Health and Care Bill

Baroness Thornton Excerpts

Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I would much prefer that the noble Baroness, Lady Cumberlege, should open on this group. I will speak to the question of whether Clause 40 should stand part when that has happened.

[Baroness Cumberlege (Con)]

My Lords, I will speak to Amendment 179 and the other amendments in my name. I thank the noble Lords who put their names to these amendments: the noble Lords, Lord Shipley, Lord Hunt of Kings Heath and Lord Patel. We are told that the driving force of the Bill is to ensure that health and care services are delivered at place; and to empower local leaders—leaders who know what their local communities’ needs are and who will make decisions about how care is delivered. I am sure that is music to the ears of my noble friend Lord Mawson.

We are told that the integrated care systems—the ICSs—will be given the flexibility to plan, to commission and to provide services according to the specific needs of their population. This principle is undermined by the unchecked power that the Bill gives the Secretary of State over local configuration of services. I am pleased to tell your Lordships—particularly my noble friend Lord Howe, who is on the Front Bench for this item—that Amendments 179 to 183 have the support of a number of influential voices. These are voices from the health and local government sectors, the NHS Confederation, the King’s Fund, NHS Providers, the LGA, the BMA, National Voices and the Centre for Governance and Scrutiny. These organisations cover NHS leaders, local authorities, clinicians and patients. It is significant that they are united in their deep concern about the powers that the Secretary of State would have over local reconfigurations as the Bill currently stands.

Of course, there is an existing system for local reconfiguration and it works very well. It is overseen by the Independent—that word is very important—Reconfiguration Panel, the IRP. This has helped take politics out of the difficult decisions surrounding services. Crucially, the current process for service reconfiguration starts with local consultation and consideration of clinical advice. These elements are fundamental, and they must be maintained in a future process. In short, the Secretary of State should be able to intervene in a decision about local services only once local people have had their say on the proposed changes, and once clinical advice has been considered. It will be to the detriment of patient safety if it has not. Under the existing arrangements, when the process takes too long, it has often not been about the IRP but about the Secretary of State’s failure to reach a decision, yet the Government state that the new powers are needed to speed up the process.

--- Later in debate ---

[Baroness Walmsley (LD)]

My Lords, I am in favour of surgical excision. I oppose the powers of the Secretary of State in Clause 40 and Schedule 6 to intervene in decisions on reconfiguration of health services. Far be it from me to want to protect Conservative Secretaries of State for Health from themselves, but I warn that if they use these powers they will eventually get the blame.

The noble Lord, Lord Stevens, gave a number of very good reasons why this clause should be deleted from the Bill. My reason is somewhat different. I think these powers are very dangerous. We have recently seen how the Government’s powers to provide or withdraw funding from a proposal, let us say, to build a new school or improve infrastructure in a particular constituency have got them into trouble. We have heard allegations made against Government Whips by Members of Parliament of actions which could be criminal offences of bribery. It is alleged that, in seeking to ensure support for their leader, they are threatening Members of Parliament that funding for their projects, which have already been declared to be in the public interest of their constituents, will be withdrawn unless they behave in a certain way, so political considerations would trump public interests.

Like the former Member of Parliament to whom the noble Lord, Lord Hunt, referred, all politicians know that the provision of a new hospital or clinic or, on the contrary, the closing of a healthcare setting are very sensitive considerations in elections. All parties ensure that the voters know their views on these matters at election time and in between elections. The Prime Minister knows this. Why else would he put such emphasis on his promise of 40 so-called new hospitals by 2030 if this were not the case? It makes a good headline, even if we know that some of them are not new and some of them are not hospitals.

The powers of reconfiguration sought by the Secretary of State in Clause 40 would give the Government the ability to change the decisions of those put in place locally and well qualified to make them in a non-partisan and needs-based way, thus allowing the Government to wield unwarranted political power. It is probable that this Government would not be able to resist doing so, for the wrong reasons, and it is incumbent on all parties to stop them by deleting Clause 40 from the Bill. Indeed, I do not think that I would be in favour of giving these powers to any Government of any political party; they are just too liable to be misused.

[Baroness Thornton (Lab)]

I think the Minister is probably getting the message by now. I shall speak to my Clause 40 stand part debate and the amendment in the name of my noble friend Lady Merron. Somebody said earlier that we can be sure that the proposals to allow greater powers for the Secretary of State to intervene in reconfigurations is not something that the NHS asked for. That is almost certainly true.

I congratulate the noble Baroness, Lady Cumberlege, on her great coalition- building; she is very good at building coalitions in support of the things that she cares about, and she has definitely managed to do that with this group of amendments.

Noble Lords have pointed out that, at the moment, we have a system which works. It may be slow, and it is absolutely true that it has processes which take too long, but there are elements of public and patient involvement through consultations. The changes made in 2012 under the noble Lord, Lord Lansley, brought in four tests and some rigour of external independent evaluation. The core of that process still exists. As a non-executive member of the board of the Whittington, I can say that this is exactly the kind of thing that we have been involved in in our own hospital.

The consultations might be improved, but they will not be improved at all by this proposal. In fact, I think that this clause is very odd indeed. It is a bad idea, and it adds nothing to the core of this Bill and its central aim, which is to grow place-based independent and innovative healthcare, and it probably needs to go.

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

I thank all noble Lords and noble Baronesses for their contributions. I would be pretty blind or deaf not to understand the level of concern across the Committee. However, if noble Lords will bear with me, I shall try to set out some justifications. I preface my remarks once again by saying that I strongly hear the views of the Committee, and I welcome the fact that previous Ministers and Secretaries of State are warning us not to fall victim to this, as it were.

I start by explaining some of the justifications. It may be helpful to start with some of the observations. The public expect Ministers to be accountable for the health service, which includes service change. We see the new intervention powers enabling the Secretary of State to act as a scrutineer and decision-maker for reconfigurations, to intervene when, for example, they can see a critical benefit or cost to taking one or other course of action, or to take action where there is a significant cause for public concern. Having said that, we accept that public concern could well be a political one, so we understand the concerns expressed by noble Lords.

We expect this power to be used infrequently and, when it is used, it will be done proportionately and transparently. All decisions made using the new reconfiguration call-in power in the Bill must be published, which will ensure transparency and proper scrutiny. The new call-in power for reconfigurations will allow the Secretary of State better to support effective change and respond to stakeholder concerns, including from the public health oversight and scrutiny committees and parliamentarians in a more timely way.

I turn to Amendment 183. Given the role of the Secretary of State, it is proportionate to ask him or her to ask local commissioners to consider service change where there is concern. Once again, we do not expect this power to be used frequently, and all service changes, regardless of whether a Secretary of State has been a catalyst, will still be required to go through due process and where appropriate local consultation. Before any proposal was agreed, the planning and assurance for a proposal would still have to include strong public and patient engagement, consistency with a current and prospective need for patient choice, a clear clinical evidence base and support from commissioners.

I turn to a couple of points from my noble friend Lady Cumberlege and the noble Lord, Lord Stevens, who said that the powers were unnecessary, undesirable and unworkable. To look at the necessity of the power, the current system can lead to referrals coming very late to the Secretary of State, and the power will allow the Secretary of State to intervene earlier to avoid that. For example, my noble friend Lady Cumberlege referred to the Kent and Medway stroke services reconfiguration proposal. One reason why it was lengthy was the need to review the right options for the system. We are hoping that it goes something like this—that you could either knock heads together or, as someone put it more starkly, have a sword of Damocles over them to come to a decision more quickly. But once again we understand the concerns.

I turn to Amendment 180. It is vital that all local views, including that of the health overview and scrutiny committees, are represented in the reconfiguration. The new power in the Bill will not replace the important local scrutiny and engagement that plays such an important role in service change decisions, and a duty for those locally responsible for service change proposals to consult local authorities will remain. It is right that for commissioners and providers who are responsible for planning, assuring and delivering reconfigurations the duty to consult HOSCs and other local stakeholders continues. We are also introducing a duty for NHS England, integrated care boards, NHS trusts and foundation trusts to provide information and other assistance required for the Secretary of State to carry out functions. That will allow the Secretary of State to take into account local views. We expect the Independent Reconfiguration Panel to consider the views and carry on the way it works.

On Amendment 181, we recognise the importance of timely decision-making—

[Baroness Thornton (Lab)]

Is the Minister saying that the Government and his department do not trust NHS England to fulfil this function any longer?

[Lord Kamall (Con)]

No, we are saying that, where there is an issue and it is taking a long time, this measure allows the Secretary of State to come in in a more timely manner rather than waiting for a late referral.

[Baroness Thornton (Lab)]

Does the Minister think that will save time?

[Lord Kamall (Con)]

Yes.

--- Later in debate ---

[Lord Stevens of Birmingham (CB)]

I shall briefly make two points. First, having looked at this quite carefully, it is good to see that there is nothing in the proposals for the payment scheme that would intrinsically give rise to the concerns just articulated. Secondly, in response to the noble Lord, Lord Lansley, there are very good answers that can be provided, even if not now, to the questions that he poses. One starting point would be to look at the judgment that the Court of Appeal handed down at the end of 2018, which essentially confirmed that what he said is correct. It is just about possible to torture the 2012 tariff system to make it fit for purpose, but an incredibly elaborate set of workarounds is required to do so, with an enormous amount of bureaucracy and that covers only about 60% of the fund flows in the National Health Service. Hence the desire for something more flexible, which this set of clauses enables the NHS to take forward.

[Baroness Thornton (Lab)]

My Lords, it is very gratifying that so many noble Lords have decided to come in to take part in a debate about NHS finances tonight; I am very grateful for that.

I shall speak briefly to Amendments 199, 200 and 202A in my name. Amendment 199 provides that the Secretary of State must set out rules for determining the price to be paid for NHS services. Amendment 200 ensures that the key policy documents covering NHS services are approved by the Secretary of State. Amendment 202A provides that the rules must be subject to parliamentary scrutiny.

I am very pleased that the complexity of NHS funding was not mentioned in great detail tonight, but there has been speculation about how funding may work and how the various financial responsibilities in and across ICSs may develop. What we think we know is that complex funding approaches, such as payment by results, will become less important. In Clause 70 and the associated Schedule 10, however, the Bill is wonderfully uninformative. It just says, “Out with the old”—the national tariff—“and in with the new”, the NHS payment scheme. I am again with the noble Lord, Lord Lansley, in saying that these questions need to be answered, because they will affect the regulations, procurement rules and so on.

The payment scheme—actually, I am not going to talk about the history of the NHS payment scheme at this time of night, but, unless the Minister can justify it and answer the questions posed by the noble Lord, Lord Lansley, this part of the Bill should be quietly dropped. We seem to have something that works, so why replace it with something that we do not know very much about?

[Lord Kamall (Con)]

I thank the noble Baroness and echo her gratitude to all the noble Lords who have turned up for this group of amendments.

Before I turn to specific amendments, it may be helpful to make a few general points about the new payment scheme and explain why this clause should stand part of the Bill. For many years, the national tariff improved access to services and drove up quality across the NHS. The new scheme will build on that success. NHS England will continue to make rules determining the price paid to a provider, by a commissioner, for healthcare services for the NHS, or for public health services commissioned on behalf of the Secretary of State. Also, expanding the powers to enable NHS England to set prices for public health services, such as maternity screening, will allow for seamless funding streams for different care episodes.

However, we need to update the NHS pricing systems to reflect the move towards a more integrated system focused on prevention, joint working and more care delivered in the community. This will support a move from a “payment by activity” approach, towards an approach that promotes integration and early intervention, while discouraging perverse incentives for patients to be treated in acute settings. It will allow flexibility over the current pricing scheme, and allow rules to set prices, formulas and factors that must be considered when determining the prices paid. I assure noble Lords that, when developing the scheme, NHS England will continue to consult any persons that it considers relevant, which will include ICBs, NHS trusts and foundation trusts, as well as trade unions and representative groups. I share the sentiments of the noble Lord, Lord Davies, about the valuable role that trade unions play in a free society.

I turn briefly to the points made by my noble friend Lord Lansley. On regional variation, the NHS payment scheme will encourage commissioners and providers within an integrated board area to work together to agree prices that are in line with the rules set out in the scheme. To date, only one provider has applied successfully for local modification, and closer working within ICBs should remove the need for disputes. On paying different providers differently, there may be scenarios where it is appropriate to pay non-NHS providers different prices from those paid to NHS providers, to take into account differences, different starting costs or a different range of services provided. There may also be cases where the financial regimes of different providers make it appropriate to set different prices or pricing rules. When setting any prices, NHS England will aim to ensure that prices paid represent a fair level of pay for the providers of those services, as well as fair pay between providers of similar services. We will not introduce competition on price rather than quality. We hope that these changes will increase the flexibility and reduce transactional bureaucracy at the ICP level.

I must disagree with the proposal in Amendment 199. While the Secretary of State will remain responsible for setting out overall funding for NHS England, NHS England, alongside Monitor, has set the rules successfully since 2013. I cannot see the benefit of this duty being transferred to the Secretary of State, beyond separating it further from those making operational decisions in the system. Following that logic, we must also reject Amendment 202A. However, I assure noble Lords that the payment scheme will be published in the usual way, and your Lordships will of course be able to table Questions, secure debates, hold us accountable and ensure that the mechanism is scrutinised.

I turn to Amendments 201B and 201C. As part of the broad consultation duties, we expect NHS England to work closely with trade unions and staff representative bodies, such as the Social Partnership Forum, NHS Providers, the Healthcare Financial Management Association and all the royal colleges, when developing the national tariff.

On Amendment 200, I assure your Lordships that the NHS payment scheme will be published by NHS England following consultation. The Secretary of State will also have the general power to require NHS England to share the NHS payment scheme before publication, not to publish a payment scheme without approval, and to share the contents of the scheme should that be necessary.

On Amendment 201A, in setting the rules for the payment scheme, NHS England will of course want commissioners to consider staff pay, pensions and terms and conditions. NHS England will continue to take account of cost growth arising from uplifts to Agenda for Change. New Section 114C makes it clear that, before publishing the payment scheme, NHS England must consult any person that it thinks appropriate. Again, in practice we expect this to include representative bodies and trade unions. NHS England must also provide an impact assessment of the proposed scheme.

I hope I can reassure noble Lords that the department and NHS England remain committed to Agenda for Change. Independent providers will remain free to develop and adopt the terms and conditions of employment, including pay, that best help them attract and keep the staff they need. However, we expect that good employers would set wage rates that reflected the skills of their staff.

On Amendment 202, it is right that the commissioners and providers of NHS services should be able to make representations and, if they feel it necessary, object to pricing mechanisms set by NHS England in the payment scheme. That is why we have retained the duties to consult commissioners and providers. We have also retained the ability for ICBs and providers to make representations and to formally object in response to consultations on the NHS payment scheme, as they can with the national tariff.

The current prescribed thresholds are set by the National Health Service (Licensing and Pricing) (Amendment) Regulations 2015, and the current objection thresholds since 2015 have been set at 66%. My department consulted on these thresholds in 2015 and it remains the Government’s view that they are proportionate, preventing the delay of future payment scheme publications and giving the NHS the certainty that it needs to plan for future financial years.

If I have not answered all the questions from my noble friend Lord Lansley and others, I ask noble Lords to remind me and I will write to them. This has been a very important discussion—as we can see by the attendance—and I hope I have given enough reassurance to noble Lords for them not to move their amendments and have explained why the clause should stand part of the Bill.