord Patel—there will be a need for it to remain operationally independent of the Care Quality Commission. Therefore, I suggest that a review of the Care Quality Commission may not be an appropriate way of fully scrutinising the role of HealthWatch England, and that such scrutiny should be included in its own right in the clause.

That is why I tabled an amendment to add HealthWatch England to the list of bodies that the Secretary of State must keep under review. It would make it clear that HealthWatch England is independently accountable for how effectively it goes about its work, and cannot be overshadowed by—or hide behind—the review of the role of the CQC. I hope that my noble friend will look kindly on this simple and not very earth-shattering amendment. I beg to move.

[Lord Harris of Haringey]

My Lords, I seek clarification on the amendment. I am sure that the noble Baroness, Lady Cumberlege, means well, but I note that the formulation she used was,

“and its Healthwatch England committee”.

I am sure that it would have been possible to draft the amendment so that it referred simply to HealthWatch England, which would have avoided raising the question that we will come to at a later stage of whether HealthWatch England should be part of the CQC or any other august structure of the NHS. It is an important technical point; I hope that the amendment does not pre-empt any later discussions.

The motivation that the noble Baroness ascribed to the amendment—to demonstrate that HealthWatch England is independently accountable—is extremely important. It is entirely proper that HealthWatch England should be seen to be accountable to the Secretary of State. Certainly it should not exercise that accountability through another body, particularly one which it might on occasions wish to criticise, or about which it might want to raise important concerns or say that it has not done what it might have. Therefore, to demonstrate that HealthWatch England is independently accountable is an important objective. My concern is that the amendment may solidify something that at the moment comes later in the Bill, but which I trust will not remain there by the time we have finished Report: namely, the requirement that HealthWatch England is simply a committee of the CQC.

There is also a question about how accountability will work with respect to the Secretary of State. I suspect that the quotation from the noble Baroness, Lady Northover, to which the noble Baroness, Lady Cumberlege, so approvingly referred, about how difficult and painful would be some of the discussions with HealthWatch England, will sometimes apply also to the Secretary of State. When I was for a number of years director of the Association of Community Health Councils, I collected personal denunciations that I had received from successive Secretaries of State. They came from both parties: indeed, the most vehement denunciation was from a Secretary of State from my own party, who perhaps expected more from me than the criticisms that I had raised.

The point is that this will not be an easy relationship. Even the accountability that is envisaged by the reference to “keeping under review” will, I suspect, lead to tensions. However, I do not believe that one can have a body of this nature that is not accountable in some way to the Secretary of State. I simply look forward to the maturity of future Secretaries of State, of whatever party, who will recognise that a body such as HealthWatch England, and local healthwatch organisations, are intended sometimes to be irritants.

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

My Lords, the Secretary of State has a duty to keep under review the effectiveness of the exercise of health service functions by certain national bodies. These bodies are listed at new Clause 247C, inserted by Clause 51 of the Bill.

As it is currently drafted, the Bill requires the Secretary of State to keep the effectiveness of the Care Quality Commission under review in so far as it is exercising functions in relation to the health service. However, it does not make explicit reference to the HealthWatch England committee. Yet, while HealthWatch England will be established as a committee of the Care Quality Commission, it will have its own statutory functions that it must exercise outside of the CQC’s other functions.

This is, therefore, a helpful and welcome amendment from my noble friends Lady Cumberlege and Lady Jolly. It helpfully clarifies the distinction, in terms of the Secretary of State’s accountability, between the exercise of functions by HealthWatch England and that of the CQC.

The amendment would add HealthWatch England to the list of bodies the Secretary of State must keep under review in respect of how effectively it exercises its functions in relation to the health service in England. Importantly, it would emphasise that HealthWatch England itself is responsible for exercising the statutory functions of HealthWatch England.

I have reflected on this and I will be supporting this amendment. I hope that other noble Lords will join me in doing so.

[Baroness Cumberlege]

My Lords, I think we are on a roll. I am very excited that we have had another amendment accepted. I very much thank my noble friend.

I appreciate some of the other points that have been made in this debate, but I think we will be debating them next week and perhaps we could hold our fire until then. Indeed, we have debated them previously and noble Lords will know that I am in favour of the present proposal in the Bill that HealthWatch England should be a committee of the CQC, and that is why I have chosen those particular words.

I am very grateful to my noble friend. I think this is the first time ever this has happened to me and I feel very pleased about it. Thank you.

Amendment 141 agreed.

--- Later in debate ---

Moved by

[Baroness Cumberlege]

162: After Clause 59, insert the following new Clause—
“Public Health England
(1) Public Health England shall be an executive agency engaged in the exercise of public health functions accountable to the Secretary of State.
(2) Public Health England shall have a board chaired by an independent chair.
(3) The board shall have a majority of independent non-executive directors appointed by the Secretary of State.
(4) Any appointment of the independent chair or independent non-executive directors of Public Health England shall be made by the Secretary of State after consultation with the Faculty of Public Health and such other bodies as the Secretary of State considers appropriate.
(5) Public Health England shall be able to—
(a) undertake independent research;(b) bid for funding for research from research councils, charities and national and international funding agencies;(c) publish research findings;(d) tender for contracts, including research for work related to the functions of The Agency.”

[Baroness Cumberlege]

My Lords, this amendment refers to the setting up of an executive agency, Public Health England. I thank noble Lords who have put their names to this new clause. I sense that there is a spirit of generosity on the Front Bench tonight and I hope that it will not evaporate before we conclude this debate.

Nowhere in the Bill is Public Health England mentioned. The information comes to us not through the Bill or its schedules but through the White Paper Healthy Lives, Healthy People. It therefore has no legitimacy in primary legislation but we know that it is the intention of the Government. We are told that Public Health England will have a mission across the whole of public health: protecting the public from health threats; improving the healthy life expectancy and well-being of the population; and improving the health of the poorest, fastest. Public Health England is to be an advisory service with a civil servant as the chief executive—there is no mention of a board, just the chief executive. I find this extraordinary. As the noble Lord, Lord Warner, mentioned in Committee, this model flies in the face of the UK’s corporate governance code, which states:

“There should be a clear division of responsibilities at the head of the company between the running of the board and the executive responsibility for the running of the company’s business”.

If that is important for the corporate world, how much more important is it for safeguarding and improving the nation’s health?

What is being proposed has no division between the board and the executive, because there is no board. How strange. No, not strange—not right and not good enough. The role of the board is essentially to challenge the executive, to ask awkward questions, to be independent and to provide oversight, leadership and vision. This poor executive is an orphan; he or she is operating without a parent. In the model proposed, Public Health England is in the cosy embrace of the department, with a civil servant directly accountable to the Secretary of State. It is a model that produces a fire blanket to extinguish any spark of innovation or risk-taking.

Despite recent revelations I am a huge admirer of the Civil Service, but I think that your Lordships will agree that the people who enter it are not the world’s greatest entrepreneurs or risk-takers. If they were, we would be in trouble; that is not their role. That is recognised in the department’s operating model and endorsed by my noble friend Lady Northover in her letter to us dated 21 December, where we learn that there are to be three non-executive members—note, non-executive—not directors. Theirs is not to direct, unlike the new Commissioning Board, or indeed NICE or other government agencies, but to provide independent advice and support. Support is comforting and advice can be ignored; neither element has clout. However, these members are to be trusted, since one will chair the agency’s audit and risk committee.

I suggest to my noble friend that here is an opportunity to make the non-executive members directors and to appoint one as the independent chairman of the agency board. I hope that my noble friend will consider this and meet us, along with other Ministers, in order to discuss this further—there is an opportunity before Third Reading—so that we can see what progress we can make.

The essence of public health contains the basic principle of social justice. It is to ensure that people have access to the essentials for a healthy and satisfying life. To achieve that often involves conflict with Government. As the Secretary of State states in his foreword to the White Paper, we need,

“a radical shift in the way we tackle public health challenges. We have to be bold because so many of the lifestyle-driven health problems we see today are already at alarming levels. Britain is … the most obese nation in Europe. We have among the worst rates of sexually transmitted infections recorded, a relatively large population of problem drug users and rising levels of harm from alcohol”,

and he goes on. Nobody can challenge the Secretary State’s ambition or commitment to public health; it is quite remarkable. He goes on to say:

“The dilemma for government is this: it is simply not possible to promote healthier lifestyles through Whitehall diktat and nannying about the way people should live”.

He is 100 per cent right. That is why we need an independent board that can give unpopular messages straight to the public—a board that can check the veracity of research, unfettered by political pressures. It is a matter of trust—the public’s trust that they are not being manipulated by politicians of any colour; the trust of would-be research funders that their funds are safeguarded by an independent organisation; and trust that Public Health England has the well-being and safety of the public at heart.

BSE demonstrated the importance of scientific advice being seen to be impartial and free from political influence. The episode had a lasting impact on public trust. Independent experts and the medical professions are far more likely to be trusted, and their advice acted on, than any Government. A recent Ipsos MORI poll found that 93 per cent of the public felt that it was important to have an independent organisation providing advice on protecting people from new diseases and environmental hazards, and helping health services to prepare for and respond to emergencies. That is an incredibly high level of trust, especially when it is compared to trust in politicians. Only 14 per cent of the public think politicians tell the truth and I am sorry to say that only 17 per cent trust government Ministers. Our present Ministers on the Front Bench are excluded from this.

I am very grateful to noble Lords who have put their names to the amendment, which seeks to ensure that Public Health England, as an executive agency, is accountable to the Secretary of State. It will have a board with an independent chair and non-executive directors appointed by the Secretary of State after consultation with the Faculty of Public Health and such other bodies as he considers appropriate. It will undertake independent research and will be able to bid for funding from research councils, charities and national and international funding agencies. It will publish its findings and tender for contracts, including research contracts, for its related functions.

In Committee, the noble Lords, Lord Turnberg and Lord Patel, among others, expressed concern at the abolition of the Health Protection Agency. It is a much admired, non-departmental public body, which is soon to be abolished. The noble Lords expressed deep concern about the future funding of Public Health England and its ability to finance and carry out world-class research.

In her letter, my noble friend Lady Northover states that,

“the funding rules of intergovernmental organisations such as the European Union may limit the capacity of an Executive Agency to apply directly to them for research funds”.

The position is not clear and the Government are in the process of clarifying it. I ask my noble friend: has the situation been clarified? This is critical, as the HPA currently derives more than half its annual operating costs from external sources. It cannot attract and retain world-class researchers without the necessary resources and taxpayers will not be forgiving if more is demanded of them to fill the void. Therefore, I urge my noble friends and the Secretary of State to agree to the proposed new clause.

The Secretary of State has suggested to me that the Chief Medical Officer should chair the board but that is not a solution. The CMO already has two important jobs—those of being CMO and chairing the NIHR. Nor does that solve the problem of independence. Therefore, I hope my noble friends will reconsider and put forward an acceptable proposition for noble Lords to consider. I beg to move.

--- Later in debate ---

Amendment 162B (to Amendment 162) not moved.

[Baroness Cumberlege]

My Lords, I thank all noble Lords who have taken part in the debate. I have not detected any demurring or a feeling that this was not a useful proposition to put forward; it is extremely important in the nation’s health and should be pursued further.

I thank the noble Lord, Lord Beecham, for his suggestion of a special health authority. I can understand why that is quite appealing but, on the other hand, I am pragmatic. He said that he wanted to take my amendment a step further; I fear that that would be a step too far. I was trying to build on the concession that we had already been given of having three non-executive members. It is a compromise but I believe that politics is about the art of the possible and I thought this suggestion might appeal to the Government.

I thank the noble Lords, Lord Patel, Lord Warner and Lord Turnberg, and the noble Baronesses, Lady Masham, Lady Jolly and Lady Finlay, for staying until this late hour.

[Lord Hunt of Kings Heath]

My Lords, I declare an interest as president of the Royal Society of Public Health, which I should have done in my earlier intervention. Can the noble Baroness—briefly but taking a little time—say whether she thinks from what she has heard from the Minister that she can now bring this issue back on Third Reading? I was not absolutely sure what the implications of the offer of talks meant in terms of our being able to debate it on Third Reading. I hope she takes it as an acceptance that the matter could come back on Third Reading.

[Baroness Cumberlege]

Perhaps I may address that in one minute’s time.

I appreciate the commitment of my noble friend Lady Northover to this matter. I understand that the Government are anxious to build on public health, as the noble Lord, Lord Patel, said, and that they take this area with all due seriousness.

[Baroness Northover]

I assure my noble friend that we do indeed take this area very seriously. We are looking forward to the discussions that will happen with the Secretary of State, my noble friend and others.

[Baroness Cumberlege]

I thank my noble friend for that. I must say I am not reassured. What noble Lords were saying about credibility in the public mind is very important. There is a perception, whether we like it or not, that departments within Government tend to be closed—not secretive perhaps, but not very accessible to the general public. They have an image, and that perception is a reality in the public mind. Although there is an intention that they should be open and transparent, I am not sure the public see it like that.

On the question of trust, it was interesting that the Office for National Statistics at one time lacked a degree of credibility. People did not trust the figures that were coming out and so the Government of the day reconstituted it with the UK Statistics Authority and set it up in very much the way that we are trying to set up Public Health England. There is another model there. The Food Standards Agency, NICE and a lot of the new organisations—indeed the NHS Commissioning Board—are all being set up with non-executives and independent chairs. It seems really strange that here we have one of the most important new ideas coming forward with the establishment of Public Health England, trying to do something totally different.

I have never taken an amendment to Third Reading, nor have I tested the opinion of the House against the wishes of the Government whom I support. However, I have to say that I feel so strongly about this issue. I very much welcome the talks that have been promised but that does not rule out the possibility—I hope it will not become a reality—of taking this to Third Reading. I hope, if we meet the Secretary of State and our House of Lords Ministers as has been promised, that we will come to some accommodation. This is just too important to be left as it is and we need to take it further. I very much want to reach agreement in the future. It would not be a good idea to test the opinion of the House right now, because we would have a very small vote, but I do want to give notice that I feel strongly and will bring it back at Third Reading. However, as we cannot reach an accommodation at this time, I beg leave to withdraw the amendment.

Amendment 162 withdrawn.