Health and Care Bill

Baroness Thornton Excerpts

Lords Hansard - Part 2 & Report stage
Thursday 3rd March 2022 Lords Chamber

[Lord Lansley (Con)]

My Lords, noble Lords will recall from Committee some substantial discussion about whether it was wise for the Secretary of State to take additional powers of direction in relation to NHS England. I suppose I should declare an interest since I gave the NHS commissioning board, or NHS England, the freedoms it currently enjoys. I am probably the person least likely to be persuaded that it is a very good idea to take all that away. After our debate in Committee, I thought it was probably sensible, rather than to seek to remove the powers of direction that the Secretary of State is given under Clause 39, to look at the exceptions to that power in new Section 13ZD and ask: are these all the exceptions that we should have?

On Amendment 83, the conclusion I reached was that there were at least two specific areas which are not mentioned in new Section 13ZD but should be; namely, limitations on the use of this power on the part of the Secretary of State. First, the local allocation of resources to integrated care boards—and the difficult decisions of trying to remedy the inequalities in access to healthcare services through the resource allocation process—is not something which any of us want the Secretary of State to interfere with; otherwise, it is sure to be regarded as being done for a political purpose, even if it might be done for another.

Secondly, there is the question of

“procurement of goods or services”.

After all the experience we have had over recent months, the last thing any of us wants is to go too far in the direction of the Secretary of State having a power in relation to procurement when that can perfectly well be given as a responsibility to NHS England. This is Amendment 83, and I hope that my noble friend, if he cannot accept the amendments, will give us some specific assurances in relation to the Secretary of State not using those powers.

In this group, I also put my name to Amendment 84, which would remove Clause 40—and, by extension, Schedule 6—from the Bill. This is about the Secretary of State coming in and acquiring more powers than was formerly the case. I was shadow Secretary of State for six years or so. During that time, I would have loved it if the then Secretary of State had all these powers to intervene in every reconfiguration, because I went around the country—as people are fond of reminding me—mobilising opposition to some of the ways in which the health service, led by the then Government, was trying to reconfigure services. This is not something that the Secretary of State or the current Government should wish for themselves or for their successors in office. I will not go back into all the arguments, but there are plenty of good examples of where, if the Secretary of State had this power, people would press the Secretary of State to use it—and it would be deeply unwise for a Secretary of State to get involved.

The justification on the part of the Government is that it stops this going on for ever. But there is a reason that these things go on for a long time—because they are intensely difficult, and the balances are very difficult to strike. Sometimes, the processes of consultation and public engagement take a long time. If the Government’s argument is that they are going leap in, intervene and settle it all quickly, both sides will yell when they do that. We can be absolutely certain of this. No one will be happy, and everyone will blame the Secretary of State. This is very firmly in the “be careful what you wish for” category. We would do the Government a great service by deleting Clause 40 from the Bill. If the noble Baroness, Lady Thornton, pursues that, I will certainly support her. I beg to move Amendment 83.

[Baroness Thornton (Lab)]

With the leave of the House, I thought it might be useful if I used my slot to speak right now on leaving out Clause 40. First, I thank the noble Lords, Lord Patel and Lord Lansley, and the noble Baroness, Lady Walmsley, for putting their names to this amendment. The noble Lord, Lord Patel—with whom I spoke this morning, and who is definitely on the mend, so I hope we will see him next week—said how strongly he supports the amendment. I will speak very briefly because we have already said much of what needs to be said about saving the Secretary of State from himself—as the noble Lord, Lord Lansley, said, I think. This is what this amendment is about.

Clearly, this is not what the NHS asked for in the Bill. It did not ask for this power. It has been added to the Bill—by a previous Secretary of State, I suspect—and I hear rumours that even the current Secretary of State is not a great fan. Why would any Secretary of State want to have this power—to be lobbied and drawn into any minor local dispute, particularly as we head towards a general election?

I have a small anecdote. A small coastal town had a small hospital with an accident and emergency department. It could not be properly staffed, it regularly closed for random periods, and far too often patients arrived there only to be moved to the larger A&E 20 miles down the road. Proposals were made to close it—and of course, outrage ensued. “Save our A&E”, people said, even though it was unsafe. Local politics were poisonous, and the blame for the closure was thrown on opponents, whichever side they were on.

However, over time, good communications, clinical leadership and, eventually, bringing local people into the team, got the proposal moving. People understood what was needed and why, and the reconfiguration process went through its stages, with external reviews and analysis by the national clinical advisory team, which all gave reassurance. The clincher came when a distinguished clinician leading the review told a meeting that he would personally go and paint over the road signs for the A&E, because it was so unsuitable. It shut, which probably means that lives were saved.

The process of rational argument and proper analysis works, and on this occasion we should not just leave it to local politics to decide what reconfiguration means. The Secretary of State has enough powers to direct the whole NHS in its fullness, but should not be involved in what may be very small reconfigurations indeed. We agree, and many people in the NHS and its organisations agree, that this clause should be removed from the Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have no doubt that when the Minister responds he will say that the Secretary of State is likely to use this power very rarely. The point is that the moment the health service knows the Secretary of State has such a power, that will immediately influence its behaviour in relation to any improvements or major changes of services likely to lead to opposition from the local Member of Parliament. I think that the Minister is responsible for innovation in the health service, and this will put the kibosh on innovation and service changes.

Written on my heart is Kidderminster General Hospital. The Minister may not recall this, because it is a long time ago now, but Worcestershire Health Authority made proposals to reconfigure A&E services and close Kidderminster General Hospital. The then Member of Parliament, David Lock, who was a loyal member of the Government, bravely defended that decision. He lost his seat in 2001, and it has been written on the hearts of many MPs since then that they do not defend that type of change, because they might lose their seats.

I cannot believe that the Government wish to give the Secretary of State the nightmare of that kind of lobbying—I am trying to tempt the noble and learned Lord, Lord Clarke, to intervene here, because he knows what MPs do. What we have at the moment is a very good system, at arm’s length, and it beats me why on earth the Government want to do this. We need to do the business and get rid of the clause. I suspect that we shall not see it back again.

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

I thank noble Lords for bringing this debate to the House today. I am sure that the Secretary of State will be grateful for the desire to save him from himself and his powers. Let me read out the following quote:

“If we went out to Parliament Square now and straw-polled people walking by, asking them who they thought was responsible for the NHS in England at a national level, I think we would wait a very long time before anyone gave any answer other than the Government and, by extension, the Secretary of State”.—[Official Report, Commons, Health and Care Bill Committee, 21/9/21; col. 393.]


These are not my words, but those of the Opposition spokesman during Committee in the other place.

One of the core pillars of the Bill is to ensure appropriate accountability for the NHS. This is of the utmost importance as we invest further in local service decision-making and delivery. It is critical that, in line with the aims of the Bill to empower local systems, the Secretary of State has the appropriate levers to meet the public expectation for ministerial accountability.

There has been some confusion about what the powers in the Bill will do, and if noble Lords will allow me, I will spend a moment on this to add clarity. Clause 39 will simply allow the Secretary of State to direct NHS England—and only NHS England—on matters where it already has functions. This is not a power over local bodies. Clause 40 and Schedule 6 will allow the Secretary of State to call in and decide on reconfiguration decisions. They do not remove any of the existing safeguards, including the requirement to consult or the role of the Independent Reconfigurations Panel in providing advice to the Secretary of State.

I understand the arguments put forward in Amendment 83, and I will take procurement first. We agree that it is inappropriate for the Secretary of State to be involved in individual procurement decisions. That is not the motive behind this power, and it is not the way it would be used. The regulation-making power inserted by Clause 70 prevents the Secretary of State being able to use this direction-making power to direct NHS England—

[Baroness Thornton (Lab)]

The Minister said that this was not the motive behind the power, but motive is not the point here. I am sure that the Secretary of State has the best of motives, as does the Minister, but the point is the effect of what the Bill says.

[Lord Kamall (Con)]

I thank the noble Baroness for clarifying that. Of course, we completely understand the concerns that have been raised. The Secretary of State must use regulation-making powers where they exist, rather than using the power of direction to achieve what could be achieved under regulations.

Turning to the allocation of resources to the ICBs, the Government have no ambition to use this power to interfere with individual allocations of money to the system. It will not be used to interfere with the independent Advisory Committee on Resource Allocation. NHS England will continue to make funding allocations to ICBs to support them to deliver functions via the target formula, in order to reduce inequalities between patients. We have attached safeguards to this power to make sure it is not misused. Any exercise of this power must be done transparently: it must be made in writing, be published and be made in the public interest. This will enable Parliament to challenge Ministers and hold them to account.

Turning to Amendment 84, Clause 40 and Schedule 6 will allow the Secretary of State to better support effective change and respond to stakeholder concerns, including views from the public, health oversight and scrutiny committees and parliamentarians, in a more timely way. The clause and schedule will ensure that key decisions made about how services are delivered are subject to democratic oversight.

It is a misapprehension that the Secretary of State currently has no role in the decision-making process for reconfigurations. He does and without these provisions that role will continue. However, currently, referrals usually come at a very late stage in the process, which represents neither good value for the taxpayer nor good outcomes for patients.

I understand the concerns from noble Lords, including former Ministers, about how these powers might be used. But I have been asked to make clear that we expect the vast majority of reconfiguration decisions to continue to be managed by the local system—

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am implacably opposed to privatisation of the NHS—not for ideological reasons, although the Green Party is strongly opposed as well. I think it is inefficient. Privatisation has not worked. It has failed to deliver on promises to increase quality, decrease cost and help patients. Rather than save money through reduced bureaucracy, the main cost savings of privatisation seem to be in cutting the terms and conditions—chiefly the pay and pensions—of staff. If private companies can compete for public services, let them compete on a level playing field, rather than simply capturing staff and paying them less.

I am pleased that the noble Lord, Lord Lansley, explained his Amendment 98 because I had understood it completely the other way around—that he was protecting private services. I was going to have a word with him afterwards about it, but there is now no need.

As the noble Lord, Lord Hendy, just said, most people in Britain do not want a privatised NHS. They want a public service because that is what will give them the best results.

[Baroness Thornton (Lab)]

My Lords, this group contains a number of helpful amendments. I welcome the amendments that the Government have tabled in response to the many and varied discussions we have had. I am grateful for this positive and constructive approach, which proposes transparency at the heart of procurement.

We have discussed with the Government at some length why the NHS has to have its own bespoke procurement regime, which the Bill paves the way for. We have seen two consultation documents about the scope, scale and nature of this bespoke regime. Although they seem quite sensible, we have been assured that the Government feel that the regulations will be based on a sound foundation.

The noble Lord, Lord Warner, is quite right about patients not knowing their right to choose. It is a hole in the provision. The right to choose is very important. People absolutely do not know that they have it.

While not being explicit, the new providers’ selection regime will actually get us to where Labour tried to get in 2010 with the NHS as the preferred provider, at least as far as the many complex and expensive services provided by NHS trusts, FTs and other core patient-facing services are concerned. Therefore, the principle is fine. The problem is that it does not extend across everything that the NHS procures, and that is partly the nub of what my noble friend said in his amendments, which I will return to in a moment.

Our view is that in any circumstances where competitive procurement is to be used, the national rules apply, so why does the NHS need a bespoke system for all non-clinical stuff? We have never actually had an answer to that, except that the NHS comes up with wider regulations, and we feel that that it is a waste of time and effort. However, we have had ample assurances from the Government that the NHS bespoke regime will be properly documented and all the rules set out, with some route to enforcement and challenge. We are assured that there will be no award of contract without applying the process that is set out—no back doors and no flexibility when contracting with private companies. With those assurances in mind and the knowledge that campaigners and trade unions will be vigilant and might even stump up for judicial review, and because of the ICB amendments agreed earlier in the week, we will get more or less what we wanted and we will not try to remove Clause 70 from the Bill.

I turn to the remarks of my noble friend Lord Hendy, who has our sympathy and approval. Had we been discussing this at a different time of day, we may have sought to support some of his amendments, and certainly the spirit of them. He has posed a legitimate question to the Minister: why do the Government not insist on good employment of staff as a criterion for their procurement regime?

We on this side of the House remain opposed to the outsourcing of NHS-funded services such as cleaning, catering and many others because we can see that it has led to staff being transferred into the private sector, corners being cut and standards dropping. It has been a symptom of chronic underfunding and it is a terrible long-term strategy. It has of course been completely counterproductive because it has sometimes meant that our hospitals have not necessarily been cleaned, serviced or looked after as we might have wished them to be. We have tried at various stages to introduce safeguards and to outlaw altogether the NHS’s tax-dodging habit of setting up SubCos, but those are probably matters for another day.

I would say to my noble friend that I am not sure that changing the procurement regime is the best way forward for this issue, although he has our support in the politics and context in which he introduced his amendments.

[Earl Howe (Con)]

My Lords, before addressing the amendments in the name of my noble friend Lord Lansley and the noble Lords, Lord Hendy and Lord Warner, it may be helpful if I speak to the six government amendments in this group: Amendments 101 to 104, 106 and 107. The first five of these amendments would amend Clause 70, which inserts a new regulation-making power in relation to the procurement of healthcare services, Section 12ZB, into the NHS Act 2006. They amend the clause so that regulations, when they are made under this power, will have to include provision for procurement processes and objectives, for steps to be taken when competitively tendering and for transparency, fairness, verifying compliance and the management of conflicts of interest. Amendment 106 also requires NHS England to issue guidance on the regulations.