Health and Care Bill

Baroness Thornton Excerpts

Committee stage & Lords Hansard - Part 1
Tuesday 11th January 2022 Lords Chamber

Moved by

[Baroness Thornton]

1: Clause 1, page 1, line 5, at end insert “after an impact assessment under section 153 has been published.”

[Baroness Thornton (Lab)]

My Lords, I move Amendment 1 and speak to Amendment 313 in my name, but I shall allow those noble Lords to leave who do not particularly wish to hear my peroration this afternoon.

It is a pleasure to open proceedings in Committee on the Bill. These amendments concern the need to publish an impact assessment, a matter with which your Lordships’ House is very familiar. I expect that the Minister will now tell us that the Government have now delivered on this amendment because—guess what?—first thing this morning, into our inboxes popped an impact assessment, so I of course claim that as my first victory. We need to find out whether this impact assessment is actually any better than the ones that have gone before and whether it fulfils the requirements in both the amendments, and I confess I have not had time to read it yet, but I commend it to your Lordships’ House.

The real issue is that the Government’s lack of serious and realistic impact assessments is symbolic of the lackadaisical manner that this Government take to Parliament and the legislative process, which is why I intend to take this opportunity to make a few general points for context on themes which I expect will recur throughout deliberations on the Bill.

We have received a highly critical report from the Delegated Powers and Regulatory Reform Committee and, more recently, a report from the Select Committee on the Constitution. In the words of the Delegated Powers Committee, the DHSC is again introducing a Bill which

“falls so short of the standards which the Committee — and Parliament — are entitled to expect.”

The Bill lamentably fails to address the recommendations set out in the Cabinet Office’s Guide to Making Legislation, and the Constitution Committee agrees with that assessment. It says:

“We regret that the powers under this … complex bill are structured in a way that hampers greater detailed parliamentary scrutiny, and note that the Bill … was not subject to pre-legislative scrutiny”,


from which it would have undoubtedly benefited. The Delegated Powers Committee further says:

“The Health and Care Bill is a clear and disturbing illustration of how much disguised legislation a Bill can contain and offends against the democratic principles of parliamentary scrutiny.”


These are serious charges, and ones which tell of the nature of the task before the House in the next few weeks. The Bill allows 21 affirmative regulations and 42 negative. It provides for Orders in Council, schemes, rules, licence conditions, 46 directions, and makes 17 references to guidance and one to publishing the document. Of the 156 delegated powers, more than half are subject to no parliamentary procedure. I urge noble Lords to read and reflect on both those reports and allow their concerns to govern the process that we have before us over the next few weeks. Our job, surely, is to put some flesh on this skeleton framework Bill. We need to test the Bill with these reports, and the splendid, if concerning, document Democracy Denied?

On that theme, we on these Benches are concerned about how the Bill centralises powers, with the system being effectively top-down, managed by the new, improved NHS England—for example, with powers to appoint and dismiss key staff without any kind of democratic oversight. On top of that, we have a power grab by the Secretary of State that has drawn widespread opposition.

At Second Reading, and previously in the Commons, views have been expressed about the Bill: how it fails to address the main issues facing the care system and that it risks disruption in the NHS at a time when attention should be elsewhere as we struggle against Covid, which continues.

Of additional concern, we are told to expect two vital streams of information of great relevance: a White Paper on integration and further announcements on changes to social care. It would help to know when these will be available. Is it sensible to proceed without them?

It is welcome that the implementation date has been pushed back and that we have more time to undertake effective scrutiny of the Bill. Our position is clear. We support the parts of the Bill that come directly from the long-standing requests from the leadership of the NHS to remove the worst aspects of the previous 2012 Act. We have already made the point that we warned about the consequences of that Act and, in general, we welcome a return to principles of collaboration and co-operation.

Our aim will be to ensure that the NHS’s desired outcome is achieved with appropriate safeguards against unintended consequences such as a rise in private sector involvement or an increase in the power of vested interests over those of patients, but we will do so in a way that minimises any disruption.

It would of course have been far simpler to have a Bill just reversing the previous Act, which should have been introduced years ago as soon as the negative impacts had been properly recognised. Such a Bill would have passed much more easily, but we are where we are.

It would not be too harsh to say that the Bill has become a bit of a mess and we are here to do our best to get the legislation into shape. So far, there is evidence of a lot of agreement on the major issues with three or four glaring exceptions which we hope we will be able to resolve perhaps between the end of Committee and Report. Our challenge is how valid concerns are dealt with and how much the House is prepared to leave to ministerial assurances of good intent—as it always has been.

The amendment regarding implementation sets out concerns about the extent of any disruption to an already hard-pressed care system. Cynics say, and the evidence tends to confirm, that reorganisations rarely achieve anything much other than disruption and unintended consequences, and this is an NHS reorganisation Bill above all else. It is to be hoped that ending compulsory competitive tendering, putting the integrated care bodies on to a stronger statutory footing and consolidating the top level of the NHS can be done with limited impact.

It should be mentioned that many aspects of the changes are either already implemented or will go ahead even before the legislation is passed. The NHS has got into the habit of ignoring the legal niceties in recent years to get round the problems created by the 2012 legislation, and I am not sure whether it should be congratulated on that or not. However, it should be a fundamental part of our scrutiny that we have a full and comprehensive impact assessment with all the assumptions and expectations spelled out. I am not sure whether this document fulfils that; we may return to it later in the Bill.

The previous impact assessment was very poor and incomplete. Our amendment points this out and suggests that, with a system as fragile and complex as the NHS, there ought to be a reasonable period for assessing the impact and planning accordingly. This is not intended as a delaying tactic. If the alleged impact assessment that we have so far had been a great deal better, the need would not be so strong. Delay will not help the NHS but neither will a bad Bill. Let us remember that aspects of the previous Act were still being argued about years after it had passed.

Others are also intending to contribute on the general point about the need for some assessment of impact, perhaps through a review or through a parliamentary process such as a sunset clause. We will support those too. I beg to move.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

I start by thanking the noble Baroness, and indeed all noble Lords who have spoken thus far. I will make a general point in response to my noble friend Lord Cormack. I recognise that I am relatively new to this House and that I have much to learn. I hope to learn much, not only from noble Lords who have more experience of the procedures of this House and of holding the Government to account but from many noble Lords from across the House with medical expertise and management expertise in the health and social care sector.

I also thank the noble Baroness, Lady Thornton, for bringing this debate before the Committee. Amendment 1 would mean that we could not commence the change of legal name from the National Commissioning Board to NHS England until after an impact assessment for each of the clauses in Part 1 of the Bill is published, while Amendment 315 would mean that we could not commence Part 1 until after the publication of an impact assessment for each clause’s impact on the risks, costs and benefits to patients.

I hope I can reassure the noble Baroness that my department has published the impact assessments. She acknowledged this and I accept that they were not published in the most timely way. I will endeavour to do my best to make sure that we publish these assessments with as much notice as possible. They are available for noble Lords to review on GOV.UK. I am very happy for the noble Baroness to take credit for the first impact assessment. We will endeavour to do better. We will also commit to publishing further impact assessments for secondary legislation made under the powers contained in the Bill, where those regulations will have significant impact on the health and care system or private businesses, to provide transparency and clarity to the system.

The amendment would also delay the commencement of Part 1 until at least six months after commencement regulations were laid before your Lordships’ House. This would delay the implementation of the key provisions contained in Part 1.

The NHS put forward its recommendations for legislation in 2019. It is preparing, subject to parliamentary passage, to implement the ICB provisions of the Bill from July 2022. We know that ICBs in effect exist in many areas, in whatever form of development, and it is essential that we put these on a statutory footing as soon as possible. The development of ICBs builds on years of development work in local systems to improve partnership working. Delaying the implementation risks a loss of momentum in establishing statutory integrated care boards and the benefits that they are intended to deliver. For these reasons, I ask the noble Baroness to withdraw her amendment.

[Baroness Thornton (Lab)]

I thank the Minister for that very gracious answer and start to our deliberations. I also thank in particular the noble Baroness, Lady Walmsley, and the noble Lord, Lord Cormack. I really was rather hoping that the noble Lord, Lord Cormack, would come in, as this is absolutely what he knows about. He is quite right. I hope that noble Lords who are experts in this will look carefully at the Bill and at the two reports I referred to, because they will need to guide us in our deliberations over the next few weeks.

Let us see what the impact assessment says—whether it works or not—and see whether we need to review certain parts of the Bill with a view to looking at the Constitution Committee’s report, for example, which also was published only yesterday. With that, and with the warning that this is the beginning and not the end of the discussion, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

My Lords, I must declare an interest, because a lot of the outcome measures that are now used are in place at Cardiff University. I will expand a little on and support what my noble friend Lord Patel said about outcome measures, particularly for something such as cancer. That is in part because the disease process itself is marching on all the time. It is different from many other diseases, where there might be a chronic condition and other things happen as a result of it. If you do not intervene rapidly with some cancers, you miss the boat and go from being able to cure it to a situation where you certainly will not be able to.

The other group of outcome measures that I do not think we should forget has just now been developed: family-reported outcome measures. That is the impact on the family. We know about the number of carers that there are. There are child carers and many unpaid carers. Having somebody in the family with a disease process, waiting for something to happen and seeing that disease process getting worse and worse in front of their eyes, has a major impact on the health of others and stacks up problems for the future in the health service.

That is why, when I was on the All-Party Parliamentary Group on Cancer, I strongly supported John Baron in all his efforts to look at the one-year survival times in cancer. Looking at outcomes can be far more informative than looking simply at process targets, which is what we have been looking at too much to date rather than looking at the overall impact of disease.

[Baroness Thornton (Lab)]

My Lords, I will speak to Amendments 7 and 9 in my name. I thank the noble Lord, Lord Lansley, for introducing this debate and I look forward to supporting the noble Baroness, Lady Walmsley. I think we are about to see harmony breaking out between the four walls of the Chamber. The noble Lord, Lord Lansley, and I are I think in accord over these amendments.

Historically, the mandate is part of the attempted change—I think that is probably the right way to put it—to distance the role of government and Ministers from the sound of bedpans dropping, if I might put it like that. Unfortunately, as the noble Lord, Lord Lansley, said, despite the mandate’s intentions, recent Ministers have still tried to micromanage and otherwise interfere with NHS managers. During the passage of the 2012 Bill, the Government had to concede that the Secretary of State remained politically responsible to Parliament for the NHS.

I think it would be fair to say that laying the mandate before Parliament in each year, as was intended, has not brought about energetic debates and wise reflections in either House of Parliament. But the mandate is not without merit. It is good that the NHS knows what is expected of it and should be free from sudden announcements and other surprises. Without something of this nature, it is wholly unclear how accountability works. So we accept that, at least until the next reorganisation happens, there has to be a mandate, and the important thing is to get this right.

For that reason, we support the two amendments from the noble Lord, Lord Lansley. If anybody knows how the mandate ought to be used, it is definitely him. Trying to have clearly stated objectives in the outcomes framework, or some equivalent, and ensuring that the mandate is objective, evidence-based and publicly accountable must be correct.