Health and Care Bill

Earl Howe Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 18th January 2022 Lords Chamber

Debate on Amendment 25 resumed.

[Earl Howe (Con)]

My Lords, the group of amendments to which noble Lords spoke before the break deals in various ways with the appointments processes for integrated care boards. I will deal first with Amendment 32 in the name of the noble Lord, Lord Hunt of Kings Heath, which is designed to ensure that the chair of an integrated care board can be removed only by the integrated care board and not by NHS England. This is a worthwhile issue for debate, and while I recognise the spirit in which the amendment is offered, the noble Lord, Lord Hunt, and I are coming at this from rather different perspectives.

It is worth reminding ourselves that ICBs are accountable to NHS England and thereby to Ministers and ultimately to Parliament. That link is fundamental, given the amounts of public money involved. It is therefore right that the appointments and removals process should involve these bodies. In contrast, the noble Lord’s amendment would effectively break that accountability link, because under this amendment, neither NHS England nor the Secretary of State would be able to remove a chair who was acting inappropriately. We cannot have that.

I understand the concern that there should be a safe and robust process for the appointment and removal of the chair of an ICB. I can assure noble Lords that there will be. The chairs of ICBs will be public appointments and therefore managed in line with the Governance Code on Public Appointments and regulated by the Commissioner for Public Appointments. I regret that the Government cannot support this amendment, but I hope I have explained sufficiently why.

Amendment 33 would ensure that the chief executive is appointed by the integrated care board rather than the chair and not subject to the approval of NHS England. I am afraid that, once again, this amendment is not one we can accept. As your Lordships are aware, the chief executive is the accountable officer for the ICB and a crucial person for ensuring that the board is operating effectively. It is therefore right that the appointment should be ultimately made by the chair and approved by NHS England. This approach ensures that we bring together local knowledge and a commitment to ensuring the board is appropriately constituted, while also ensuring that golden thread of accountability from ICBs to NHS England and then ultimately to Parliament. Making the ICB the sole appointing body would break that chain of accountability.

I also remind the Committee that in order to ensure that ICBs can be established and formed in time, NHS England has carried out a selection process for intended designate chief executives which, subject to the passage of the Bill and commencement of the relevant appointment provisions, it expects to be appointed by the chairs of ICBs. All provisional ICB chief executive designates have been agreed by the NHS England appointments and approvals committee, and all candidates were subject to a fair and open recruitment process.

While the current process for appointing designate ICB chairs has primarily been managed and agreed by the NHS England appointments and approvals committee, chiefly in the interests of ensuring that ICBs will be ready to begin work, I reassure your Lordships that we would expect future appointments of chief executives to involve significant engagement from the ICB as a whole to ensure that all chief executives command the confidence of both the ICB and NHS England.

I would also like to address two other significant points the noble Lord raised in his speech: first, the question of conflicts of interest. I can assure the noble Lord that ICBs will have robust duties in relation to conflicts of interest and will be required to maintain and publish a register of members’ interests and make arrangements for the management of conflicts or potential conflicts of interest. Furthermore, part of the purpose of the chair’s veto is to ensure that candidates for the board who are unsuitable or have unreconcilable conflicts of interest are not appointed to the board.

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[Baroness Thornton (Lab)]

The appointments commission worked extremely well for many years. Why is it not good enough now?

[Earl Howe (Con)]

As I understand it, the noble Lord, Lord Hunt, is proposing a separate NHS appointments commission. I am suggesting that it would be unnecessary to add that arms-length body to the existing landscape.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the Minister for his response, which he has clearly put a great deal of thought into. At the end of the day, what is being proposed is a very top-down, hierarchical approach to running the health service. ICBs may be accountable to NHS England and, through NHS England, to the Secretary of State, because the Government are taking power of direction through this legislation. However, it becomes abundantly clear that ICBs do not look outward to their local communities; they look upward to the hierarchies above them.

This is the problem with giving NHS England such power over the chief executive and the chair. Anyone who has worked in the NHS knows that, in the target-laden, panic-ridden approach from the centre to local management, the ICBs will be under the cosh right from the start. For all the wonderful words that have been used about what they will do, the reality is that they will be beaten up by the centre in the traditional “target” approach to running the service. Of course, it did not have to be this way. While it is perfectly proper to have boards making their own decisions and appointments, and being held to account for interventions where necessary, this is such a top-down approach that I do not think it will work. I believe and hope that the House will seek to amend it in some of the ways suggested in these amendments. That said, I beg leave to withdraw my amendment.

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[Baroness Thornton (Lab)]

I thought noble Lords would have more to say about digital matters. I shall respond to this group very briefly, because my noble friend Lord Hunt, the noble Lord, Lord Clement-Jones, and others have very adequately covered the issues: the potential for digital transformation, the need to use patient data, the need for resources and, as the noble Lord, Lord Bethell, just said, enthusiasm and leadership.

The noble Baroness, Lady Cumberlege, as she always does, brought us practical applications of the reasons why the amendments are necessary, and it brought to my mind that my digital interface with the NHS is a good example of someone who is absolutely at the coalface. I am part of UCLH’s digital patient management system. It does not talk to my GP and it does not talk to the Royal Free, which is where one has one’s tests in the part of London I live in, and I think, “For goodness’ sake, we really ought to be able to do better than this”.

[Earl Howe (Con)]

My Lords, I am very grateful to the noble Lords, Lord Hunt of Kings Heath and Lord Clement-Jones, the noble Baroness, Lady Thornton, and my noble friend Lady Cumberlege for bringing these amendments for debate before the Committee today.

Once again, we are dealing here with an important set of issues. First, Amendments 26 and 35 would ensure that integrated care boards appointed a director of digital transformation. The Government fully agree with the spirit behind the amendments, ensuring a strong local focus on digital transformation. However, looking at the pros and cons, we must balance the desire to go further—which we all want—with the important principle that I have articulated before: that the provisions in the Bill should not be too prescriptive when it comes to membership requirements. As we have discussed, it is an essential principle of the Bill that there must be local flexibility to design the board in a way most suitable to each area’s unique needs.

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[Lord Mackay of Clashfern (Con)]

My Lords, the Minister is much in agreement with others that the leadership being enthusiastic for progress is important. I understand that nominations have already been made for the various positions that are likely to come up. To what extent has enthusiasm for digital transformation been a criterion in nominating those people? It is vital that the leader really believes in what is to happen if it is to happen at all. Therefore, it would be useful to know to what extent that consideration has applied in the prospective nominations of people for the local positions.

[Earl Howe (Con)]

Noble Lords will remember that, even 10 years ago, when I was appointed as a Health Minister, there was an acronym, QIPP, which stood for “quality, innovation, productivity and prevention”. While I think the acronym has largely fallen out of use, those four principles remain alive and kicking in the strategic thinking that happens at the top of the health service, and indeed in the department.

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[Baroness Thornton (Lab)]

I thank noble Lords for what has been a very interesting and important debate. I thank the noble Lord, Lord Mawson, for his amendment, and I look forward to further development of the thought process that he has put before the Committee. Of course, it is not new. I started my working life working for Michael Young, the great sociologist in Bethnal Green, and we talked about ethnographic research in our neighbourhoods and places. It was about giving people who lived in those places power and developing their own leadership of what they wanted to happen. Of course, in those days, when he started doing his work, it was about regenerating inner London—the bomb-strewn East End. I had the great privilege of running the Young Foundation: a few years ago, I took a couple of years off from this job here to go and run it, and we were doing exactly the place-based work that the noble Lord, Lord Mawson, talked about.

The noble Baroness, Lady Harding, is completely right: there are many Bromley by Bow-type programmes across the country—and thank goodness for that. If the Minister decides to go on trips to places, Bromley by Bow is of course important. I went there when it started out, when I was the founding chair of Social Enterprise UK, and the noble Lord, Lord Lansley, is quite right: it is brilliant, it is wonderful, it does great work —but why has it not been replicated? That is a question I have discussed with the noble Lord, Lord Mawson, on and off over many years. But there are many other types, and I suggest that the Minister might go to Manchester, Bradford or Nottingham, where there are some brilliant programmes where this place-based delivery of healthcare and other care is thriving.

The consensus breaking out between myself and the noble Lord, Lord Lansley, is of course that this Bill is an opportunity: how and where in the Bill can that place-based initiative be expressed? Where is it and how can it be encouraged? The King’s Fund did a piece of work developing place-based partnerships as part of the process leading up to the Bill, which was published last year. It has some interesting and useful things which express the sorts of sentiments—but in NHS-speak—that the noble Lord, Lord Mawson, talked about today: the importance of connecting communities, jointly planning and co-ordinating services, making the best of financial resources, supporting the local workforce, and driving improvements through local oversight and quality provision. There are certain elements of this which need to be there and need somehow to be built into the Bill, possibly in enabling form, because they mean building multiagency partnerships which involve local government, NHS organisations, voluntary service organisations, social enterprises and the communities themselves.

The noble Lord, Lord Mawson, rightly asks in his amendment for one voting ICB board member to be nominated by place-based partnerships. That may or may not be a good way forward, but we are trying to do systems change and, whether or not putting one person on a board is the way to do that, it is a very good place to start. So we on these Benches are very interested in how this develops and want to be part of the discussions across the House about how we do that.

[Earl Howe (Con)]

My Lords, no one is better placed, whether inside or outside your Lordships’ House, to advocate place-based partnerships than the noble Lord, Lord Mawson. I know he will remember that one of my first visits as a Health Minister in 2010, at his invitation, was to Bromley by Bow. What I learned that day made a deep impression on me, so I, like many noble Lords, need no convincing of the case that he and other speakers have made today.

I am aware that the noble Lord, Lord Hunt of Kings Heath, has tabled Amendment 165 on place-based arrangements, to be debated by this Committee later in our proceedings, so no doubt we will cover the issues in more detail then. For now, I say that the Government absolutely agree with the importance of having strong place-based elements in ICBs. Place-based structures will play an important role in delivering healthcare services for their population groups and we expect there to be open and clear lines of communication between the board of the ICB and place-based structures.

How is a sense of place given—as it were—tangible substance and meaning? I would argue that we do not necessarily need the Bill to articulate the reality. At a very basic level, an ICB will cover a geographic area. We would expect ICBs to be closely linked to their places via bodies such as health and well-being boards, where they will sit as the successor bodies to CCGs, and local authorities. ICBs will sit on the integrated care partnership as well as the health and well-being boards. Both bodies are vital in bringing together health, social care, public health and, potentially, wider views as well. That will be part and parcel of delivering their duty to involve patients, carers and the public when discharging their functions.

We expect ICBs to have place-based structures in place, but we do not want to prescribe what those structures are. As the noble Lord, Lord Mawson, said himself, we do not want ICBs to think that place-based partnerships are achievable via a central blueprint, or that a set of instructions from above is likely to be a substitute for learning by doing and local relationships. What we shall insist on is that an ICB sets out the arrangements for the exercise of its functions clearly in its constitution. Different areas have different needs, and I hope it is a point of agreement across the Committee that a one-size-fits-all model would not be appropriate.

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[Baroness Wheeler (Lab)]

My Lords, I strongly support my noble friend Lord Hunt and other noble Lords in their quest in this suite of amendments to underline the important and crucial role played by Healthwatch, particularly at local level, and to ensure that the new NHS structures and processes in the Bill fully recognise this.

Under the 2012 Bill, the noble Lord and others who have put their names to the amendment and who have spoken in today’s debate were all strong advocates of Healthwatch, and clearly remain so today. The concerns deeply expressed then of the Government’s decision to make national Healthwatch a sub-committee of the CQC, and not the independent organisation that it needed to be, have again come to the fore. Amendment 220 would add a new clause after Clause 80, seeking to establish Healthwatch England as a body corporate that provides an annual report of its activities to Parliament; it has the full support of these Benches. As the noble Lord, Lord Patel, has strongly emphasised, failing to provide for the independence of Healthwatch was a fundamental error that needs to be put right. He set out a particularly strong case, as have other noble Lords this time around.

Amendment 42 to Schedule 2 seeks to ensure that Healthwatch is a non-voting member of the ICB, so that there can be a genuine championing of patients’ voices and views, which many noble Lords have spoken so strongly about today. These are views fed back from evidence and surveys conducted by both national and local Healthwatch organisations. At the very least, it is crucial to seek to ensure—as set out in Amendment 103 to Clause 20—that the ICB is obliged to fully consider Healthwatch reports and that that body leads any local consultations proposed in the ICB forward plans.

Amendment 149 to Clause 21, seeking to ensure that ICPs have a Healthwatch nominee in membership, is also important, given the local Healthwatch links to both the NHS and local authority bodies, patients and clients.

Key questions on how Healthwatch, both at national and system level, is to be funded were raised by my noble friends Lord Hunt and Lord Harris, particularly about the whole process of allocating funds. This is important in view of the increased role of Healthwatch in the additional 42 ICSs. I look forward to the Minister’s response.

Finally, I also endorse noble Lords’ comments on the excellence of the reports produced by national and local Healthwatch organisations. Their guidance on access to social care, mentioned by several noble Lords, and comments on the detailed proposals later in the Bill on the care cap and the recent White Paper, are clear and accessible to service users, and closely examine the impact for them, and for the thousands of people currently waiting for assessment and access to key services. However, those are issues for another day. I hope that the Minister has listened to the debate.

[Earl Howe (Con)]

My Lords, these amendments deal, in their several ways, with the role of Healthwatch both locally and nationally. I begin with Amendment 42, in the names of the noble Lords, Lord Hunt of Kings Heath and Lord Patel, and the noble Baroness, Lady Thornton. This amendment would require ICBs to make provision in their constitutions for a non-voting member to be appointed from local Healthwatch branches.

I lay great importance, as do other noble Lords, on Healthwatch’s work on patient advocacy. However, as I said in relation to other amendments on the membership of ICBs—I know this is turning into something of a mantra—we want to avoid the Bill’s provisions being too prescriptive. It is essential that we provide local leaders the flexibility to design the board in a way that best suits each area’s unique needs. Even a non-voting member risks making the boards less nimble, undermining their ability to make important decisions efficiently. As I am sure the Committee is already aware, the ICB can appoint more members, including a Healthwatch representative, if it wishes, and I am sure many of them will. What is key is that local boards should be able to decide for themselves to appoint individuals with the necessary expertise to address local needs, and we want to allow them as much scope as possible to do so by not prescribing who all those members should be.

That said, I recognise that the growing complexity of health and care demands that we listen to the voice of patients, carers and the public. We want to ensure that they are heard throughout the system. I contend that there is adequate provision in the Bill to ensure that patients and the public are appropriately consulted and involved in decisions made by the ICB. I draw noble Lords’ attention to new Section 14Z36, regarding the duty to promote the involvement of each patient, and new Section 14Z44, regarding public involvement and consultation by ICBs.

I listened carefully to the noble Lord, Lord Harris of Haringey, as I always do, about the particular need for adequate and appropriate funding of local Healthwatch. If I may, I shall take away the points he made on that issue and others and write to him about them. We would expect Healthwatch to be closely involved with ICBs in carrying out their engagement and involvement duties. On what do we base that expectation? Many systems already have some system-level arrangements in place with Healthwatch. Indeed, NHS England has published guidance, which would apply to ICBs, on working with people and communities that encourages working closely with Healthwatch. Therefore, given that ICBs will already be required to engage patients closely in their decision-making process, and that we expect Healthwatch will be closely involved in that, we consider it unnecessary to require in legislation a member drawn from Healthwatch.

Amendment 103 would alter ICBs’ duties in relation to public involvement to require them to make adequate arrangements for the receipt and consideration of any relevant Healthwatch reports. As I said, the existing ICBs’ duties in relation to patient involvement are already comprehensive, and the amendment could unintentionally limit ICBs’ ability to form relationships with Healthwatch and other organisations appropriate for their area. As was the case for CCGs, ICBs will be required to make arrangements to involve patients in the planning of commissioning arrangements in areas that may impact the manner in which services are delivered, or the range of services available. This will ensure that patients receive appropriate representation where decisions are being made that could affect them.

I previously mentioned that NHS England, in its guidance to ICBs, has encouraged close working with Healthwatch. This guidance comes with the acknowledgement that what an appropriate relationship with Healthwatch looks like will vary from system to system. For this reason, we are seeking to establish comprehensive duties and requirements in the legislation while leaving the specifics of local relationships with organisations such as Healthwatch for ICBs to determine for themselves.

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[Earl Howe (Con)]

My Lords, I too am grateful to the noble Baroness, Lady Bennett of Manor Castle, for bringing forward this group of amendments. As many of the Committee will remember vividly, and as the noble Baroness, Lady Wheeler, has reminded us, accountability for the health service was a topic of considerable debate at the time of the Health and Social Care Act 2012 as it went through Parliament. The constitutional position of the Secretary of State was closely scrutinised and the current wording in the Act is very much the product of those discussions. I remind the Committee especially of the hard work done by the noble Baroness, Lady Jay of Paddington, who was at that time chair of the Constitution Committee, her colleagues on the committee and many others, including my noble and learned friend Lord Mackay of Clashfern, who did so much to develop the current wording of the clause. The coalition Government accepted the Constitution Committee’s recommendations in full.

I am afraid that I do not agree with the noble Baroness’s characterisation of the reasons why it was thought appropriate to modify the wording that described the Secretary of State’s responsibility for the health service. As noble Lords will be aware, the idea that the Secretary of State himself provides services has not for many years reflected the real world. As the noble Baroness, Lady Wheeler, rightly said, and as the Committee will remember, it was decided in 2012 that it was better that the law reflected the reality of the modern NHS rather than retaining outdated language. I do not think that the last 10 years have proved that proposition wrong. The current legislative framework allows some of the health services in England to be provided by entities, such as NHS foundation trusts, that are legally distinct from the Secretary of State. That will continue to be the case and should be recognised in the law.

I understand the concerns that Ministers might somehow avoid being responsible for ensuring the continuation of a comprehensive health service. However, there have been many vigorous debates in Parliament about the NHS in the years since those changes in 2012, and they have demonstrated that there has, quite rightly, been no loss in the strong sense of governmental accountability for the NHS felt by both government and Parliament. Indeed, the House amended the Act in 2012 to put beyond doubt that:

“The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England.”


That has not changed in this Bill; the wording will remain set in statute.

I would gently caution against recreating the fiction that the Secretary of State provides services directly. It is much better to be clear that the role of the Secretary of State is to set strategic direction, oversee and hold to account NHS England and the other national bodies of the NHS and, occasionally, to intervene—as the noble Lord is doing.

[Lord Hunt of Kings Heath (Lab)]

I thank the noble Earl for giving way. Given what he has said—and I know that we will debate this later—I point out that it is curious that the Government wish to take on a power of direction over NHS England, if that is so. I guarantee that that power will never be used because the Secretary of State’s power of direction never has to be used. Once this is passed, that changes the relationship; NHS England will know that the Secretary of State has that power of direction. Although I have tabled some amendments to try to modify it, I have no objections to the general principle, since I do not think that a quango such as NHS England should be freely floating. But we need to recognise that it is a fundamental change in the relationship to impose that power of direction again.

[Earl Howe (Con)]

My Lords, as I was about to say, the 2012 Act does provide for the ability of the Secretary of State to intervene when that is necessary for the smooth and effective running of the system. Furthermore, we should not exaggerate the extent to which this Bill modifies the 2012 provisions. As the noble Lord said, we will debate the powers of direction on a future occasion but, when we come to do so, my colleagues and I on the Government Benches will contend that the powers of direction, such as they are, are very narrow and specific in their scope. They have been deliberately framed in that way to reflect experience over recent years. I would not be in favour of reopening this piece of drafting, given its history and the effort that noble Lords from all sides of the House made to build an effective consensus in respect of the 2012 Act.

The noble Baroness, Lady Brinton, asked about dental access. The department is working closely with NHS England to increase levels of service as quickly as possible. Practices are continuing to prioritise patients based on clinical need. Dental practices are now being asked by NHS England and NHS Improvement to deliver at least 85% of contracted units of dental activity—UDAs—between January and March 2022 to provide improved access for patients. These updated figures are based on what many practices have been able to deliver to date. They take into account adherence to the latest infection prevention and control guidance. I hope that this is helpful to the noble Baroness.

I hope also that I have explained to the noble Baroness, Lady Bennett, why I cannot entertain her amendments, but also that I have reassured her that the accountability chain between health services, Ministers and Parliament, which lies at the centre of her concerns, remains intact.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I thank the Minister for his response and thank all noble Lords who have taken part in this debate. I particularly thank the noble Baroness, Lady Brinton, for her support. She stressed how this is very much about restoring a public health system with full public accountability.

I was a little surprised, not so much by the direction as by the emphatic nature of the comments from the noble Baroness, Lady Wheeler, given that it was members of her party who moved the amendments in the other place. To address the Minister’s comments—this also picks up the point raised by the noble Lord, Lord Hunt—we are talking about a significant change in relation to power of direction; a power that we will be discussing further, at great length, and about which we have seen considerable expressions of concern. I come back to the way I framed my speech: if you have more powers, you have more responsibility. If you say, “We covered all this in the 2012 Act—it’s all fine”, once could argue that the 2012 Act did not work out fine, but we are in a new situation, creating very new structures.

Thinking about the success or otherwise of accountability, some issues where we have failed in terms of accountability—and we will see amendments on these later—are workforce planning and, as the noble Baroness, Lady Brinton, highlighted, dental provision.

This is about ensuring that people have faith, know who to look to and cannot be fobbed off, as the noble Baroness, Lady Brinton, said, by this terrible, complex diversity of funding and arrangement structures. Like other Members of your Lordships’ House, I took part in the public debate in 2012, not in this place but in the public domain, and I have given many speeches on this issue. The complexity must not be allowed to cover over the fact that what people want to know is that the healthcare is there when they need it, and if it is not that they know who to point to.

I will of course withdraw the amendment at this point, but I reserve the right to consider this and come back to it at a future point.