Health and Care Bill

Edward Argar Excerpts

2nd reading
Wednesday 14th July 2021 Commons Chamber

[The Minister for Health (Edward Argar)]

Before winding up this important debate, I would like to put on the record, as I always do and as I know the shadow Minister does, our gratitude to all the staff in the NHS, social care and local government, and other key workers, for everything they have done in recent months. This Bill is evolution, not revolution. It supports improvements already under way in our NHS and it builds on the recommendations of the NHS’s own long-term plan, laying the foundations for our recovery from this pandemic. This Bill is backed by not only the NHS, but so many others working across health and care. A joint statement from the NHS Confederation, NHS Providers and the Local Government Association reads:

“we believe that the direction of travel set by the bill is the right one.”

It notes that working in partnership at a local level is “the only way” we can address the challenges of our time. The chief executive of Age UK has said that ICSs are to be embraced and made as effective and inclusive as they can be, and the King’s Fund is calling for us to press ahead. The list goes on; the NHS wants us to press ahead, and in the words of Lord Stevens, “The overwhelming majority of these proposals are changes the health service have asked for.” So it is vital that we in this House do right by them and by patients at this critical juncture. It is the right time for this Bill. We legislate, Opposition Members obfuscate. I remind the shadow Secretary of State of his 2017 manifesto, which stated:

“We will reinstate the powers of the Secretary of State for Health to have overall responsibility for the NHS.”

With this Bill, we put increased accountability for the Secretary of State at the heart of this, yet now the shadow Secretary of State no longer seems to agree with himself and characterises his own proposals as “meddling”. I know that he is dextrous in his politics and in his policy position, which is probably why he has survived under multiple Leaders of the Opposition, but this is stretching it a bit.

We have sought, in getting to this point, to work on a collaborative basis at every stage, and hon. Members can be reassured that we will continue to adopt that approach in the weeks ahead as we proceed with this Bill, when we hope it goes into Committee. My right hon. Friend the Secretary of State set out in his opening remarks his willingness to listen. In particular, he highlighted that in the case of ICS boundaries no decision has yet been made. As he set out, we are determined to embrace innovative potential wherever we find it. That is quite different from many of the accusations we have heard here today. I know it is tempting for some—even when they know better, and they do—to claim that it is the beginning of the end for public provision. It is not and they know it. They know it is scaremongering rather than reality. They know that there has always been an element of private provision in healthcare services in this country, and they should know that because, as the Nuffield Trust said in 2019:

“The…evidence suggests the increase”

in private provision

“originally began under Labour governments before 2010”.

The shadow Secretary of State should certainly know that because he was a special adviser in the Treasury and in No. 10 at that time.

With regard to the implementation of the Bill, the NHS itself wants, subject to legislation, to move at pace to implement statutory arrangements for ICSs by April 2022. That is why NHS England is beginning preparatory work, including publishing an ICS design framework. Further work, including on integrated care board design and consideration of appointments and staff from CCGs will take place, after Second Reading, of course; this is all subject to the passage of the Bill.

Let me turn to some of the specific points raised by hon. and right hon. Members. The hon. Member for York Central (Rachael Maskell) asked about “Agenda for Change”. I can reassure her that it is not the intention that ICBs depart from “Agenda for Change”. The Bill’s drafting and wording is in line with existing arrangements for other NHS bodies with regard to “Agenda for Change” and translates it into this context. However, I am always happy to discuss that with her further if she wishes. Her suggestion that this was conceived, as she put it, in a bunker is quite simply not the case. Indeed, all the stakeholders, including the NHS, have said that this is one of the most collaborative pieces of legislation development they have seen.

Turning to the workforce, as my hon. Friend the Member for Winchester (Steve Brine) said, we cannot legislate to address workforce challenges but we can and we will look very carefully at the recommendations of the Select Committee and of my right hon. Friend the Member for South West Surrey (Jeremy Hunt).

While we do not always agree on everything, the hon. Member for Twickenham (Munira Wilson) made sensible points, although I would slightly tease her that she argued against the principle of the Secretary of State taking powers in reconfiguration and shortly afterwards her hon. Friend, the hon. Member for Westmorland and Lonsdale (Tim Farron), intervened on him asking him to do exactly that.

[Munira Wilson]

I did point that out.

[Edward Argar]

She did.

In response to the hon. Member for Central Ayrshire (Dr Whitford), I am again grateful for her comments and happy to accept her kind invitation to join her on a visit to Scotland.

The right hon. Member for North Durham (Mr Jones) made a very important point. In doing so, he rightly paid tribute to the work in this space done by my hon. Friend the Member for Sevenoaks (Laura Trott) with her recent private Member’s Bill. As the Secretary of State said, either he, I or the relevant Minister will be happy to meet him to discuss it further. My hon. Friend the Member for Meriden (Saqib Bhatti) was right to talk about the need for local flexibility. That is what we are seeking to do.

The hon. Member for Eltham (Clive Efford) asked more broadly about public spending constraints after 2010. He is brave, perhaps, to mention that. I recall the legacy of the previous Labour Government, which the right hon. Member for Birmingham, Hodge Hill (Liam Byrne) summed up pretty effectively in saying,

“I’m afraid there is no money.”

On social care, which a number of hon. and right hon. Members mentioned, we will take no lessons from Labour. In 13 years, after two Green Papers, a royal commission and apparently making it a priority at the spending review of 2007, the net result was absolutely nothing—inaction throughout. We are committed to bringing forward proposals this year. Labour talks; we will act.

The NHS is the finest health service in the world. We knew that before the pandemic, and the last year and a half have only reinforced that. It is our collective duty to strengthen our health and care system for our times. I was shocked, although probably not surprised, that the Opposition recklessly and opportunistically intend to oppose the Bill—a Bill, as we have heard, that the NHS has asked for—once again putting political point scoring ahead of NHS and patient needs. For our part, we are determined to support our NHS, as this Bill does, to create an NHS that is fit for the future and to renew the gift left by generations before us and pass it on stronger to future generations. We are the party of the NHS and we are determined to give it what it needs, what it has asked for and what it deserves. I encourage hon. Members to reject the Opposition amendment, and I commend the Bill to the House.

[Mr Deputy Speaker (Mr Nigel Evans)]

I apologise to the 30 Members who did not get to speak in this important debate, some of whom are currently in the Chamber.

Question put, That the amendment be made.

Health and Care Bill (First sitting)

Edward Argar Excerpts

Committee stage
Tuesday 7th September 2021 Public Bill Committees

[The Chair]

Thank you. I call the Minister.

[The Minister for Health (Edward Argar)]

Q Thank you, Mrs Murray. I will try to be brief, with just two questions. Morning, Danny; morning, Navina. My first question is this: what do you see as the potential role of legislation in addressing future workforce needs— both the limitations of legislation in doing it and the opportunities?

Dr Navina Evans: I will start with the opportunities. We in HEE are really pleased to see that workforce is prioritised in the way that it has been. For us, that means that there is an expectation and an understanding of the need to tackle complex issues of future workforce planning, and that is hugely important. We can do it; it is a difficult task, but through collaboration and bringing people together, it is something that we simply must do, so that we can have more and different, and we can be really future-focused and progressive in the way that we deliver health and care. It is all down to our workforce. So that is the huge opportunity, as we see it.

There are risks. For us, one risk is that too much bureaucracy and added layers of hoops will get in the way, and the other risk is that we have to work hard to make sure that we address culture and collaboration to make this truly successful.

Danny Mortimer: The opportunity, we believe—along with colleagues across the health service—is in clause 33, going further and deeper there in terms of the assessment of need, as well as an assessment or a description of process. Clearly, what legislation cannot do is set out the kinds of behaviours that make that a well-informed and inclusive process. To reassure the Committee, though, what I do see is that the way of working we experienced during the development of this Bill, the way of working we are experiencing with Dr Evans in terms of the process she is leading at the moment—the long-term framework—is inclusive. It is trying to bring different voices in. Difficult decisions may well need to be made about prioritisation, and we understand that, but that is much easier to do and much easier to understand if it is based in that kind of process and behaviour. However, clearly, that is one of the risks.

As I have already said, we have had an increasingly centralised healthcare system over these last few years, and that is also one of the risks. If we stifle the local leadership and local innovation, and if we do not seek that local input in terms of how the development of local services needs to inform, in particular, the long-term planning for workforce, then that is a real risk for the legislation.

[Edward Argar]

Q Thank you. One final question from me, if I may, Mrs Murray. I think it was Dr Mortimer who touched on a couple of points in his comments. One was that the way it is envisaged that this will be implemented would minimise any impact or burden, as it were, on the system, and I think that both witnesses touched on the learnings from the pandemic—the opportunity to build on what was done during that. To what extent, or not, would the witnesses consider that this is the right time to be doing this?

Dr Navina Evans: We in HEE think this is absolutely the right time to be doing this. We are at a moment where we have a lot of learning from what we have been through this last year. We have a real opportunity where many different pieces around innovation and improvement are coming together, and we have learned a lot from our previous experience of delivering the Health and Care Bill. For us, we think that this is absolutely the right moment to be doing this work.

Danny Mortimer: We would agree. NHS Confederation members were clear about the need for this approach before the pandemic, and I think that is even more pressing because of the pandemic. Actually, given the announcements that the Prime Minister is expected to make later today, it reinforces that need to better integrate health and social care, so the timing is very good.

[Edward Argar]

Thank you both. Thank you, Mrs Murray.

[The Chair]

Thank you, Minister. As there are no further questions from Members, I thank the witnesses for their evidence. We will now move on to the next panel.

Examination of Witnesses

Amanda Pritchard and Mark Cubbon gave evidence.

--- Later in debate ---

[The Chair]

Before I call the Minister, I remind Members that there will be a hard stop at 11.25 am. If witnesses could keep their answers as brief as possible, it would be much appreciated.

[Edward Argar]

Q Thank you, Mrs Murray. I will try to rattle through three quick questions. I think this is my first public opportunity to put on record, as the shadow Minister did, my congratulations to you, Amanda, on your appointment.

If I recall correctly, your predecessor, now Lord Stevens, says that about 85% of provisions in the Bill were things that the NHS asked for in its 2019 consultation. Do you recognise that figure, and how would you characterise the approach that has been adopted to the development of the Bill?

Amanda Pritchard: Thank you. I would struggle to give an exact percentage, but the Bill certainly contains widely supported proposals for integrated care. We have been working very closely with our stakeholders, colleagues across the system, you and others to ensure, as far as possible, the same approach to consultation, listening and hearing. You cannot please everybody all the time, but we want to reflect what feels genuinely like a consensus view about what will best help the NHS deliver on all the challenges we have discussed. That is reflected in the Bill, so thank you for that. As it goes through Parliament, we very much want to continue to see that spirit of joint working, consensus building and engagement, so that when it hopefully becomes legislation in April ’22, it lands with all the support that I think it currently has.

[Edward Argar]

Q I will confine myself to one more question, Mrs Murray, to make sure that we do not run up against the time limit. This question has been asked of other witnesses, and I suspect it will be asked of others. To what extent is this the right time to make these changes?

Amanda Pritchard: As I said, I genuinely think that our experience across covid has strengthened the argument for moving to legislation now, because our way of working in the past two years has been characterised by integration and partnership, and that is how the NHS and partners need and want to work—now and as we head into next year, facing that set of challenges that people are so very committed to continuing to tackle together. Yes, Minister, I think this is an important Bill. The integration agenda is not the whole answer, but it is an important component of it, and the sooner it comes, the better.

[Edward Argar]

Q Mark, in the minute or so before Mrs Murray closes the proceedings, is there anything you want to add on those two questions?

Mark Cubbon: All I would say is that collaboration and partnership work is a key feature of our response to covid. It is ever more critical, in the light of the question of how we will approach our recovery. Fantastic working has been enabled locally through necessity; now, we hear from the whole service that we want to build on that. We look forward to the future with that in mind; the Bill allows us to do that.

[The Chair]

As there are no further questions, I thank the witnesses for their evidence. That brings us to the end of our morning sitting. The Committee will meet again at 2 pm in this room to take further evidence.

Ordered,

That further consideration be now adjourned.—(Maggie Throup.)

Health and Care Bill (Second sitting)

Edward Argar Excerpts

Committee stage
Tuesday 7th September 2021 Public Bill Committees

[Karin Smyth]

Q I hope that this is in scope, Mr McCabe. I have just come from the Chamber, where the Prime Minister is still on his feet. He talked about integrated care records, but I am not quite sure if we are discussing the same thing. This may not be news to you, Mr Madden, but could you clarify whether we are all talking about the same thing? I appreciate that you were not there to hear the Prime Minister, but is it your understanding that what we are hearing today about social care is the same as the conversation we have been having about integrated care records, personal care records and so on?

Simon Madden: Forgive me, but I will take full advantage of the fact that I was not there and have not seen the statement that the Prime Minister made. A feature of our plans set out in the data strategy—not so much in terms of the Bill itself—is for each integrated care system to have a basic shared care record, so that throughout their whole health and care journey a patient or citizen does not have to do simple things like repeat test results or repeat their prescriptions, and so that their care journey between health and social care, with provisions for safeguarding and safeguarding information, is seamless.

[The Minister for Health (Edward Argar)]

I will ask a couple of questions, if I may, Mr McCabe, and then perhaps the hon. Member for Nottingham North can come back in if we have time. Moving away from what has been explored by colleagues so far on the extremely important protections around data sharing and data use, can you set out how the changes set out in the Bill relate to and will help you deliver the data strategy that you have in place?

Simon Madden: It is important to set out that these provisions alone, while they do much within the Bill, must be seen in the context of that wider data strategy. They support our ambitions, and the integration and collaboration that is described in the Bill will be a huge enabler for the ambitions set out in the strategy itself.

The provisions themselves focus to some extent on tidying things up and providing a degree of clarification. I mentioned the provisions for clarifying NHS Digital powers: currently, there is sometimes confusion around what data NHS Digital can share and in what circumstances it can share it. Sometimes, that leads to problems when data may need to be shared for very good reasons—for justifiable reasons—but NHS Digital is sometimes not convinced that it has the legal power to be able to share the data. This puts beyond doubt its ability to share data appropriately.

Another provision is on information standards. We are making a provision in the Bill to mandate standards for the storage and collection of data. That is important to ensure that data can flow between different IT systems and organisational boundaries in the health and care system. That will then help individual patients and improve health outcomes. We want to ensure that providers of health and care services purchase only technology that adheres to that set of standards, so that we have that interoperability, and those improved outcomes for patients, through that mandation of information standards.

We have also put in clauses around sharing anonymous health and care information, which help to essentially set a duty to share anonymous information when it is legally permitted to do so. One of the lessons that we have learned over the pandemic has been that, although it is perfectly permissible for data to be shared—it is legally permissible to do so—the shift from “can” to “should” has a great impact within the system.

Our invoking of the control of patient information regulations under existing legislation, to enable that sharing of data and to say, “You should share data in these circumstances,” has significantly helped the free flow of data safely and securely within the health system. That has had an impact on patient care. I think that the duty to share anonymous data will help to put on a more permanent footing some of those provisions that we have seen during the pandemic.

[Edward Argar]

Q To what extent would you consider it a fair characterisation that this is, in a sense, evolutionary, and that, actually, to a large extent, the provisions related to data—to go back to what you said—add greater transparency and legal clarity around some things that may have had to happen during the pandemic, and give them a longer-term basis in statute, as debated by this place? Do feel entirely free to disagree with that characterisation, I hasten to add. I am not leading you in any way, but to what extent would you consider that to be a fair reflection of these provisions?

Simon Madden: I think it is a fair reflection, to a certain degree. I think that the thing that we must always be conscious of, particularly in the field of data and technology, is that we see advances but legislation often does not keep up with those advances. It is about ensuring that everyone understands their responsibilities—not just that the public understands the responsibilities of organisations that are safeguarding data, but that those organisations themselves have the right powers to be able to share data safely and securely. I think it is evolutionary in that sense, but it is also about making sure that the provisions in the Bill are keeping pace with the development of technology and how data is used in the real, modern world.

[Alex Norris]

Q I will ask two questions in finishing, if I may, Mr McCabe. The first is a final one on the GPDPR promise. Mr Madden, you said that that is a separate process to the one in part 2 of the Bill—which I completely agree with—but that in the public’s mind, the two are likely to be conflated, and that now would be a good moment to reset the relationship between people and their data. Again, I completely agree with that. Is there any technical reason why we could not run those two processes not as two but as one?

Simon Madden: I should perhaps caveat my previous comments by saying that they very much are, in our mind; it is all about health data. The focal point for us at the moment, which we are working through with Ministers, is the formulation of the final version of the data strategy. Of course, the legislative provisions are within the data strategy. It is very much the case that the publication of that document, I think, is the right moment for that reset where we have more intensified engagement with the public and we really step up the narrative around how health data is used. As one of your colleagues said, the real detail comes in regulations, if there are any regulations around that; and of course there would need to be consultation before the regulations were put in place.

--- Later in debate ---

[Justin Madders]

Q On the Secretary of State’s powers of intervention on reconfigurations, is it your understanding that a local system could agree across the board that particular changes were necessary and actually that it was important for reasons of patient safety that those changes were made but that the Secretary of State could intervene at any time to stop them?

Matthew Taylor: Yes, unfortunately that is our understanding, and we think that it would be a retrograde step. It is not a power that I would want if I were a Secretary of State and I wanted to focus on strategic policy questions. I would not have advised the Secretary of State to want those powers.

Our view would be that we should remove the extension of the Secretary of State’s power entirely, but, failing that, we should put some guard rails on in relation to hearing the views of local health overview and scrutiny committees, getting local clinical advice on what is best and having a public interest test that should be passed. If those guard rails were in place, we could cope with this.

What we do not want is a chilling effect on the capacity of local leaders to make the decisions that they need to make to use their resources effectively. The third element of the triple mandate is the effective use of resources, and that involves making decisions at a whole variety of levels around how you configure services. If you feel you are going to go through that process and potentially engage local populations in difficult conversations, and then at the end of the day a local MP, for whatever reason, is going to kibosh that by appealing to the Secretary of State, why would you embark on the process in the first place? That is why, while we are very supportive of the Bill, as you have heard from both Saffron and me, we do think that the powers of reconfiguration are the Achilles heel. I appeal to you to recognise that that is unnecessary and goes against the spirit of the Bill.

Saffron Cordery: I wholeheartedly support what Matthew says, and it speaks to a point I made earlier about adding to existing structures in a way that really is not necessary. I notice that you have representatives from the Local Government Association as witnesses later on. I am pretty sure that they will have some strong views about what these measures do for the powers of local health overview and scrutiny committees, because they already have the power to refer to the Secretary of State should they need that to happen. The powers that are currently in place are a really effective way of doing it. People getting something past a local health overview and scrutiny committee is a really important hurdle for any service change. It is already well respected, well used and very effective. This is one of those elements that at best is redundant and at worst is going to create a lot of work and a lot of unnecessary tension and friction where we already have challenge.

[Edward Argar]

Q I have just a couple of questions, because a lot of the issues have been explored. My first one is something that we have not touched on yet in our questioning of witnesses. I welcome both your thoughts on the proposals in the Bill to delete and replace section 75 of the 2012 legislation, around procurement, and your reflections on the opportunities or challenges that that presents.

Saffron Cordery: As we see a change in the system, obviously the nature of how we have procured services in the past does have to change. It is obviously a complex area, but one of the things that we really need to look at is the effectiveness of the current contracting regime, which for certain parts of the provider sector in particular is incredibly burdensome. If you sit in a mental health or a community trust, you are subject to a whole host of retendering, which can have a potentially far-reaching impact on your trust’s sustainability or the future operation of key services. For many bits of the system, that will be very important.

The procurement regime is fundamental. It underpins how this will operate. We need to make sure that the elements of fairness are upheld and that it does not disproportionately put a burden on any one part of the system in particular.

[Edward Argar]

Matthew?

Matthew Taylor: I agree with that. It is important to remember that one of the goals of the Bill is to reduce the weight of bureaucracy in the system. If we can reduce the weight of bureaucracy as it applies to procurement, that is only a good thing.

[Edward Argar]

Q My second question—I think this has come through in what both of you have said, but feel free to challenge it when you answer if I have misrepresented what you have said—involves one of the key things I have detected, which is that we must be careful not to forget that no one size fits all in this context. Back in the dim and distant past when I was a councillor, I sat on a primary care trust board as a local authority representative, and I found that joint working could be highly effective, so what is the right balance? You have touched on this in some of your previous answers. Recognising that it is sometimes as much about relationships as about formal structures, what do you think is the right balance between permissive and prescriptive in what we are trying to do here? How do we strike that balance appropriately, and have we struck it appropriately?

Matthew Taylor: Of course, one of the most challenging questions in all parts of central Government is to get that balance right. The one point that I want to make is about the nature of system leadership. If you lead an organisation—I lead an organisation—the parameters of what you do are reasonably well defined and you lead that organisation as best you can, and you can be regulated as an organisation in relation to its objectives. The thing about system leadership is that it involves developing a concrete and specific account of how you want to add value in a particular local circumstance—how is it that, working as a system, you will make a difference?

By looking towards population health and engaging local people, that proposition will vary from place to place. It is important that, when we look at how systems work, we allow them to develop a value proposition that is specific to their local circumstances and their local needs. That is why, for example, we would be very resistant to any kind of Ofsted inspection regime for systems, because systems are not the same as hospitals or as schools; they are very different and their aspirations will be very different.

When you look at the Bill, the reality of central-local relations is that rules are set out in legislation, but then there is the custom and practice of how Departments and other bodies actually work. Sadly and inevitably, the drift of custom and practice tends to be towards centralisation. That is why it is important to avoid things in the Bill that create an opening—this is why we can have our concerns about reconfiguration—which can get ever wider and thus undermine the key principles that lie at the heart of the Bill. So we are happy with the intentions of the Bill, but we are worried that there are certain elements of it and certain elements that might be involved in the operationalising of it that could undermine its intentions.

[Edward Argar]

Thank you. Saffron?

Saffron Cordery: I go back to a point that I made earlier in this session, which is that this balance between permissiveness and prescriptiveness is critical. The August 2019 agreement, when all the stakeholders came together to look at how we might legislate for an integrated care system that got that balance right, I think is there. You have to remember that what sits around a set of proposals will have a massive impact on it, so the Secretary of State’s powers as we have seen them, and the operating environment overall, will have an impact on how these proposals will be implemented, and how effectively they will be implemented.

We cannot forget covid in this. We cannot forget the extreme financial pressures that we are seeing. We cannot forget demand. We cannot forget an incredibly tired workforce. That is not going to change any time soon; that is going to be for the next few years, so we are implementing something against that backdrop. But if we go back to the slightly lighter touch of the August 2019 proposals, we will probably get to a place that would hit the spot, as it were. I reiterate that we support collaboration in systems and the direction of travel.

[The Chair]

Given the time, we will leave it there. I thank our witnesses, Saffron Cordery and Matthew Taylor.

Examination of Witnesses

Ian Trenholm and Keith Conradi gave evidence.

--- Later in debate ---

[The Chair]

Do have anything further you want to add? No. Minister.

[Edward Argar]

Q Thank you both for your evidence. I have one question for Mr Trenholm, two for Mr Conradi and then one for both of you, if I may, time permitting, Mr McCabe.

You will have heard in the evidence just before, Mr Trenholm, the comments by Matthew Taylor about the difference between assessing a system versus a provision. How do you see how the CQC would square that circle, because he highlighted the very different approaches and his reservations about some of that? How do you see that issue being resolved, or what would you like to see in that space?

Ian Trenholm: If I compare one large hospital with another large hospital as a comparison in terms of what we do now, one would argue that they are quite different enterprises, differently run and serving different communities. There are some common themes, but equally there are some differences. We built a methodology that was able to be applied to both of those very separate entities and to provide a common rating at the end of it.

I would see a version of that at a system level: there would be things that we would want to see that would be common and necessary— decent quality governance, for example—as well as a lot of things that many of you were raising as questions and concerns. But equally we want to see some evidence that the partnership board was cognisant of its local community and it was genuinely delivering a suite of services that its local community genuinely wanted and that was consistent with the needs of that community.

Over the next 18 months or so, we will be building our methodology in collaboration with the people who are also building the ICS boards and frameworks. I am hopeful that we can get to a point where we have a methodology that gives you, as parliamentarians, and local people the assurance that things are working well locally. However, it is not just about what is not working, but about looking for really good practice and looking to accelerate that. Previous people have made the point that doing things differently often leads to good practice and innovation, so how can we help accelerate that innovation through the work that we do. That is broadly how I see it working.

[Edward Argar]

Q Thank you. Mr Conradi, the first question is probably a relatively quick and simple one, but I will not prejudge your response. Given that the HSSIB aspects have been in preparation for quite some time—I am alluding to the work that Dr Whitford and other colleagues did some time ago—what would your view be on the appropriateness of getting this done and the timeliness of bringing these measures forward? I am asking a number of witnesses whether this is the right time to be doing what we are proposing. In the case of HSSIB, is it the right time?

Keith Conradi: Absolutely.

[Edward Argar]

Q I suspected that might be the answer, but I did not want to prejudge. My second question goes to a slightly knottier area, and one that you have already alluded to. I think you have said—by all means correct me if at any point I misinterpret what you have said—that ideally you would prefer the safe space to be as absolute as possible, given the nature of what you are seeking to do. There is, as we recognise in the Bill, a challenge about the specific statutory rights of coroners as members of the judiciary; I note what you have said about that. Would it be fair to say, first, that notwithstanding that, you would not want that safe space to be eroded further for other groups? I think you have been clear that you would prefer it not to be eroded at all, but you would not want its erosion to go further. The second element is this. Although you would prefer it to be preserved intact, do you think that if there is going to be that exception in the case of coroners, for example, the High Court is the right level of arbitration in something like that? I know you suggested that it might be.

Keith Conradi: I certainly think so. My previous experience in aviation is that we had a similar space, and only the High Court could overturn or order disclosure. It was used on a handful of occasions, and it produced very interesting debate. The balancing test—testing whether the benefits of the disclosure outweighed the adverse reaction that there might be to future investigations—was well argued in each of the cases. I think that is the appropriate place to do it.

[Edward Argar]

Q Thank you. My final question is to both of you. Your organisations are separate but key elements focused on patient safety and the safety of outcomes for individual patients. How do you see the work of your two organisations fitting together and complementing each other, while recognising that they are both very distinct?

Ian Trenholm: We do work at the moment in terms of registering and regulating individual providers, and we do that right across the country, so we have a picture of health and social care right across England. Part of the Bill will give us enhanced powers looking at the way in which individual systems and individual ICSs work. Our view is, if you like, a broad and moderately shallow view, whereas I think Keith’s team do more in the way of specific investigations. I am sure Keith can talk to that.

Keith Conradi: I would characterise the relationship as a healthy tension. We make very few recommendations to the CQC, but the vast majority of recommendations we make will, we hope, have an impact on the work that is going on across the system. The ideal people to have a look and see whether that is having an effect will be the CQC, from time to time, as it comes across things that have changed as a result of what we have done. I think the relationship works very well, in that respect.

[Edward Argar]

Thank you very much.

[The Chair]

Mary, did I see you trying to come in with another point?

--- Later in debate ---

[The Chair]

I am going to go to the Minister now because of time.

[Edward Argar]

Q Good afternoon, Councillor and Professor. I have two or three questions; we will see how we do on time. I will get through as many as I can, and if I do not get through them all, I do not get through them all.

Back in the day, I served as a councillor and cabinet member for public health, adult social care and health, and worked very closely with my then local PCT, which probably shows you my vintage. One of the things that I found was that the structures were important, but the relationships and how it worked on the ground, and the ability to be flexible and build up the trust between the two organisations was more effective in getting better outcomes. We have heard from previous witnesses about the importance of local flexibility to adapt to local work arrangements and conditions. Do you think we are striking the right balance between being permissive in allowing that flexibility and not being too prescriptive, or do we need to go a little more in a different direction?

Professor Maggie Rae: In my experience, with the way that the ICS has been set up, we very much hope that we will not start from scratch again, because those organisations have been working on this agenda for quite some time. I think there would be cries of horror if we said, “We are going to throw out the work you’ve already done.” Many of them have been on this journey for a while, and the leaders in those systems have indeed made some good progress. I think it is a delicate balance.

I will not repeat the points I have already made about strengthening the links to public health and making sure that is not forgotten. We will have 600 public health people going back into the NHS, but we very specifically have not changed the legislation that put directors of public health in England into local government. Of course, directors of public health in the three devolved nations are currently in the NHS. If you do not give people flexibility, you run the risk of your system not working. If we ensure that the framework and assurance process are right, the legislation takes us part of the way, but we want some checks and balances in relation to those freedoms, to make sure that there is a basic minimum standard across the country. If you have an ICS that is not working with its local authority, that is not a level where the ICS should be signed off. The ICS should be asked to go and demonstrate the commitment that the flexibility has allowed them. There is a statement in the framework that was released a couple of months ago, which said that the directors of public health will have an official role on both boards. I found that a pretty good statement to have, but it is only a statement that is effective if there is some assurance that that can be delivered on, and there need to be some checks and balances in order to make sure that those kinds of things are not ignored. Because of the variety—some ICSs cater for 2 million or 3 million people, and some for 1 million—you need the flexibility. If you want them to own and deal with the problems of their population, having a little bit of flexibility is the right approach, provided that the minimum standards are met across the whole country.

[Edward Argar]

Q Thank you. Councillor Jamieson, I have seen that councils can often be at the forefront of leading innovation and driving change in a dynamic way. From the LGA’s perspective, do you think that we are striking the right balance between permissive and prescriptive, and is the approach to the ICP board and ICB an appropriate balance?

Cllr James Jamieson: From a legislative perspective, largely yes. I reiterate the point that I have made a couple of times already: the statutory and non-statutory guidelines will be critical in this area. We need to get them right and ensure that there is real embedded consultation. There are a couple of things that we are concerned about. I have not mentioned them yet, so I will use this opportunity to do so. One is the increase in the powers of the Secretary of State to call in NHS reconfiguration proposals and so forth, and the risk that that would undermine the existing local government influence, overview and scrutiny, so we would ask for a change to schedule 6 of the Bill in order to ensure that there is consultation at a local level before those powers are enacted.

The second area—it is probably not what you are asking about, but it is important that we raise it—is assurance around social care. It is good to have assurance around social care, but we need to make sure that that assurance is proportionate and is in context. Bearing in mind how stretched social care is from a financial perspective, it would be unreasonable to expect social care to do more than its budget allows it to do. In the same way, social care is also very dependent on the performance of the NHS, community care and so forth. We have some concerns around that assurance framework, which needs some work.

[Edward Argar]

Thank you, both. Mr McCabe, I am conscious of time and our programme motion, so I will pause there.

[The Chair]

Thank you, Minister. I thank both our witnesses for their evidence.

Examination of Witnesses

Eluned Morgan, Lyn Summers and Mari Williams gave evidence.

--- Later in debate ---

[Alex Norris]

Q That is helpful, thanks. To change tack slightly, in 2016 the Welsh Government brought in legislation around safe staffing levels. Are you able to talk us through that and say, five years on, what impact that has had?

Eluned Morgan: This is in relation to nursing. We have a law on safe staffing levels in nursing. Not only has it been implemented, but it has been extended since we brought in that Bill. It is something that the Royal College of Nursing is hugely appreciative of, and something that we are keeping an eye on. It has made a difference to patient safety, and we in the Welsh Government take it very seriously.

[Edward Argar]

Q Good afternoon, Minister and colleagues. Thank you for your evidence and answers so far. By my reckoning, of the nine issues on which we had a discussion, we reached an agreement on seven. I think there are two outstanding, which are the ones you have highlighted in your evidence. I owe you an answer to your letter, but I think we are meeting shortly to further discuss that.

I want to pick up on something that colleagues have touched on and which you have highlighted around the model of integration in Wales—the unitary model, for want of a better way of putting it. I acknowledge that you said it was early days, but I would like to get a sense of how you feel that model is delivering a national system but allowing local flexibility, and of the extent to which it is delivering, even in its early days, improved health outcomes for patients in Wales. As we look at ICSs and closer working between local authorities and the NHS in England, it may be instructive for us to learn from your experience, even if it is not a direct parallel, and from what you are seeing, even in these early days.

Eluned Morgan: We had a parliamentary review that looked at our NHS and care system, and went into a lot of detail about what we could change. A lot of it was about the need to integrate—[Inaudible.] What we have done as a result is take an interim step towards better integration. We not only set up the legislative framework for that, but put significant funding into driving these health and care systems to work together. We had an integrated care fund and a transformation fund. We found that both the health service and the care service really liked the new approach. They really have engaged. We have kind of allowed a thousand flowers to bloom here, and there have been some really innovative ideas and work. How do we get people out of hospital quicker? How do we drive that change? There have been some great examples.

What we are still struggling with, if I am honest, is that we are still finding difficulty getting both the health service and the care service to understand that what they have changed and what works well now needs to be mainstreamed. There cannot be additional funding forever. The purpose of that additional funding was to give the confidence to do it in the mainstream. We are finding that they have pocketed that money, saying, “This is great. Can we have more, please?” We have tried to make it clear to them that that was never the idea. The idea was for them to have that transformation funding to drive change.

That is our next challenge, and that is what we are working on now, but there are ways of doing that. Clearly, this is a difficult time to be doing it, but some health boards are frankly being driven into closer working relationships, because there are so many examples of delayed transfer of care given the infrastructure at the local government level. Do not forget that in Wales we have not seen anything like the cuts that have happened in England, but even we are feeling the pressure in quite a significant way, and we are having some real issues in relation to recruitment to the care workforce in particular. That is the biggest challenge for us at the moment.

[Edward Argar]

Q That is really helpful, thank you. As ever, I am grateful for your candour, because that will help us to learn from your experience. I am always frank with colleagues about the fact that we will look around to see whether we can learn from Cardiff, Edinburgh or Belfast. That is what we should be in the business of doing. You mentioned using transformation funding to allow local flowers to bloom. That goes to the heart of something we have discussed in a number of sessions today. To what extent, in how you are approaching this greater integration or joint working, have you adopted either a permissive or a prescriptive approach? How have you sought to balance those two ways of doing things to get the best outcome?

Eluned Morgan: It has been quite interesting. With care, for example, we have found that a lot of competition was going, such as between the independent care providers and the local authority—they were poaching from each other. All of that was damaging to the public purse and to the provision that we could give. Now we are in the process of developing an all-Wales framework within which people who want to provide care in Wales will work. That is what we are working on—a new legislative framework that will provide the infrastructure and give the minimal standards that they will have to meet. It is also making sure that we are driving quality through the system.

[Edward Argar]

Q I am conscious of time, but I have a final question that refers back to my first one. Do you have any evidence, whether anecdotal or that you will not share with the Committee, on how the approach is improving or changing health outcomes for NHS patients in Wales, quantitatively or qualitatively? What benefits are you seeing? Is there any evidence behind that? That is something we have explored with other witnesses—how ICSs will seek to do that—but given that you have started down this road already, is there anything you can share?

Eluned Morgan: What is difficult is that we started this process pre-pandemic but, clearly, with the pandemic we are in a very different situation. It is difficult to say what the model would look like in normal times, because we have had 18 months of something very different. It is hard for us to assess that evidence in the light of our circumstances at the moment, if I am honest.

[Edward Argar]

That is fair. Thank you, Minister.

[The Chair]

No one else? As there are no further questions, I thank you, Minister Morgan, and your officials for the evidence that you have provided today.

Eluned Morgan: Diolch yn fawr.

Ordered, That further consideration be now adjourned. —(Maggie Throup.)

Health and Care Bill (Third sitting)

Edward Argar Excerpts

Committee stage
Thursday 9th September 2021 Public Bill Committees

[Justin Madders]

Thank you very much.

[The Minister for Health (Edward Argar)]

Q Sara and Chand, welcome. I will try to get through three questions, but, if I run out of time, I will settle for two. We heard from a significant number of witnesses on Tuesday; you will have seen or read what they said. The overwhelming majority said that now was the right time to do this. Sara, I noticed that, in your evidence, notwithstanding the challenges you posed about some of the content that you would disagree with, you highlighted that this was due in 2019, on the basis of the original consultation, and asked why it had taken so long.

To both of you, do you think that now is the right time? I know that Chand has answered that, but this second part might apply to him: if it is not, when is the right time?

Sara Gorton: We were strong opponents of the 2012 legislation, so, in our view, the right time to do this would have been to not put that legislation through. However, we have been waiting for this batch of changes for some time. It has been evident, from 2013-14, and certainly since the “Five Year Forward View” was published, that what we were doing was having a structural workaround with people tacitly agreeing to almost ignore legislation. That is just not acceptable in the system.

Certainly, for my members who have been moved into new arm’s length bodies, moved around those bodies, and are now subject to another change, they want the security of knowing who is going to be employing them this time next year. In our view, the changes, both to the competition and procurement regime, and to clarifying how the new bodies will operate and what powers they will have, cannot wait. There are lots of other aspects that, as you can see from our briefing, we suggest could wait for future debate.

Dr Chaand Nagpaul: I want to be clear: we do not support the status quo. There is a pressing need to repeal much of the 2012 Act. However, I cannot overestimate how much the pandemic has affected us. We have not been able to be engaged, so it has to be asked: why do we need the Bill at this moment in time, when we are all absolutely overwhelmed? We know that any reorganisation of the health service means that people get distracted from their core work. The process of reorganisation takes human resource time. We have not been able to engage with this as we should, so we do not think that this is the right time.

The right time would be decided by two factors: first, when we are through the worst of what we are going through at the moment, and secondly, when the legitimate concerns we have are addressed, and there are the amendments that we would like to see. This Bill can shape the future of our health service. Get the right Bill, at the right time.

[Edward Argar]

Q I have read your evidence very carefully, and your views on the 2012 Act are clear. To put in context what sort of changes—not withstanding your evidence—the BMA is and is not supportive of, which of the 1999, 2001, 2003, and 2006 Acts did the BMA come out fully in support of?

Dr Chaand Nagpaul: I am afraid I will have to let you know later, as I do not, off the top of my head, know exactly what those Bills contained.

[Edward Argar]

Q Thank you. Feel free to write to the Committee. This is my final question, so that we finish on time. This relates directly to the BMA’s evidence, but Sarah may want to come in on this afterwards. You both touched on the procurement regulations in section 75 of the 2012 legislation; why are saying that NHS, or public sector, provision should be the default, rather than whatever provision provides the best outcome for patients? You highlighted the very clear view that NHS and public sector provision is the most cost-effective and the most clinically effective; it would therefore succeed anyway if the question is what delivers the best outcomes. Why preset that default?

Dr Chaand Nagpaul: First, the rules at the moment do not factor in that the NHS provides, in addition to the service, a complete, full body of care for patients. The same money would go on a hip replacement in the private sector. Secondly, there is the training element that I mentioned earlier. Thirdly, no acute NHS trust can walk away after two years—it is there to provide care to its population—but Serco was able to walk away after two years. We have many examples of private companies that have ended their GP contracts. Serco left an out-of-hours contract in Cornwall; that does not happen in the NHS. My local hospital has been there for as long as I can remember—it cannot walk away. The NHS provides accountability and duty, but more importantly, it is actually cost-effective. The staff have national terms and conditions; they provide huge amounts of good will and work above their contracts. It just makes sense to be resourcing our NHS.

Every time you take a contract away from the NHS, it is defunding the local system. We want taxpayers’ money to bolster an NHS that is co-ordinated, because we also want changes in the legislative requirements for foundation trusts and other NHS bodies to collaborate.

[Edward Argar]

Q In the minute left, Sarah, is there anything you wanted to add?

Sara Gorton: What the legislation sets out is a proposal for system working. Therefore, having something that disrupts that system is potentially counterproductive. I strongly support putting the NHS first—the NHS default—into the provider selection regime that is listed in clause 68.

[The Chair]

Thank you very much. We are making excellent time.

[Justin Madders]

On a point of order, Mrs Murray. On the Minister’s question to the BMA witness about previous Acts that the BMA may have endorsed, that would clearly be out of scope as evidence. I would not want Dr Nagpaul to waste time researching an answer that the Committee could not take into account.

[Edward Argar]

Further to that point of order, Mrs Murray. Would it help if I set out the context in which I believe that question relates directly to the content of the Bill? Much of what is discussed in the Bill relates to previous legislation that has grown up over time; understanding which pieces of legislation the BMA supports will help us to better understand the evidence it has put forward on this legislation, and its context.

[The Chair]

Mr Madders, I think that the Minister has taken on board your point of order and paid attention to it. Thank you, Minister.

As there are no further questions, because we are out of time, I thank our witnesses very much for their evidence. We will move on to the next panel.

Examination of Witnesses

Professor Martin Marshall, Pat Cullen and Professor Helen Stokes-Lampard gave evidence.

--- Later in debate ---

[The Chair]

Thank you. We now go to Minister Argar.

[Edward Argar]

Q Thank you, Mrs Murray. I will endeavour to be relatively brief, as I am conscious of time.

Welcome and thank you very much for your evidence this morning and your frank answers to the questions posed. I want to ask a question in the context of what a number of you have raised about the different voices and the extent to which they need to be represented at the different decision-making levels of the new structure. We heard from previous witnesses, for example in the context of public health voices also, about the value that they add. The principle behind this legislation is that it is permissive rather than prescriptive. Therefore it is possible to have a lot more voices; there is only a de minimis level specified as prescribed. What is your view as to whether the appropriate balance between permissive and prescriptive has been struck in the Bill? If you think it has not been, where do you think the balance between permissive and prescriptive has been missed? Shall we start with Pat and then work our way along?

Pat Cullen: I have said very clearly that I believe the nurse needs to be represented at the board, and that needs to be an executive director of nursing. That needs to be prescriptive; it is not good enough to have it placed within mandatory guidance, it needs to be within the Bill. That is a red line for our nurses, and it will remain a red line, and we will be putting it forward as a red line.

Professor Helen Stokes-Lampard: I am going to be slightly subtler with what I say about this. I think the legislation, as drafted at the moment, is very enabling, and the implementation of it is where the great improvement in how we deliver care will come. I do think it is permissive, and I do think that it is enabling, and I completely understand my colleague’s desire to include specific words relating to nurses, GPs and whoever. What is vital for me is that the clinical voice is loud, clear, and can be influential. That is about implementation, culture and behaviour at a local level. Once we have the words for the final legislation, it is a question of how on earth we deliver it and support people to do it well, and how we learn from the best practice that is out there. That would be my—and our—view.

Professor Martin Marshall: In my 30 years as a GP, I cannot think of a single piece of legislation that has directly changed my practice on the ground. What I can see is the extent that legislation sets a tone and a culture within which clinical care is provided. I think this Bill is appropriately permissive, but, given the variation in all the challenges that we have identified, it needs to be permissive with really good oversight to ensure that the consequences of implementation do not lead to dramatic variation across the country.

[Edward Argar]

Q Thank you. I have three minutes left, so I may try a follow up. That is really helpful, and thank you again for the candour of your answers. Much as it may sometimes pain us in this place, we do recognise that legislation can be an enabler, but we cannot sit here and solve problems on the ground simply by legislation. I sat on a PCT board many years ago, and the culture and the working relationships were almost more valuable than the framework that sat around them.

Going back to Pat’s evidence, but also to all of you: we have heard in our evidence today, and we heard it on Tuesday, a lot of different, vital parts of the system arguing the case for why they should be represented in a prescriptive way. Equally, we will have others arguing that a committee beyond a certain size becomes less effective. In terms of numbers, we have set a minimum. You are entirely entitled to say that you do not have a view on this, but how would you see the balance being struck between different groups making the case for representation, but, equally, having an effectively sized decision-making body? We will start with Martin, and then work backwards.

Professor Martin Marshall: I am glad to say that I do not have a view, but I do think that the boards should be small in order to be effective. They need to listen to advisory groups and sub-boards below them; it is the structures below the board level that will really make the difference.

Professor Helen Stokes-Lampard: Formally, the Academy of Medical Royal Colleges does not have a view. Personally, I have chaired boards from as few as five people, through to boards of 70 people, all of which can be hugely effective if managed well. However, the larger the board gets, the tighter the management has to be, because it is harder to get voices heard and for everyone to feel represented. Essentially, I am saying the same as Martin: smaller boards are generally more effective at getting through the agenda, but there has to be a high degree of trust in those that are actually on the board, and strong lines to sub-groups, for them to function with maximum effectiveness.

Pat Cullen: The board needs to comprise the right people. It is not about numbers; it needs to have the right people with clinical focus and patient care driving the outcomes for patients, and it needs to make sure that it does not develop a financially focused agenda. As director of nursing I have been there too many times: the table loses focus on the patient’s voice and needs. There needs to be a clinical focus and the right people at the table.

[Edward Argar]

Thank you all very much, I have no more questions.

[The Chair]

Thank you very much. As there are no further questions, I thank our witnesses for their evidence. That brings us to the end of our morning session. The Committee will meet again at 2 o’clock this afternoon to take further evidence.

Ordered, That further consideration be now adjourned. —(Maggie Throup.)

Health and Care Bill (Fourth sitting)

Edward Argar Excerpts

Committee stage
Thursday 9th September 2021 Public Bill Committees

[The Chair]

I had better move on at this stage. I am really sorry, Nigel. Minister?

[The Minister for Health (Edward Argar)]

Q Thank you, Mr McCabe. I will only ask the one question, because I am conscious of time and keen that Opposition Front Benchers have their time. My question goes to the heart of this, and I am afraid it is a subjective question, but with all your expertise in this space, your answers will be instructive. In framing this legislation, we sought for it to be both evolutionary in reflecting the changes that are already under way, and permissive rather than prescriptive. Do you feel we have struck the right balance in terms of permissive versus prescriptive? If not, where is that balance missing? Shall we start with Nigel, and then work along?

Nigel Edwards: I think we have shared our anxieties about the reconfiguration and direction powers. In terms of what this does to the organisational architecture, it seems to me to strike the right balance between permissive and directive.

Nick Timmins: I would echo that. I have major reservations about the new powers of direction and, I think, major reservations if you build in reconfiguration service changes. The good thing about this—it has been the good thing about the development of the integrated care system so far—is that it is quite flexible. That is unusual in the NHS’s history: we tend to come up with very prescriptive solutions for what the system should look like everywhere, when in practice the circumstances are different, so I think the balance is pretty good.

Richard Murray: You could easily criticise the degree of permissiveness; you could criticise the degree of direction in there. The question should be, “Can anyone come up with a better one?” We have not been able to do so, so I think it is a balance well drawn. Of course, a lot will then rest on the behaviours that are shown after the Bill is through—whether people live up to that kind of core belief around that permissiveness and the freedoms that have been given.

[Edward Argar]

Thank you all very much. No more questions, Mr McCabe.

[The Chair]

We have time to squeeze in one very quick one, if anyone has something else to ask.

--- Later in debate ---

[Alex Norris]

Q So in your modelling it would be a partnership of the two.

Louise Patten: It is both/and.

[Edward Argar]

Q I only have a couple of questions, Mr McCabe. I welcome the witnesses and thank them for their evidence so far. One question will be one that I have asked witnesses in previous sessions. We are seeking with this legislation to recognise the existing evolution of the system and the limitations of legislation in driving implementation and behaviours on the ground, as opposed to people finding their own ways of working within a framework. We have therefore focused on a permissive as opposed to a prescriptive approach. Do you believe that we have got the balance right in seeking a permissive framework rather than a prescriptive one? Are there any examples that you would add to what you have already said to illustrate your perspective on that?

Dame Gill Morgan: Yes, I think you have got the balance, and that is the joy of working with a Bill team. I think the balance is right. You have tried not to be prescriptive and tie our hands, but you have been clear in the sense of setting a direction and focus that we will all take into account, so you do not have to tell us things to make the NHS do it. We do it because we pick up the runes.

On the issues that we would be more concerned about, I personally am concerned about the ability of the Secretary of State to call in changes. In part that is because the one thing I think the NHS has learnt in the time that I was out and came back is how to do relatively good consultations. We have just finished a massive consultation. Patients have gone with us. The local communities have gone with us, mostly. We have had citizens juries and all sorts of things to reach a consensus about the direction of travel. The worst thing in the world would be that people say, “There is no point in engaging in those mechanisms locally because, at the end of the day, we will just complain to the Secretary of State and it will not happen.” If that becomes the way people manage that part of the Bill, it will take us backwards, not forwards, in terms of proper citizen engagement.

Louise Patten: On balance, it is about the Secretary of State’s powers of reconfiguration, and NHS leaders in general are concerned about that. It is not so much about the Secretary of State having an early understanding of the reconfigurations or the intent, but about the fact that that decision could be taken at a point where all the evidence is not ready to be properly considered.

Building on Gill’s point, patients and the public would be very frustrated if they felt that they had not had an opportunity to be answered, so we are asking, if not for the clause to be removed, for at least the clinical case for change to be considered from the ICB. Coming back to clinical decisions about clinical services, we want that accountability to local communities, not just up to Whitehall, and some transparency about why the decision was made, and on what basis and information it was taken.

[Edward Argar]

Q Thank you. My next question follows on from that, acknowledging that point about reconfiguration powers, and builds on your clear answer to Karin that you think that what is framed here strengthens local accountability and engagement, and relates to something that you may have mentioned earlier, Gill, in some of your answers. Do you think that it is the right approach, in terms of ICB membership and others, to set a de minimis core membership and then allow that local flexibility to reflect local needs, local accountability and local engagement, to expand it as the local system and local people feel appropriate? Do you think that strikes the right balance?

Dame Gill Morgan: I think you are absolutely right: de minimis. What I have argued throughout is that if the centre, if you and then NHS England, which issues guidance, are clear about the principle that we have a proper engagement mechanism with our local authorities and citizens, they need to ask us how we are doing that, and to ensure that our constitution meets that. There are plenty of checks to ensure that it happens without you telling us that we have to have this, this and this.

In our case, we will have mental health and social care around the table, not because we are told to but because we could not imagine how we could do our work at a local level without having those people feeling that they are full partners and sitting around the table. There is a set of concerns about having local government involved in making decisions about the expenditure of large amounts of NHS money. I do not care; they are the local people who need to be involved in the decision making. Actually, if they see the deliberations and challenge first hand we will get better-aligned budgets. At the end of the day, that is to everybody’s benefit.

Louise Patten: There are already five mandated board positions in the legislation. A further five will be in the mandated guidance from NHS England. We are up to 10 already. I think the most important thing here is: where do you stop? There is a risk that there is a perception of two tiers—that those who have a mandated position on the board are of more importance than others. That flies in the face of partnership working.

[Edward Argar]

Q A final question, if time allows. I entirely take on board your point about the aim, the underlying point about implementation being key here—almost more so than the legislative framework—and the point about a single pot and sense of ownership. I remember the old section 75 of the National Health Service Act 2006, rather than the Health and Social Care Act 2012, being the mechanism that I used when I was a councillor to work with the primary care trust. It worked, but it was a bit clunky at times. My question is one that I have asked other witnesses, so I suspect that it will not come as a surprise to you. Do you think that this is the right time to be introducing these changes and legislation and, if not, when would be?

Dame Gill Morgan: My view is that we are where we are and we need to progress. Going backwards would be a problem, but actually I am a bit more positive than that. Covid has demonstrated to people that if they think innovatively, out of the box and in partnership ways they can get solutions that are quicker than they would have been before, so in the system as a whole there is a recognition that partnership has offered more. We will all retrench as the world moves on from where we are, but there is real learning from covid on which we can capitalise. Many systems have done reviews of what worked and why, looking for the silver linings in that learning. I think the Bill goes with the analyses that have come out.

Louise Patten: At the NHS Confederation, we have that sort of umbrella view. We must not forget that, on collaboration and integration, people have been working to this for some time. There are some great examples of it, and this legislation moves that opportunity to really accelerate it. People recognise that it is a tight timescale, but they are absolutely committed to doing it.

[Edward Argar]

Thank you both very much. No more questions, Mr McCabe.

[The Chair]

Dr Whitford, did you have anything else?

--- Later in debate ---

[Justin Madders]

Q I have one more question, Mr McCabe. One of the consistent points we have heard from witnesses is that they are not convinced that the provisions in the Bill on workforce are sufficient to deal with the workforce challenges that the NHS faces. Would that be something that you feel is also the case for mental health professionals?

Andy Bell: This is incredibly difficult. We have some very ambitious plans now—the NHS long-term plan ambitions for mental health. There is, quite rightly, an awful lot of money going into that, because we have a very big gap in our ability to meet people’s needs. The only way that is going to succeed is if we have a very significant expansion in the mental health workforce.

We need to remember that that workforce is not just what people think it is. It is obviously nursing and obviously psychiatry, but it is also social work—a lot of really important mental health provision is in local government under social care. We need to think about the importance of advocacy and the importance of peer support, the importance of employment and housing rights workers, who we know make a big difference to people’s lives. There is also the key role of the voluntary sector in providing forms of support that may not come under traditional clinical headings, but none the less make a huge impact in people’s lives. We need to build the workforce.

The Bill gives some steps forward and summary assurances. In some ways, it is not quite the right place to be dealing with this. This is about whether the various parts of the system—the health education system, the NHS itself and its partners in local government—have the resources and the right ways to encourage people to come and work in mental health. It would be great to see the kind of recruitment campaigns we have had for the NHS as a whole to really help bridge that very big gap in the mental health workforce. At the moment, I think the Bill is probably neutral on it. It would be good to see some stronger assurances, at the very least holding the Secretary of State to account for how they are achieving the workforce ambitions set out in the long-term plan and future policies that will have to come.

[Edward Argar]

Q Good afternoon, Ed and Andy. Andy, in my first question, can I pick up on something you said there, before I broaden out to a question to you both? You talked there, quite rightly, about the importance of parity of esteem for mental health. As a local councillor years ago, I saw how important local councils and the NHS working hand in glove on mental health provision is, because if we get one half right but not the other half, it just does not work.

Building on what you have already said about the legislation, what would you identify as the opportunities of the legislation, if properly implemented or interpreted in the right way, for furthering that linkage and that joined-up mental health provision? Obviously, that goes beyond local council services and the NHS. There are a whole wraparound series of services that impact on someone’s mental health. What do you see as the opportunities in the legislation that we either need to draw out further or at least not lose sight of?

Andy Bell: This is about building real, sustainable, long-term partnerships. One of the things I know colleagues in the NHS and local government find very frustrating is that they just find a way of working with each other and then the legislation changes again and they have to start all over, so it is about having a system that actually works and stays working, that builds on the best of what is there already. I think there is some frustration in places where they spent a long time building relationships between clinical commissioning groups and local authority colleagues, sometimes with jointly employed staff, and now they have to start all over again because we are moving to a different thing. That will be immensely frustrating for many folk.

If we take the principle that this is about integrating care and equal partnerships between different players, including the voluntary and community sector, and if we give that time to work, we will enable partnerships to form with a clear voice for people—for example, in the case of mental health, for people living with mental health difficulties—so that decisions are being made with and in partnership with the people who use them rather than remotely by professional experts on their own.

Collaboration is incredibly important too. One thing we really welcome about the Bill is that it is moving us away from a system of competing providers to providers working collaboratively—literally, in providing collaboratives. There is a slight risk that all the power will be vested in one organisation and there will not be that check and balance between commissioner and provider. But some of the early provider collaboratives working in children’s mental health services that we have looked at have made really huge strides really quickly to reduce, for example, the number of children forced to go to hospital outside their local area in a mental health crisis. They have come together, looked at what support is needed for children in a crisis and put community services, in particular, in place to achieve that.

One further thing that will be important is that there is some positive provision in the Bill to ensure that ICBs—I think it is ICBs, yes, it is—have to take into account inequalities in access and outcomes. That is great, but there is not that requirement to pay attention to inequalities in health and to go out and identify which groups of people are experiencing health inequalities and what the system can do to deal with that upstream rather than waiting for people to need formal healthcare. That would be the other part that would really help in the Bill—to build on some of the positive noises and moves in the right direction in collaborating at the level of prevention and on the things that determine our health as well as in the provision of services when things have reached a point where people need care.

[Edward Argar]

Q In the two and a bit minutes I have, in order not to get cut off by Mr McCabe, I will direct my question to Ed and will bring you in, Andy, if I have time. We have heard about how what is proposed in many ways enhances local accountability and local authority involvement in decision making, but to go back to your earlier comments, would it be fair—you are entirely entitled to say that it would be unfair, and that I am misinterpreting—to say that alongside that your request was a request that in enhancing that we should not lose the local accountability mechanisms and processes that have already grown up over the years in local authorities, be that health and wellbeing boards, joint overview and scrutiny committees, or whatever? Is that a fair characterisation? Feel free to correct it.

Ed Hammond: Broadly speaking, yes, that is fair. My central point would be that those structures and the opportunity that local government has through this Bill for more direct and active involvement in health and care decision making are good, but there still needs to be that separate independent source of accountability that we feel sits properly at a local level with democratically elected local councillors who have powers through health scrutiny committees to talk to local people about their needs. That needs to be there and needs to be strengthened. In respect of the Secretary of State powers I was talking about, my worry would be that we would see ICBs and ICPs looking over their shoulder at what the Secretary of State might want to do rather than looking down to local communities to understand where local need lies, with decision making being led somewhat by what people think national priorities should be.

Part of the solution to that problem is the things we have proposed around, for example, requiring the Secretary of State to consult with local scrutiny committees before exercising those powers, having the powers for local scrutiny committees formally to escalate things to the Secretary of State to act on, and what we have suggested for more effective joint scrutiny by multiple councils of the ICB at system level as well. Those are all part of that strength and accountability framework. It is about saying, “Okay, we have involved local government in decision making through the ICPs and through continuing the health and wellbeing process, but in doing so we also have to enhance and build on our existing health scrutiny arrangements.” As things stand, the Bill removes elements of those by removing the power of referral. It is about having a balance of accountability arrangements and ensuring that that strong external accountability continues.

[Edward Argar]

Thank you.

[The Chair]

We had better leave it there. We are out of time. I thank you, Andy and Ed, for your evidence today.

Examination of Witness

Sir Robert Francis QC gave evidence.

--- Later in debate ---

[Alex Norris]

Q Thank you.

We will move on to something else that you said in your written evidence. On Tuesday, we had a very good conversation about data, but the whole thing was about quantitative data. In your written evidence, you talk about qualitative data, and it is very easy for us, as Members of Parliament, to conceive of the importance of that, as it is something that we routinely draw on. With your insight from leading Healthwatch, how can we develop systems that properly trap that, use that and prioritise that just as much as the quantitative data?

Sir Robert Francis: Technically, these days, that is no problem at all. You will not expect me to explain that to you, but the qualitative data—comments from the friends and family test, or similar things—is easily mined these days. You can develop a view of the sentiment that comes through it, and you can then dig down more closely into specifics if you need to. That information is extremely valuable to Healthwatch in determining what people think about a particular subject or services, and we feel that there should be a recognition that that data, in that form, should be capable of being shared with a statutory body like Healthwatch, and possibly others.

We also think that—I am sure others might agree—while quantitative data is extremely important, it is informed by qualitative data. The personal impact—good or bad—of things that happen in the service are best described by the people who have received that service. If you just look at figures—I am afraid that this was a problem at Mid Staffs—you lose a great deal, and the trigger for change and improvement is lost.

[Edward Argar]

Q I will try to be brief in the five minutes that we have left. Sir Robert, I have two questions: one with your Healthwatch hat on; and one in your personal capacity—and also as an eminent lawyer.

We sought with this Bill to be permissive rather than prescriptive; behaviours, and how things work on the ground, are often as, if not more, important than the framework. Notwithstanding your on-the-record comments about Healthwatch participation in ICB levels as a formal member, what else would you draw out as opportunities within the framework to build on patient participation and accountability to those who pay for, and use, the service? Are there other opportunities, that, with a small tweak either in guidance or in the Bill, we could seize more effectively?

Sir Robert Francis: I suspect that there is something around reporting, particularly with the oversight of quality, inequalities and matters of that nature, which would be of assistance. I agree that flexibility of engagement is really important, and Healthwatch claims no monopoly over this. I see it taking place in guidance. If the emphasis is to change culture to one where the service is being responsive to people’s needs, as opposed to providing them with what the service thinks they need, there could be greater emphasis in the Bill on ensuring there is a strategic plan for engagement. There could be more emphasis on how the ICS is going to engage with local people and communities, and an actual requirement that it provides comprehensible information to the community about how people should be able to communicate with it. I know they sound like matters of detail, but if there is an obligation to make such things clear, it does not prevent flexibility, but it does oblige organisations to actually do it—and mean it. There will be lots of other ideas, I am sure.

[Edward Argar]

Q That is useful, and builds on your written evidence. What do you think in a personal capacity? This builds on Dr Whitford’s questions and acknowledges Keith Conradi’s preference that the safe space be not qualified. If one accepts that it is qualified in respect of aspects of the judiciary—he acknowledged in those circumstances that he would accept that—would you consider that a High Court judge is probably the most appropriate person to make such a judgement on whether something should be taken out of the safe space and made available to a coroner?

Sir Robert Francis: In relation to a decision of whether information should be capable of being used in legal proceedings, there is no better qualified person than a High Court judge—so, absolutely. My advocating that there should be some qualification in relation to the family does not mean, in any way, that I suggest they should then be able to use that for litigation or other purposes. Indeed, some of the conditions you might impose on them in order for them to get the information are that they do not do those sort of things. There will be areas where it can be said that it is too sensitive for that. Of course, there may need to be a balancing of people’s rights of privacy. It is really about ensuring that families feel that they are not being excluded or that something is being hidden from them. We need to build trust. I do not think that that decision needs to be taken by a High Court judge, because it is not about legal proceedings; it is about something really quite private.

[Edward Argar]

That is extremely helpful, thank you very much.

[The Chair]

Thank you, Sir Robert.

Examination of Witnesses

Stephen Chandler and Gerry Nosowska gave evidence.

--- Later in debate ---

[Jo Churchill]

Q Thank you. Gerry?

Gerry Nosowska: Prevention is always undermined by the resources moving into urgent and acute needs. In practice, social workers are not able to do therapeutic, restorative support work that they would be able to if they had the time to spend with people who need that. There is a fundamental resource issue that the Bill does not address directly, but it may help with the potential for pooling resources. Again, people in the community do not care whether it is a health or social care resource. If there is a need emerging that can be responded to, and preventive work can be done, it should happen without health and social care arguing about exactly whose purse it comes out of.

There are some really successful examples of reablement and preventing avoidable hospital admissions. We know it is possible. Scarcity does breed competition rather than collaboration, so that is something to think about. As for what the Bill might also do, the partnership strategy ought to have a very strong preventive element to it, and that needs to be dug down into locally—into particular communities, neighbourhoods and streets. That is where you really need lived experiences. I have a question about the regard that the integrated care board would have to that, and the potential for a wonderful, collaborative partnership strategy around prevention to be disregarded because of an acute need. I was listening to Robert Francis, and I think his suggestion that there be a written explanation to a local community if that happens is very good.

[Edward Argar]

Q Just one question to both of you, if I may. First, thank you for all that you and your members have done and continue to do. I say that as a former council cabinet member for adult social care and health and public health. I know the shadow Minister will share that sentiment. When I was doing that job some years ago and I was not quite so grey, the director of adult social services with whom I worked was a lady called Marian Harrington, who had been working in adult social care for a long time. A key point that she always emphasised to me was the importance of a close working relationship between the NHS locally, social care and the local council, particularly on discharge, but also on the ongoing care of people with multiple needs who were receiving social care. She would always say to me that although the framework was important, equally important were the culture, the behaviours, and trusting relationships between organisations in the framework.

I will turn to Stephen first and then to Gerry. We have sought to be permissive rather than prescriptive in this Bill. Have we struck broadly the right balance, or are there areas where it might need to be tweaked, either in legislation or in guidance?

Stephen Chandler: Your director colleague was absolutely right. I think that you have got the balance right in relation to permissiveness. I worry that the guidance does not prescribe directly how we should develop that culture, but having worked as long as I have, I realise that you cannot prescribe how relationships are formed and how cultures work. You have to create the conditions for success. Some of those conditions are in the Bill. I have talked about some of them in relation to the pooling, the boards and the assurance methodology. What has to be absolutely clear—and I am hearing it clearly, so it is not that I have not heard it—is the importance of seeing this as a vehicle for meaningful change to people’s lives, not a restructuring of health and social care. Rather, this is a vehicle for improving the lives of people in communities and systems, and for allowing health and social care professionals to maximise their individual abilities for that collective good. In a way, there is a duty on me as a leader in the system to create that culture and environment.

You have not gone into the area of assurance, but for me it is really important that when assurance looks at a system, it looks at the leadership and how that leadership translates the freedom, the permissiveness, but also the accountability, clearly. The feedback I am hearing from our members is, “We favour the permissive approach that is taken in this.” We would not say that the tolerance should be changed one way or the other.

[Edward Argar]

Gerry?

Gerry Nosowska: Apologies, I think I lost my connection for a moment, so I might repeat some of the things that Stephen said. On the balance between permissive and rigid, we have an interest in the consistency of opportunity and outcomes for members of the population. Areas face different challenges, so it is important that locally there is flexibility around how those challenges are met. What will hold those models together are the principles of ensuring transparency around decision making; the involvement of lived experience and clinical expertise in both social care and health; and real local accountability. Certainly, more local community decision making, planning and work, and less centralisation, is much more in tune with responding to the lived needs of people and their day-to-day priorities.

[Edward Argar]

Thank you, Gerry and Stephen. I have no further questions, Mr McCabe.

[The Chair]

May I thank our witnesses for their evidence? That brings today’s oral evidence sessions to a close. The Committee will meet again on Tuesday in Committee Room 14, with Mr Peter Bone in the Chair.

Ordered, That further consideration be now adjourned. —(Maggie Throup.)

Health and Care Bill (Fifth sitting)

Edward Argar Excerpts

Committee stage
Tuesday 14th September 2021 Public Bill Committees

[Justin Madders]

It is a pleasure to serve under your chairmanship today, Mrs Murray, and to serve on the Bill Committee.

The amendment was moved in my name and that of my hon. Friends. The Minister whom I shadow is helpful—we will see how helpful during the course of proceedings—and we start in a spirit of optimism. I am grateful for the support of my colleagues on the Opposition Benches who, between them, contribute some relevant and highly knowledgeable experience. They are all passionate, as we all are, about the national health service and the care system, which are the subject of the legislation.

With your indulgence, Mrs Murray, I take this opportunity to make a few short points about the general context of the legislation. First, this is an important Bill. It could easily have been two or three pieces of separate legislation, so it requires proper consideration. We have a concern about whether enough time has been allocated to deal with everything in the detail that we would like, but we will do our best to get through it. We intend to make our contributions short but relevant and, we hope, persuasive.

Secondly, we share the apparent desire of the Government to repeal the worst aspects of the disastrous Lansley Act. Many of our amendments will be directed at trying to ensure that, in doing so, the baby is not thrown out with the bathwater. Thirdly and finally, as stated by the chair of the British Medical Association in the evidence sessions last week, we remain of the view that the Bill is the wrong Bill at the wrong time.

The amendment seeks to define the composition of the board of NHS England to align better with what we see as the new requirements set out elsewhere in the Bill. In looking at the issue of who should be on the board, we all ought to agree that it should not be open only to the friends and relatives of Ministers. Board members in our view should be subject to more independent assessment of their value and must pass at least some fit and proper test to avoid obvious conflicts of interest.

The amendment would ensure that the key influences on the board come from public health, local government, the patients themselves and the staff, without whom the NHS does not exist. At this point, I take the opportunity to place on the record, as I often do, Labour Members’ thanks to those in the NHS who have been so magnificent, not just over the past couple of years but over many years. They deliver a service that is rightly a source of great national pride. They deserve a seat at the table, as do patients. The Bill does not do enough to amplify the patients’ voice. We will be discussing a number of amendments over the coming weeks by which we will hope to change that.

We also need to look at what NHS England mark 4 will be required to do if the Bill becomes an Act. Other parts of the Bill deal with the powers and duties of this new version of NHS England, originally the NHS Commissioning Board. It is, in many ways, the pinnacle of the reversal of the Lansley position. The new NHS England does not bear much resemblance to what was envisaged under the Health and Social Care Act 2012. That is a good start, but one aspect of the Lansley view—that the NHS requires some degree of operational independence—has been shown to have some merit. Every clock is right at least twice a day, and we have found the one piece of the 2012 Act that proved to be correct. We will discuss some amendments later on to limit the power of Ministers to interfere with those who we believe should be operationally independent.

The new NHS England is pretty much in place anyway, as a result of the actions of those managing the NHS over the last few years. They desperately and very innovatively at times tried to find ways to circumvent the edicts of the 2012 Act, while Ministers looked on passively. It has been an unusual and interesting passage of time in the history of the NHS. We have seen legislation simply ignored and Ministers have allowed that to happen. It is little wonder, given the experiences of the 2012 Act, that many of the NHS witnesses we heard from said they wanted as little prescription as possible. They have had their fill of prescription. We would differ, I think, on the level of prescription necessary in the Bill.

New NHS England will be an amalgamation of the old NHS England, Monitor and the NHS Trust Development Authority. It will commission some specialist services. It will be the regulator, regulating a market that no longer exists. It will performance manage both commissioning by the integrated care boards, which, for the purpose of brevity, we will refer to as ICBs, and the provision of services by trusts and foundation trusts. I am afraid that how that wide range of responsibilities sits with the role of the Department is as vague as ever. The ability of Ministers and others to interfere and micromanage depends on whether the rest of the Bill survives in its current form.

Above all, the board oversees the operational running of the NHS, shaped by the mandate, which gives the direction of travel. Perhaps the most crucial policy change is that new NHS England sits at the top of the system, based on the integrated care boards as the major commissioner of services. That means who sits on the board is highly relevant.

The explanatory notes and the Government pronouncements about the new integrated bodies strongly assert that the role is to drive the reintegration of the NHS, repairing the worst of the fragmentation caused by Lansley and, I hope, once and for all, ending the obsession with marketisation, which has been shown to be a failure. We need board members on NHS England who might be seen to be more in tune with the new philosophy of partnerships and collaboration—not markets and competition, not business leaders, hedge fund managers, marketing experts.

In the new world, we want the NHS to be bound by its core principles—comprehensive, universal, free and funded from general taxation. That is a topic that we may touch on later; it may also be discussed in other business of the House today. What should be valued in board members is that they have some record of commitment to those principles. They should have some claim to be aligned to the new values, which favour a stronger role for patients; the public to have influence; a view that the NHS is contributing to reducing inequalities, as well as improving wellbeing; and the greater alignment of NHS services with local government.

The current make-up of the board is, put simply, the chair plus five other non-executives, all appointed by the Secretary of State, and then of course the appropriate executive directors. This amendment deals only with the non-executive directors. Given the huge importance of the NHS, it is appropriate that the chair and at least some of the non-executive directors are appointed by the Secretary of State. We will concede that. In another world, perhaps they could be elected in their own right, but we will not be travelling down that road on this occasion. However, we cannot ignore some of the headlines over the last 18 months and the huge media coverage of quite blatant abuse of patronage in appointments in the NHS more generally in recent years. Cronyism, I am afraid to say, has become a default position, and we think that has to be challenged.

To be fair to past Ministers, the NHS itself can also appoint people for the wrong reasons, moving out disgraced leaders if they go quietly, only for them to re-emerge somewhere else in the system. If the NHS is an organisation—it is a stretch to use that term after the mess created by the 2012 Act—appointments should accord with the highest standards of fairness, and inclusion is notably absent, so let us change the approach. Let us set the tone from the very top and enshrine in law the kind of people whom we as a Parliament would like to see—not, of course, specifying individuals but setting out in general terms some of the main interest groups that contribute towards the NHS and that we think should be at the very top table.

The amendment therefore seeks to give some direction to the Secretary of State in making these appointments and to ensure that at least one non-executive director is put on the board through a genuinely independent process and is not simply placed there by the Secretary of State. The kind of representative appointments that we set out in the amendment should, in our opinion, really be the standard. We would hope to see a similar standard adopted for the ICBs. We should appoint people who can really contribute to the future, with direct experience across the board in terms of the integration that the Bill seeks to achieve. The amendment also sets out how the Secretary of State must appoint suitable people and be able to justify their appointments against some sort of standards.

I hope that the Minister will at least acknowledge that some of the recent questionable behaviour around appointments needs to be addressed. No doubt he will refute the allegation of cronyism, but he cannot deny that there is at least a very strong perception that that is what has happened with some appointments.

In conclusion, I draw attention to how the NHS has already, effectively, blatantly put up two fingers to this Committee and anything we might decide, because it has already decided for itself how it will appoint people to roles within the new integrated care boards and has appointed some already, with the remaining positions, as we have seen from newspaper headlines, up for advertisement. That does not actually do us any favours, because Parliament has not decided that that is what we want to do, but we will see whether we get to that point later. That is all I have to say on the amendment.

[The Minister for Health (Edward Argar)]

It is a pleasure, once again, to serve under your chairmanship, Mrs Murray. I fear—predict—that there will be occasions when the shadow Minister, the hon. Member for Ellesmere Port and Neston, and I may not be entirely of the same mind, but it is a pleasure, as always, to serve opposite him on this Committee, because I know that even where we may disagree, the debate will be measured and reasonable. I will address the amendment tabled by the shadow Minister and, in the same speech, clause 1 and schedule 1 stand part if that is appropriate and in order.

As has been the practice on numerous occasions in these Committees, I will start by expressing a view shared by all members of this Committee. It has already been expressed by the hon. Member for Ellesmere Port and Neston, and we join with him in expressing our gratitude to those who work in our NHS and in care services and—as he and I have often said in this place—all those, including in local government, who work in this space and have done amazing work over the past year and a half particularly.

As ever, the hon. Gentleman picked his example carefully in citing some of the witnesses whom we heard in oral evidence. As he will know, the overwhelming majority—possibly with only two exceptions—stated that this was the right Bill at the right time, albeit they may have picked up on particular clauses or elements. They did state that this was the right time for this legislation.

As the shadow Minister has set out, amendment 18 in his name and those of his hon. Friends seeks to make changes to the make-up of the board of NHS England, the provisions for which are currently set out in schedule A1 of the National Health Service Act 2006. It also outlines conditions that should be met in relation to the appointment process. I share his view that it is vital that robust governance arrangements are in place for overseeing public appointments. It will not surprise him that I refute his assertion that in the case of NHS England board appointments there is a so-called cronyism or a suggestion that any of those people are appointed on anything other than merit. However, I believe that those strong and robust governance arrangements are already in place for managing appointments to the board of NHS England. Those appointed already are deemed to be fit and proper people to hold those appointments.

The existing provisions, which the shadow Minister alluded to, setting out the membership of the NHS England board in the National Health Service Act 2006, provide the flexibility required for the fully merged NHS England to lead our more integrated health and care system. The clauses we will be addressing this morning in this part of the Bill reflect the evolution of NHS England and NHS Improvement and what has happened on the ground since they were originally formed. With this, we seek to create a legislative framework that catches up with where they are and is permissive, rather than prescriptive. That is something else the hon. Gentleman and other members of the Committee will have seen from the evidence sessions. Witnesses were clear that the Bill struck the right balance between permissive and prescriptive.

As we look to continue the fight against the covid-19 pandemic and, in parallel, prepare for the recovery of our health and care system, it is imperative that the most suitably experienced and knowledgeable candidates are appointed to the Board. I know the shadow Minister will share that sentiment. Unlike appointments to integrated care boards, the appointment of the chair and non-executive members of NHS England are rightfully public appointments made by the Secretary of State and managed in line with the governance code for public appointments and regulated already by the Commissioner for Public Appointments. The appointments are made on merit in a fair, open and transparent manner and in line with that governance code. They also require due regard to ensuring they properly reflect the populations they serve, including a balance of skills and backgrounds, supporting the Government agenda of promoting more diverse public sector organisations and board appointments.

The role of non-executives on public bodies includes helping set the strategic direction for the organisation, ensuring the organisation meets the highest standards of good governance and holding the executive to account for day-to-day business delivery. They come from a variety of backgrounds and bring a valuable range of skills and experience to a board position. It is important to note that they are not routinely or normally appointed to be representative of a particular sector or group. They are on the board in their own right and their independence in that context is paramount.

All public appointees are expected to uphold the standards of conduct set out in the Committee on Standards in Public Life’s seven principles of public life, as included in the code of conduct for board members of public bodies, and they must adhere to that. The code sets out clearly and openly the standards expected from those who serve on the boards of UK public bodies and includes a clear process for managing any conflicts of interest. The Commissioner for Public Appointments regulates those appointments to ensure they are upholding the values of that Government code and works with Government to encourage candidates from a diverse range of backgrounds to consider applying for such public appointments.

Finally, while I share the shadow Minister’s view that it is hugely important to have diverse representation on the board of NHS England and to ensure that diverse voices and viewpoints are reflected, the duty under section 13H of the 2006 Act already requires NHS England to actively

“promote the involvement of patients, and their carers and representatives”

without the specific need for a named non-executive patient representative. It is clear that comprehensive processes and codes are already in place to regulate public appointments such as those we are discussing in the context of clause 1 and amendment 18, as well as schedule 1, including on diversity, conflicts of interest and conduct in office. I emphasise once again that the role of non-executive members is not that of representing a specific or particular sector, which could be at odds with the independent and broad approach they are required to bring to the role.

I now move specifically and briefly to clause 1, which changes the legal name of the NHS Commissioning Board to NHS England, and also to schedule 1, which contains consequential amendments where the changes will take effect in another Act. Since 2013, the NHS Commissioning Board has been operating under the name NHS England, and I think it is fair to say that that is how all of us in this room, and the public, know it, rather than by the slightly clumsy name of NHS Commissioning Board. This move reflects what the public already regard as the body’s name. The organisation, including the new functions provided to it by the Bill, will continue to operate under the name NHS England; this clause aligns the legal and technical name with the operational and publicly used name for clarity, and updates associated primary legislation.

--- Later in debate ---

[Karin Smyth (Bristol South) (Lab)]

I support the words of my hon. Friend the Member for Ellesmere Port and Neston. The Government would be wise to take note of the proposal. As my hon. Friend said, many hours, days and weeks have been spent by not only Members of Parliament, but expensive lawyers and lots of concerned constituents across the country, arguing—as I have often thought myself at times—a slightly nuanced point, which is lost on people. I have absolutely been persuaded, however, that it is important to restore that duty. If the Government are rightly binning the Lansley Act, the amendment is an obvious one to consider and accept, as it puts the duty absolutely beyond doubt.

Running throughout the Bill, as we will discuss over the next few days and weeks, is a real problem of clarity and accountability. We should not let the Bill out of this place while it leaves that lack of clarity on duties, responsibilities and accountability for the NHS to decide, along with local government. There is a balance between permissiveness and diktat, and starting with clear duties on the Secretary of State would help. Later, we will discuss how the Government seem to want to give the Secretary of State enormous power to interfere in the most minute aspects of healthcare in our constituencies, something that concerns a great many people, organisations and the NHS itself.

If the Government are serious about rehabilitating themselves as the supporter of the NHS following the Lansley Act, an amendment to clarify that absolutely central role would be a wise thing to accept.

[Edward Argar]

Amendments 36 and 37 and new clauses 20 and 21 are in the name of the shadow Minister and his colleagues. I do not believe that what is being proposed reflects the reality of the role of the Secretary of State or what it should be, which is a strategic oversight role with the ability to intervene when necessary to ensure accountability. The hon. Gentleman might correct me, but I think he cited Mr Lock, who said that there was no substantial change in practice. That goes to the heart of why I am unpersuaded by the amendments.

As the hon. Gentleman knows, the idea that the Secretary of State himself provides services has not reflected the reality of the structure of the NHS for many years, not least since 2003-04 with the introduction by the Labour party when in government of foundation trusts as independent entities in the health system. That purchaser-provider split, long established in the NHS and retained in the Bill, allows some of the health services in England to be provided by those such as NHS foundation trusts, which are legally distinct from the Secretary of State.

In the years since those changes, and as the many vigorous debates in Parliament since and during the passage of the 2012 legislation have demonstrated, there has rightly been no loss in the strong sense of governmental accountability for the NHS felt by Governments of all parties and by parliamentarians. As the proposers of this group of amendments have themselves been among the most eloquent and capable colleagues in holding Ministers and Government to account for the NHS, I find it slightly strange that they feel that their amendment is necessary.

At the time of the 2012 Act, as the shadow Minister alluded to, there was a great deal of debate in the other place on the value or otherwise of this wording. Eventually, the noble Lords concluded that it was better for the law to reflect the reality of the modern NHS. However, it remains the case that the Secretary of State has a firm duty to continue the promotion in England of a comprehensive health service in practice. He does this through setting the strategic direction and his oversight of NHS England and the other national bodies of the NHS, and in the future, subject to debates in this place—I do not want to prejudge what the Committee and the House may determine on those clauses—through the extra lever of the proposed power of direction. At all times, he remains responsible to Parliament for the provision of the health service in England.

NHS England also has a duty to arrange for the provision of services for the purpose of the health service in England and a concurrent duty to promote a comprehensive health service. Integrated care boards will, subject to parliamentary approval of the Bill, also have functions in relation to arranging the provision of services.

I understand the point that Opposition Members are seeking to make with the amendment, but it is entirely unnecessary as law. The Secretary of State has the duty to promote the competence of the health service in practice. He is accountable to Parliament for the comprehensive health service, and I believe that local NHS leaders and NHS England are best placed to know what is needed to serve individual communities.

This goes to the heart of what I suspect will come up a number of times in our debates in this Committee, which is the extent to which the legislation should be prescriptive, or permissive and flexible. I suspect the shadow Minister and I will disagree on where the balance should lie, in a number of areas. We believe that the Bill strikes an appropriate balance.

The shadow Minister talked about flexibility in redefining the boundaries of what the NHS does. Throughout the history of the NHS, there have been tweaks along those lines. The Labour party introduced charges for glasses and dentures; the Conservative party introduced charges for prescriptions shortly afterwards; the Labour party abolished them, and then reintroduced them two years later. I use those examples because I think we should be wary about being overly prescriptive in primary legislation.

Clause 2 makes a number of amendments to the power allowing the Secretary of State to require NHS England to commission certain prescribed services. It ensures that the Secretary of State can still require NHS England to commission specialised services and facilities, but recognises that aspects of the commissioning might be carried out by other NHS bodies through joint or delegated working arrangements or by directing integrated care boards to provide those services.

Specialist services are commissioned to support people with a range of complex and rare conditions. Those services could involve the treatment of patients with rare cancers, genetic disorders, and complex medical or surgical conditions, for example. As such, it is right that NHS England has overall responsibility for the services and can decide whether they might be better delivered through joint or delegated working arrangements or through directions to ICBs—I am happy to adopt the shadow Minister’s suggested shorthand, otherwise we will be taking a very long time repeating the same words on multiple occasions.

The clause also removes the requirement of the Secretary of State to consider the financial implications for CCGs—to be replaced with ICBs—when requiring NHS England to commission certain services. The change focuses the decision about categorisation of specialised services on the complexity and impact of the service and the ability of ICBs to support commissioning services for their populations, reflecting the fact that ICBs are significantly larger than CCGs and, correspondingly, so are their financial resources. In some circumstances, NHS England may request that a service is no longer nominated as a specialised service or facility—that could be used, for example, as the technology improves and it becomes more appropriate for it to be commissioned by an ICB instead. The clause inserts a new provision in the NHS Act 2006 which requires the Secretary of State to provide reasons for any refusal to requests from NHS England to revoke provisions requiring NHS England to commission specialised services.

I therefore encourage the shadow Minister not to press his amendment to a vote.

[Justin Madders]

I am grateful for the Minister’s comments, not least the promotion he inadvertently gave me by referring to me as shadow Secretary of State. We should have a Division on that, should we not? I understand what the Minister is saying, but our aim with this amendment is to reflect the new reality. No one has really got to the bottom of why the wording came out in 2012, but we are clearly moving back into a pre-Lansley era and the end of the marketisation, so we should go back to the previous wording. In terms of the services and duties in our new clause 21, I do not think the Minister said he disagreed that any of them should be provided. I am trying to do him a favour here and help him to avoid the Bill being bogged down in the Lords. If it comes back in ping-pong, we will quote the relevant new clause and say, “This is something that could have been avoided.”

I understand that the Minister does not want to be too prescriptive. He is right that the Bill will centre largely on the right balance between permissiveness and prescriptiveness, and we will no doubt have disagreements on that. I have tried to be helpful to him, but he does not want to accept that assistance on this occasion, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.

Clause 3

NHS England mandate

--- Later in debate ---

[Karin Smyth]

I echo the comments of my hon. Friend the Member for Ellesmere Port and Neston. The mandate is important. It is awaited by clinicians and managers in the health service as it affects how they are to operate in the forthcoming year. Often guidance arrives the week before Christmas, as I remember from my time in the NHS, so we were starting to plan for the very short term, which really is unhelpful. It is a regular statement intent, and it is a way in which the public can see what is happening or is due to happen to their services.

My hon. Friend the Member for Ellesmere Port and Neston quoted from the King’s Fund’s written evidence, which mentioned the

“multiple plans and strategies in each ICS”

and the need for a “more ‘local’ place level”. As we heard in our evidence sessions, this is already a very confused picture, and one that we are going to try to navigate our way through. Although I do think that there should be greater permissiveness, so long as it is accountable at local level, the mandate gives us a degree of accountability at national level, on the Government’s intent, published in their stated aims, and that gives the general public and taxpayer confidence.

On our amendment about 18 weeks, that target was often criticised as not being clinically referenced. It was brought in after the then Conservative Government talked about an 18-month target being highly ambitious for people waiting to be seen clinically—some of us are old enough to remember those dreadful days, to which we have returned. Now, we could argue whether 18 weeks was the right number, but it was something that drove up standards of care, and it meant that the NHS said to the taxpayer, “We accept that you deserve a better standard of care and treatment, and it is completely unacceptable to be on a waiting list for 18 months to two years”—it was often longer. It focused minds, drove service redesign and made clinicians go back over their lists, because if someone has come on to a list two and a half years earlier, many things would have happened and, sadly, in many instances that person would have died.

By supporting our amendment, the Government would show that they are ambitious for the NHS and the people it serves. If the Minister is not prepared to support that 18-week commitment, what is acceptable to the Government? We and all our constituents know that waiting lists were rising out of control before the pandemic, and that the target had not been met for several years. Clearly the pandemic has exacerbated the situation, but let us be clear that targets not being met was a pre-pandemic problem.

We hear utterances from the Government in the newspapers about what they think about the targets—“nonsensical” is what the Secretary of State said at the weekend. The targets were put in place to give people confidence that their taxes were funding a service that they could hold to account in some degree, and it drove some positive behaviour. It will take a massive effort to get waiting lists down, so what discussions has the Minister had with clinicians and managers about the loss of targets? Why would he not support putting that target back in the Bill? The long waiting lists are miserable for everyone concerned. They need to be published. We need to let people know what they can expect from our service. I strongly urge the Minister to accept the amendment, or at least its intent. If he is not prepared to do so, what does he think is an acceptable length of time for people to be on a waiting list?

[Edward Argar]

The hon. Member for Ellesmere Port and Neston is having a good day; I promoted him to shadow Secretary of State and I think the hon. Member for Central Ayrshire made him a member of the Privy Council, so he is doing well this morning. Although we may resist many of his amendments, I take the point that he did not table them from a partisan perspective but genuinely approached them with sincerity. He mentioned that on a previous occasion the Bill Committee had to be run twice. Fond of him as I am, I think both of us would prefer not to have to do this twice together.

--- Later in debate ---

[Hywel Williams (Arfon) (PC)]

To encourage the Minister to accept the amendment, I point out that addressing health inequalities would coincide with the Government’s stated aim of levelling up, so there is a happy coincidence there that might persuade him. Health inequalities are reflected geographically, and large parts of the country clearly suffer from them more than others. That pertains to England, but were I standing in the Senedd in Cardiff, I would say the same about Wales. That is slightly off the point, but there we are.

[Edward Argar]

I am grateful to the shadow Minister and all other hon. Members who have spoken for the expertise that they bring to this debate. It is one of the quirks of this House that lawyers are hon. and learned Members and members of the armed forces are hon. and gallant Members, but we do not have an equivalent for those who serve in the medical profession. Perhaps we should think about that.

I am very grateful to hon. Members for bringing this debate to the Committee by tabling these amendments, which relate to the important issue of health inequalities, in the context of the new triple aim duty set out in the Bill. Even though we may not reach the same conclusions about the best way to do it, it is right that we debate this crucial issue in Committee.

With your consent, Mrs Murray, and that of the Committee, I will start in reverse order with new clause 13, and then work my way through the amendments of the hon. Member for Nottingham North. The new clause would place an additional duty on the Secretary of State to produce a report setting targets on the improvement of the physical and mental health of the population and the reduction of health inequalities.

I appreciate and understand the intention behind the hon. Gentleman’s new clause. He is right: health is the nation’s greatest asset. Preventing ill health, improving people’s health and wellbeing, and tackling long-standing inequalities are all fundamental to the economic and social strength of our country. However, the creation of a new statutory duty to set the type of target identified in the new clause is not necessary, in the light of the existing duties on the Secretary of State around improving public health and seeking to reduce health inequalities, as provided for in the 2006 Act. I may not agree with everything in it, but I pay tribute, where it is due, to the Labour party. Labour Members will hear a number of references to what is in that Act and to the retention of what is in that Act in many areas.

Of course, ICBs, too, have duties to have regard to the need to reduce health inequalities whenever they are exercising their functions, to promote integration where it would reduce health inequalities and to set out how they will tackle health inequalities in their plans.

I hope I can reassure members of the Committee that the Government are already taking strong action in these areas and that there are already a number of targets relating to improving the population’s health that cannot be met without addressing those underlying inequalities. For example—I know that this is something that the hon. Member for Nottingham North feels very strongly about—we cannot achieve our existing commitment to a smoke-free generation by 2030 if we do not address as a priority the needs of those people and populations with the greatest levels of need and help people to give up smoking. He is right, and this involves the Under-Secretary of State for Health and Social Care, my hon. Friend the Member for Bury St Edmunds. I suspect that when we reach the latter parts of this legislation that are about public health more specifically, this issue may feature, rightly, in the Committee’s discussions again.

To support our strategy to improve the population’s health and reduce health inequalities, at the beginning of October we will launch the Office for Health Improvement and Disparities within the Department. We have also announced that we will create a cross-Government ministerial group with a remit specifically to identify and tackle the wider determinants of poor health. Our broader focus on levelling up, to which the hon. Gentleman alluded, recognises the wide range of factors such as good jobs, homes and local environments in which we can take pride, alongside a range of other factors, that all support and interact with our physical and mental health.

In contrast, I fear that the new clause, although I can see its intent, could make it more difficult for us to swiftly focus on ensuring that such inequalities are identified and acted on. Had we a fixed, five yearly set of targets to work towards, I fear that it would introduce more rigidity, rather than the agility and flexibility that we seek in meeting the changing assessments of what underlying health inequalities must be tackled as a priority. I hope that I can persuade members of the Committee, although perhaps not all of them, that a five-year fixed plan is potentially inflexible and is not necessary in the context of this legislation.

I turn now to the amendments that relate to the duty known as the triple aim. Amendments 21, 23 and 25 would add a fourth limb of tackling health inequalities for NHS England, ICBs and NHS trusts. As I have stressed, we do recognise the importance of tackling health inequalities, but again, we do not feel that the amendments, however well intentioned, are necessary. As we have discussed, there are existing statutory duties on bodies in this area, many of which relate specifically to health inequalities. NHS England and ICBs will have to have regard to such duties alongside the limbs of the triple aim. NHS England will also have to consider such duties when it produces the guidance on the triple aim.

The triple aim is compatible with and conducive to addressing health inequalities and furthering the delivery of these duties. Indeed, tackling health inequalities is a theme that runs throughout the duties. Having organisations consider the wider effects of their decisions will, we believe, encourage greater collaboration and engagement with communities on how best to meet their needs, which in turn will assist with tackling health inequalities nationally, but also flexibly at a local level.

The triple aim duty requires consideration of the health and wellbeing of the people of England. As the shadow Minister alluded to, that would also include consideration of the health and wellbeing of those who are not accessing health services. Similarly, it is a key element of the second limb of the triple aim—the improvement of the quality of services—to consider those areas where services are in most need of improvement. We expect guidance from NHS England to make clear how bodies can discharge the triple aim duty in a way that is fully commensurate with the reduction of health inequalities.

--- Later in debate ---

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

The clause places a new requirement on NHS England to consult and involve carers and representatives of those individuals to whom health services are provided when exercising its commissioning functions. NHS England is currently required to involve and consult individuals to whom healthcare is provided when carrying out its commissioning functions; the clause extends that existing requirement to consulting with their carers and representatives as well. We want to ensure that we have a health and care system that is accountable and responsive to the people who rely on it.

The clause recognises the immensely important role that carers and representatives play in supporting our health and care system, and ensures that our legislation remains in step with current practice within that system. I therefore commend the clause to the Committee and hope that all Members feel able to support it.

[Justin Madders]

I am sure we are all excited to get this one passed—I am certainly not going to oppose it. However, I have a couple of questions of clarification.

Health and Care Bill (Sixth sitting)

Edward Argar Excerpts

Committee stage
Tuesday 14th September 2021 Public Bill Committees

[Justin Madders (Ellesmere Port and Neston) (Lab)]

It is a pleasure to see you in the Chair this afternoon, Ms Elliott.

We were left on a cliffhanger before lunch. I was about to ask the Minister some questions. He might have preferred the advantage of having two and a half hours in between to think of an answer, but I am sure he will cope. Actually, it is a fairly straightforward question, so I hope for a fairly straightforward answer.

The clause refers to carers and their representatives. Will the Minister clarify who that is? Is that carers’ groups or, for example, someone who might hold power of attorney? That is really the only comment I wanted to make on clause 5.

[The Minister for Health (Edward Argar)]

It is a pleasure to serve under your chairmanship, Ms Elliott, I think for the first time in Committee.

To answer the shadow Minister briefly, I certainly envisage that the clause encompasses those with power of attorney, because in effect and in law they are the legal representatives of individuals who do not always have capacity to speak for themselves. In that context, I also hope that we will see carers’ organisations, as well as others who do not necessarily have power of attorney but act as advocates or representatives for individuals, having their views heard and taken into consideration. I hope that gives the hon. Gentleman some reassurance.

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.

Clause 6

Support and assistance by NHS England

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

The clause confers a power to provide assistance and support to NHS foundation trusts, NHS trusts and other persons providing services as part of the health service in England to work to secure continuous improvement in the quality of the provision of such health services and their financial sustainability. That new power replaces a range of existing support functions sitting with NHS England and the NHS Trust Development Authority. In particular, it replaces the function of the NHS Trust Development Authority to take steps to assist health service providers as conferred by directions. It also replaces the existing power of NHS England to support clinical commissioning groups and primary care providers, which enables NHS England to provide direct financial support to integrated care boards and providers within the scope of the provisions, and to provide other support and assistance to all those bodies exercising functions within or part of the health service.

The clause is an example of the positive improvement that the merger of NHS England, Monitor and the NHS Trust Development Authority will bring to the health service. It will allow NHS England to take such steps as it sees as necessary to identify and address areas of concern early, while also providing support to leadership and guidance where required to shape the services that are delivered for the greatest benefit of patients. I therefore commend the clause to the Committee.

[Justin Madders]

The Opposition will not oppose the clause, but I have one or two queries that we hope the Minister will be able to answer. Obviously, it is a broad power. I assume that the reference in proposed new section 13YA(1)(a) to “person” relates not just to individuals. Perhaps the Minister will expand on what that is meant to cover.

Also, specifically, at proposed new subsection (3), on integrated care boards and the provision of financial assistance, as we remember from the evidence sessions, there was not a great deal of clarity about the costs that NHS England anticipated might be incurred as a result of the legislation. Will the Minister assist us by providing some estimates of that, as well as whether the powers under clause 6, including the financial assistance, are subject to any limits or reporting requirements back to the Secretary of State, and whether Parliament would have a role in that at any point?

Proposed new subsection (2) talks about providing

“employees or any other resources of NHS England.”

The Minister said that “employees” could include secondees. I think it is clear from the guidance that certain roles on the ICB should not have any, for want of a better description, conflicts of interest or hold any other roles within the wider NHS. I want to make sure that the Minister is clear that that requirement is not going to cause us any difficulties.

[Edward Argar]

I am grateful, as ever, to the shadow Minister for his succinct questions. I will try to address them all in turn. He referenced the term “person” in proposed new subsection (1). It is a legal definition. In the context of the services provided—I mentioned primary care—it could be a GP practice. Having gone through the drafting with officials, my understanding is that it is a legal term and does not alter what is currently possible.

I may take the questions slightly out of order, and I hope he will forgive me. On proposed new subsection (2), I think he was referring to subsequent new clauses and amendments he has tabled around ICBs, who the suitable persons to sit on them are and the management of conflicts of interest. I suggest to him that, given the amendments he has tabled, the most appropriate time to discuss those issues would be in the context of how we do or do not further refine the definitions around memberships of ICBs. The Committee will reach that on Thursday, I suspect. On reporting and transparency, I entirely share his view and reassure him that I expect transparency to play a key role when public moneys are spent this way.

Finally, on proposed new subsection (3) and the cost to the NHS and the Exchequer, no specific limits are stated in the legislation, but, obviously, any assistance provided would need to meet the purpose set out in the Bill and be transparently awarded. I hope that gives him some reassurance, but I am always happy to revert to him if he wishes to follow up on any detail—either now or in writing.

Question put and agreed to.

Clause 6 accordingly agreed to stand part of the Bill.

Clause 7

Exercise of functions relating to provision of services

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

I am getting my exercise today in bouncing up and down in my seat. Clause 7 enables NHS England to direct one or more integrated care boards to exercise certain NHS England functions and to fund the exercise of those functions. This relates to NHS England functions such as the commissioning of specialised services, health services in justice settings and armed forces settings, primary medical services, dental services, primary ophthalmic services, pharmaceutical services, and any of the Secretary of State’s public health functions that are exercisable by NHS England on his behalf. In future the intention is that ICBs be responsible for the majority of health service commissioning in England. This approach will ensure that decisions about services are made closer to the patient and in line with local population needs, enabling greater integration in the way that services are arranged and delivered.

Clause 7 ensures that NHS England has the appropriate powers to make sure we achieve our policy objective, by allowing flexibility for ICBs to take on these additional commissioning responsibilities as delegated functions from NHS England. We intend that this can be used by NHS England to delegate primary care functions while ICBs mature, before we transfer them fully to ICBs at the appropriate time using clause 16 and schedule 3, which we will debate in due course. This will allow NHS England to keep a closer watch on how ICBs are discharging these functions, and managing the transition, before they are fully delegated to and embedded in ICBs.

The Secretary of State will have the ability to make regulations under this clause, meaning that, where appropriate, certain conditions or limitations can be placed on NHS England’s power to direct ICBs, including the ability to prescribe functions that the power does not apply to at all. Any directions issued by NHS England under this clause must be published. I know that the transparency point is one that the shadow Minister has raised on a number of occasions, so I reassure him that they must be published ensuring that such directions are made transparently, and that responsibilities between NHS England and ICBs are clearly set out.

This clause is essential to give NHS England the flexibility, and the appropriate mechanisms, to delegate the commissioning of these services when the time is right to do so. Therefore, I commend it to the Committee.

[Justin Madders]

We will not be opposing this clause. Clearly, as the Minister has set out, it is necessary to enable the functioning of the health service.

I have one question about the powers under proposed new subsection 13YB(4), which are effectively prohibitions on the ICBs from delegating arrangements further. Will the Minister set out what circumstances are envisaged, if any, where this power may be necessary? There will obviously be delegations, not only to the services listed there, but to place-based organisations. In that situation, what does the Minister see the role of the ICBs as? Will it be the ICB itself that delivers those functions, or will it be another body?

--- Later in debate ---

In my experience, the evolution from the CCG was muddled and meant stasis for a long time in any development of those services. We want to avoid that, because some of those organisations will be ready to go now and some of them may never be ready. As my hon. Friend says, is that an acceptable position for the Government in this new area of local permissiveness?

[Edward Argar]

The hon. Lady is absolutely right about the importance of trying to join up different primary care services and the commissioning arrangements. There has been, under Governments of all complexions, a fragmentation in that, with some services commissioned nationally and others locally, and the Bill gives us an opportunity to create a more coherent, place-based commissioning approach.

On the specific point the shadow Minister asked about proposed new subsection (4) and the

“direction under subsection (1) to include provision prohibiting or restricting the integrated care board from making delegation arrangements in relation to a function that is exercisable by it by virtue of the direction”,

my understanding is that it is a pragmatic clause, basically limiting the ability to sub-delegate further. We would envisage this being a consensual and collaborative approach between us and NHS England in the region, and of course the Government would be guided by NHS England.

In the nature of having to make regulations in this House to do it, the wording reflects the fact that it will be the Government laying those regulations, but we would envisage that being guided and led by the NHS. As the hon. Member for Bristol South rightly said, the NHS region will often be the best place to advise on the readiness or otherwise of different ICBs at different stages in the process.

[Karin Smyth]

Would somebody be able to appeal to the Secretary of State if they disagreed with that delegation, for example?

[Edward Argar]

My understanding is that there is no formal right of appeal in this context. I suspect that dispute resolution and formal rights of appeal is something we will come back to in other contexts.

Clause 7 ordered to stand part of the Bill.

Clause 8

Preparation of consolidated accounts for providers

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

Clause 8 places a duty on NHS England to prepare, in respect of each financial year, a set of accounts that consolidate the annual accounts of English NHS trusts and foundation trusts. The transparency of financial reporting across NHS providers will be diminished without this provision, as the consolidated provider accounts collate the financial reporting of all NHS trusts and foundation trusts to give an NHS provider position that is laid before Parliament, and has been since the 2017-18 financial year.

In addition, NHS England has a duty to provide a copy of the consolidated accounts to the Secretary of State and the Comptroller and Auditor General, and a duty to lay copies of the consolidated accounts and the related report before Parliament. To ensure adequate financial scrutiny, the Secretary of State has the power to give directions to NHS England on the principles and methods to be applied in preparing the accounts and their content and form, and can direct that the accounts must be accompanied by any reports or information deemed necessary. The Comptroller and Auditor General must, as their responsibilities stand currently, examine, certify and report on the consolidated accounts and send copies of the report to the Secretary of State and to NHS England.

The provisions set out in this clause not only provide continuity to the system but place in law strong levels of oversight relating to both NHS trusts and foundation trusts. That ensures the transparency that we would all wish to see and the robustness of the process and procedures governing financial health at a local level. This clause is an important way of ensuring NHS England discharges its responsibilities as system regulator in delivering appropriate and adequate stewardship of the health system and, ultimately, public money.

[Justin Madders]

Again, we will not oppose the clause, but I have a query about the powers under proposed new section 65Z4(4), particularly in the context of what the Secretary of State said at the weekend about targets being a lot of form-filling and nonsense. It seems rather odd to give himself powers to direct trusts to provide any reports or information that he requires when, clearly, the Secretary of State gets all sorts of information and reports from the NHS at the moment. Could the Minister say what he is not receiving at the moment that he thinks the powers will allow him to ask for?

[Edward Argar]

I consider proposed new subsection (4) to be purely pragmatic, as there will be circumstances with individual trusts and situations where clarifications to accounts or data may be required. Therefore, it is prudent to give the Secretary of State the power to ask for further clarification. He will be accountable to Parliament for how the money is spent, so it is entirely appropriate that he has explicit power, given by Parliament, to ask for information over and above the de minimis specified in the Bill, to ensure he can be completely transparent with Members and the public more broadly.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.

Clause 9

Funding for service integration

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

Currently, one of the objectives of the Government’s mandate to NHS England—a process we discussed in Committee this morning—is that an amount of the annual sum paid to NHS England must be used for service integration. In practice, that must be contributed to the better care fund. The better care fund is the national policy driving forward the integration of health and social care in England. However, as we have discussed, other provisions set out in clause 3 will remove the requirement for a mandate to be published every year. As a result, the mandate will no longer be an appropriate vehicle for setting an annual ring fence for service integration. Therefore, the clause will put in place a new power to allow the Secretary of State to direct NHS England to ring-fence an amount of its annual allotment for health and social care integration through the better care fund, to continue the work of that fund and to direct it on how that amount should be used.

The change will have no impact on the operational policy intent of the better care fund; the provision will simply ensure the better care fund can continue to be set annually, notwithstanding changes to the mandate, which will not be made annually in the future, should this legislation be passed. The better care fund has enabled and improved co-operation between health and social care partners at local level. It is therefore important for it to continue. This clause ensures that that will happen, regardless of proposed changes to the mandate.

Further minor amendments are made to NHS England’s corresponding power to enable it to require that an amount of the sum paid each year to an integrated care board be used for service integration. That power exists currently in relation to clinical commissioning groups, and the amendment seeks to ensure that the better care fund continues to operate effectively once ICBs are established.

[Justin Madders]

Again, I will not detain the Committee for long: I just have a question for the Minister. The more we get into the Bill, the less permissive it appears to be. I have no doubt that will still be used by the Minister in defence against various amendments we will move later today. Given that we have been told that the role of ICBs is to direct health systems in their local areas, it is not at all clear what the situation is if the powers under this clause require them to set aside a certain amount of money for service integration, but doing so would mean a reduction in service elsewhere in the system. How would that dispute be resolved? Who would have the final say?

[Edward Argar]

As I made clear in my remarks, the clause does not so much direct ICBs specifically; it is primarily about setting aside an amount of the annual sum paid to NHS England to go to the better care fund, which is then allocated. This technical change will have no impact on the operation or policy intention of the BCF, and it should not have an impact on ICBs’ ability to operate. The intention is simply to make sure that as we move away from an annual mandate with an annual financial settlement for the BCF, we can still set an annual amount to go to the BCF so that it can continue its work, and for that to then be allocated to systems.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Clause 10

Payments in respect of quality

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

The clause removes the Secretary of State’s powers to make regulations about payments by NHS England to CCGs in respect of quality. We are not abolishing quality payments, but in future they will be made to integrated care boards rather than CCGs—hence the change. However, the current clause conflicts with clause 37—General power to direct NHS England—which provides the Secretary of State with broad powers to give directions to NHS England. Clause 10 removes the power to make regulations setting out the principles or other matters that NHS England must consider in assessing any facts in relation to payments to a clinical commissioning group. However, clause 37 will allow the Secretary of State to use the general power to direct NHS England if required, including in relation to quality account. That will give additional flexibility to shape quality payments in order to better incentivise quality, reflecting our priorities and changing circumstances.

I reassure the Committee—I am not sure whether the shadow Minister will take the reassurance, but he may do—that there is no intention to use these powers frequently, but they will ensure that we have a robust legislative framework that is flexible and responsive enough to support the health and care system in future, in the event that such powers are needed. If Ministers were to direct NHS England in this area, they would be required to do so in writing, ensuring that the direction is in the public interest, and to publish that direction. That will ensure transparency, so that Ministers can be held to account. I suspect that we might return more broadly to that underpinning principle when we come to debate further clauses relating to it in the coming days. I commend the clause to the Committee.

Question put and agreed to.

Clause 10 accordingly ordered to stand part of the Bill.

Clause 11

Secondments to NHS England

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

I have only a couple more of these clauses before the shadow Minister will have his turn with a few amendments.

Secondments can be an extremely useful way of bringing key expertise and resource into an organisation at short notice. We have seen the benefits of such a flexible approach in a number of organisations, including NHS England, and particularly during the pandemic. The clause builds on the practical importance of secondments and makes it clear how they can be used by NHS England, by amending schedule A1 of the National Health Service Act 2006, which sets out the constitution and membership of NHS England.

The Bill has given us an opportunity to provide NHS England with powers to appoint secondees across the organisation and use them in the same way as its own employees, and it allows secondees from specified NHS bodies and health arm’s length bodies to be appointed to NHS England’s board. The power to allow employees from specified NHS bodies to be seconded to NHS England and appointed to its board will allow those individuals to exercise NHS England’s functions on the board’s behalf, in the same way as other board members.

As we continue the fight against the covid-19 pandemic and, in parallel, prepare for the recovery of our health and care system, it is imperative that NHS England has access to the most suitably experienced and knowledgeable candidates for executive roles, and that those holding the roles be part of the important decisions that the system will face. The clause will assist NHS England in doing just that.

The clause also includes a regulation-making power, allowing the Secretary of State to make it clear that a reference to an employee of NHS England in the context of the National Health Service Act 2006 should include people seconded to NHS England, should that be considered appropriate in future. That power will ensure that the legislation assesses the continued effect of operation of secondment arrangements throughout NHS England. Any regulations—again, I hope that this offers some reassurance to the Opposition Front Bench—made under that power would be subject to the affirmative procedure in the House, so I commend the clause to the Committee.

[Justin Madders]

I will not repeat my earlier comments about secondees and ICBs, because we will pick that up later. In our evidence sessions, the role of the healthcare safety investigation body and its independence from NHS England was raised. Is the Minister comfortable that that role will not be compromised in any way by the requirements of the clause?

[Edward Argar]

I assume—and the hon. Gentleman will probably shake or nod his head—that in this context he is referring both to the Care Quality Commission and HSIB—[Interruption.] Yes, I am reassured and confident that the provisions in clause 11 will not impact negatively in any way on the ability of either safety organisation to conduct inspections and do the work that we envisage them doing. In the case of HSIB, we may return to that when we discuss the relevant clauses. I believe that what is proposed remains consistent with their specific roles, responsibilities and obligations and what we are seeking to achieve for patient safety.

Question put and agreed to.

Clause 11 accordingly ordered to stand part of the Bill.

Clause 12

Role of integrated care boards

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

The clause replaces section 1l of the National Health Service Act 2006, which sets out the general function of clinical commissioning groups, with new section 1l, which sets out the general function of integrated care boards. It provides, in a similar way to CCGs, that ICBs have the function of arranging for the provision of services for the purposes of the health service in England. As a result, ICBs will now be the new commissioner responsible for the majority of health service commissioning in England. Later clauses will set out the details of the services that ICBs are responsible for commissioning, but we intend that they should include those currently commissioned by CCGs and some that are commissioned by NHS England, as we discussed in relation to a previous clause, such as primary care, dentistry, pharmacy and optometry services.

The clause is crucial to establish ICBs as the new key commissioners for the NHS in England in future. Our proposals bring together leadership across the health and care system, and without the clause ICBs will simply not have a clear purpose. It seeks to manage effectively in legislation the smooth transition from CCGs to ICBs, and I commend it to the Committee.

[Justin Madders]

Obviously, we will spend time this afternoon discussing ICBs, so I will not discuss this clause in particular. I will draw attention to proposed new section 14Z26, especially the proposals in subsections (2) and (3) for integrated care boards, which effectively allow clinical commissioning groups to determine their own processes to consult on ICBs. We do not think that the consultation process has been adequate—indeed, it has been non-existent in some situations—but we will probably return to the question of ICB geography later in this sitting.

Question put and agreed to.

Clause 12 accordingly ordered to stand part of the Bill.

Clause 13

Establishment of integrated care boards

--- Later in debate ---

We need to thank the managers for the way they have worked, particularly over the pandemic. They have managed to go to extraordinary lengths to develop services. It does the Government and other politicians no credit not to recognise that, if the boards are going to work, they are going to need highly skilled people to balance all the competing interests and to make the best use of permissiveness. I think the Government are probably envisaging that they can just hand the mess over to them, but someone is going to have to make it come together locally. As local representatives, we are going to want to go and talk to somebody and to be able to hold them to account on behalf of our constituents. That is what we are seeking to do with further amendments today, and later in the Committee.

[Edward Argar]

I am grateful to hon. Members for their contributions on the amendment. I may disappoint the shadow Minister—I will not accept it. I hope he will let me address why and deal with some of the questions that have been raised.

The amendment would place a requirement on NHS England to consult relevant NHS trusts, foundation trusts, trade unions, patient representatives and local authorities before revoking or varying an ICB’s establishment order. We consider it unnecessary, because under clause 13, proposed new section 14Z25, NHS England is already required to consult any integrated care board that is likely to be affected before varying or revoking an integrated care board’s establishment order. Given that each ICB will have a strategic view of the health service and population needs in its area, and given that ICBs will have members from different NHS trusts and local authorities, we consider that they remain the best-placed bodies to bring those views together to reflect opinion on what is an appropriate boundary or establishment area.

Section 13Q of the NHS Act 2006 already places a duty on NHS England to involve and consult the public in the planning of commissioning arrangements, including in respect of any planned changes to commissioning arrangements. That includes, for example, if NHS England plans to change the range of health services available to the public or the manner in which they are delivered. That ensures the voices of residents and patients—those who access care and support—as well as their carers are properly embedded in decision making.

I draw the Committee’s attention to the requirement in clause 13, proposed new section 14Z26, for CCGs to consult any person they consider as appropriate on the first ICB constitution. That constitution will also be required to set out the process for making further amendments to the constitution.

Turning to the points raised by the shadow Minister and other hon. Members, the boundaries on which we are seeing the footprint put forward at the moment effectively reflect the evolution of STP and ICS boundaries to this point. They reflect local authority boundaries. By and large, the majority of ICS boundaries reflect one or more upper-tier local authorities. That was the criteria set by the Secretary of State. There are some exceptions, which I will turn to in a moment. I will also turn to the comments from my hon. Friend the Member for Eddisbury.

As the shadow Minister will be aware, the previous Secretary of State set out a process where he wanted a presumption in favour of coterminosity—the shadow Minister appeared to be supportive of that—unless there were exceptional circumstances in a particular area that justified an exception being made. The principle of coterminosity is something that was argued against, in some cases, by Opposition Members—not Front Bench spokespeople, as far as I am aware, but Back-Bench Members of Parliament—and by some Government Members, in respect of where there should be specific exceptions.

The process, which was touched on, was entirely consultative. Local authorities were fully involved in those discussions. The local NHS was fully involved in the discussions. There were also what could be referred to as cosy fireside meetings, involving Members from across the House, reflecting their right as Members of Parliament representing their communities to write to and engage with Ministers, to reflect their views. There was a multi-layered approach, with the local NHS and local authorities working together to come up with recommendations, and then Members of Parliament having the right, as all Members do, to lobby Ministers and put forward their perspective on behalf of their constituents. The approach was transparent, as my hon. Friend the Member for Eddisbury alluded to. We published a written ministerial statement, setting out for the House what had been decided, and we showed the flexibility and pragmatism that I think those consulted would wish to see.

In the areas where exceptions were made—the east of England areas and Frimley—contrary to what the hon. Member for Bristol South said, these are some of the most exceptionally high-performing ICS areas. That is one of the reasons why we decided not to go for coterminosity, because those systems are working well, with established relationships with local authorities, acute trusts and primary care. We took the view that we should not disrupt something that is working well—if it ain’t broke, don’t fix it. That will not stop it being reviewed in future, should the local system feel that that would be appropriate. That was a pragmatic approach to the issue.

My hon. Friend the Member for Eddisbury raised the issue of Cheshire and Merseyside ICS—I know that this will also be of interest to the hon. Member for Ellesmere Port and Neston, given the geography of his constituency. The ICS did meet the coterminosity test of one or more upper-tier authorities being coterminous, but I know that hon. Members on both sides of the House have raised concerns about its size and about the differences between Cheshire and Merseyside proper, and between different parts of the area, and suggested whether it should more appropriately be split into a larger number of smaller coterminous ICSs.

In a sense, the reason that split did not take place goes exactly to the heart of what the shadow Minister was saying, which is our determination to engage widely, consult local authorities and the local NHS, and come up with a set of rigorously tested proposals. This was—for want of a better way of putting it—a late addition to the work being done earlier this year, because it was already coterminous and the commission was to look at things that were non-coterminous. However, in the light of representations made by my hon. Friend the Member for Eddisbury and others, the Secretary of State was clear that it should be reviewed.

Two years was deemed an appropriate time in which to do that review, to allow that consultation with Members and others, and so that it did not straddle—subject to the passage of this legislation—the establishment of ICSs just at the time they were coming into being, and we could do that preparatory work properly. I can give my hon. Friend the Member for Eddisbury the assurance that this is a genuine and rigorous review process. When I emerge from this Committee room, perhaps I may, with Members on both sides of the Committee, discuss further what that looks like and how that might most effectively be carried out.

What that process has shown up, however, is that there is rarely a 100% consensus from all local authority partners and the local NHS on exactly what the right solution is where there is not coterminosity and we are moving towards it. That is why I am cautious about some of the language that has been used thus far, which essentially appeared to imply that we would have to have consensus, and that one part or other of the system would have, if not a veto, a right to put the brakes on changes. Were we to go down that route, I fear that, given different perspectives in different local authorities and areas, we would run the risk of paralysing any possibility of change. I think the right balance needs to be struck.

[Karin Smyth]

I hear what the Minister is saying, but on that basis—I think this is fundamental to all of this—why would we have local authorities or unitary authorities making any sorts of decisions? That is how local people exercise their democratic will. Bringing forward proposals in order to persuade sometimes results in a bit of stasis, but ultimately someone has to decide and break the deadlock, and the concern, as we come to some of the other amendments, is about how one does that. Local people should be able to have that in a transparent way.

--- Later in debate ---

[Edward Argar]

The approach that we have adopted thus far, which I believe is appropriate, is that we have that with local authorities and the NHS, but ultimately it is the Secretary of State who balances those in the case of these boundaries, and he is accountable to this House, so that strikes an appropriate balance. In the case of the East of England areas, certainly, we did have a very strong divergence of views as to what the right boundaries would be. It would be wrong if either local authorities or the NHS had the right to say, “No, it’s this.” That is where we have to have those views put forward together so that they can be considered in the round.

On the final point that the hon. Member for Bristol South made—I may have missed some points, but this is an important one that I want to put on the record—she is absolutely right to highlight the value of the work done by managers and administrators, or whatever title is used to describe them, sometimes pejoratively by some commenting on this matter. She is absolutely right about the value of their work. There is an analogy that I use all the time, with a much-hackneyed quote that Members will know: John F. Kennedy going to NASA, shaking the hand of the janitor and saying, “Thank you for putting a man on the moon.” What sits behind that goes to the heart of what the hon. Lady was saying. The NHS is a team. Without effective managers, people who can engage, and people who can manage budgets and ensure financial transparency and accountability, and without planning and people who make sure that patients are called and appointments are rescheduled, those on the clinical front line, if she will allow me to put it this way, would not be as effective at doing their job. It is not an effective use of a clinician’s time to ring up a patient to rearrange an appointment. Similarly, it would not be an appropriate use of the time of a highly skilled manager or administrator to be performing some other task. We have got to make sure that we have the right people in the right places, with the right skills.

The final point I would like to make again goes back to a point that the hon. Member for Bristol South made, about accountability. I think it was Amanda Pritchard, chief executive of the NHS—forgive me if it was Mark Cubbon, the chief operating officer—who highlighted, in asking who was accountable, that the ICB is an NHS body, working in partnership with the local authority, that is accountable for the funds it spends, which are voted on by Parliament. That is why it has an NHS official and there are routes of accountability up through the NHS to NHS England, and ultimately to the Secretary of State and this House. That is the structure of the NHS that has evolved over the past 70-plus years. I think that the hon. Lady sought—quite rightly—to press and challenge me on whether we think that evolution is the right approach, or whether we need to take a step back and challenge some of those assumptions. She is right to do that, but in this context, which involves the management of public money, the structures and accountabilities are correct.

I am sorry to disappoint the shadow Minister, as I fear that we will not be able to support his amendment. I hope he will not press it to a vote and that I have gone some way towards addressing the points made, particularly with regard to ICS boundaries and processes followed.

[Justin Madders]

We have had a fairly wide-ranging and useful debate. A number of issues have arisen that we will return to as the Committee makes progress. I am disappointed that the hon. Member for Eddisbury could not come on board; perhaps I should not have made my little dig about barristers this morning, otherwise he might have been more inclined to support us. I noted the sympathy he expressed and I think he articulated very well his knowledge of the geography of the area and why there are concerns locally about proper accountability in such a large area.

The irony of the whole debate, of course, is that we are discussing the Bill today, but before we have even got to the end, we know that the Cheshire and Merseyside ICS may not survive two years. Before the Bill has even become an Act, some of its constituent parts may be reorganised in future. We will see what happens on that, and I look forward to engaging with the Minister in that process.

Let us not forget that the genesis of what is before us was the STPs. How were they put together? I think local NHS leaders were sent a missive about three days before Christmas to say, “Can you give us an idea of what you think the most optimal design of your local NHS would be? By the way, we would like the response back by the end of January.” As we know, the NHS is traditionally extremely busy at that time of year, and Christmas is hardly a good time to be engaging with the wider public sector or indeed the community, but that was where the genesis was, and that is where the Cheshire and Merseyside STP and now ICS came from. It would be interesting to know how many of the 42 areas have changed since that original geography back in, I think, 2017—perhaps even 2016. It was clearly then, as it still is, a creature of the NHS, not the communities it represents.

--- Later in debate ---

[Justin Madders]

I thank the SNP spokesperson for her intervention. That is undoubtedly a risk. It is possible we end up with two or three areas out of that review. I hate to think it would get any bigger.

In terms of what people think is their relevant community, Merseyside has a metro Mayor now with very clearly defined geography, and Cheshire is a different area. As my hon. Friend the Member for Bristol South said, people do not take to the streets with banners saying, “Save our CCG!” I suspect the majority of people do not even know what a CCG is or the area that it is meant to cover. I suspect even fewer people know what an ICS is and what area it covers. That will definitely have to change if we are to have a truly integrated health and social care system.

The point made by my hon. Friend the Member for Bristol South about the defensive culture at times, alluded to by Sir Robert Francis, is a valid one. We may touch on that in the HSSIB elements of the Bill later on. She was asking the right questions—how can the board be challenged, and who is it accountable to? Those are points we will have to come back to, because there is, to our mind, a clear democratic deficit in the way these bodies have been structured.

Finally, the Minister referred to his guiding principle of coterminosity except in exceptional circumstances. Cheshire and Merseyside is coterminous, it is just coterminous for more than one local authority—and some pretty big ones at that—so I do not necessarily think that coterminosity is the answer.

The Minister referred to proposed new sections 14Z25 and 26 in regard to the duties to consult with members of the ICB. Some of the people named in amendment 49 might not actually be on the ICB, because they are not included in the legislation at the moment. We will come to our amendment on that in due course, and we might be able to change that. In proposed new sections 14Z26, CCGs must

“consult any persons they consider it appropriate to consult”.

That could be everyone and no one. I do not intend to press this to a vote, but I hope the Minister has taken on board several points that will lead to an improved process in the future. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Edward Argar]

I beg to move amendment 10, in clause 13, page 9, line 44, leave out from beginning to end of line 12 on page 10 and insert—

“(1) NHS England may, in connection with the abolition of a clinical commissioning group under section 14Z27, make a scheme for the transfer of the group’s property, rights or liabilities to NHS England or an integrated care board.

(2) NHS England may, in connection with the establishment of an integrated care board, make a scheme for the transfer of property, rights or liabilities to the board from—

(a) NHS England,

(b) an NHS trust established under section 25, an NHS foundation trust, or

(c) a Special Health Authority established under section 28.

(2A) NHS England may, in connection with the variation of the constitution of an integrated care board or the abolition of an integrated care board, make a scheme for the transfer of the board’s property, rights or liabilities to NHS England or an integrated care board.

(2B) The reference in subsection (2A) to the variation of the constitution of an integrated care board is to its variation by order under section 14Z25 or under provision included in its constitution by virtue of paragraph 14 of Schedule 1B.”

This amendment adds a power for NHS England to transfer property, rights and liabilities (including rights and liabilities relating to a contract of employment) from certain NHS bodies to an integrated care board on its establishment: see new subsection (2). In consequence, new subsections (1), (2A) and (2B) restructure material currently in subsections (1) and (2).

[The Chair]

With this it will be convenient to discuss Government amendment 11.

[Edward Argar]

Both the amendments are technical ones. Amendment 10 amends proposed new section 14Z28 of the National Health Service Act 2006, which provides NHS England with the power to make transfer schemes to transfer property, rights and liabilities in connection with the establishment of, abolition of or change in the constitution of ICBs or the abolition of CCGs. The amendment widens the power to make transfer schemes when establishing integrated care boards, so that transfer schemes may include transfers from NHS England, English NHS trusts or foundation trusts, or English special health authorities.

We are widening the scope of those schemes to reflect further work done by NHS England, which has noted that a small number of people currently working in those bodies may need to transfer into ICBs. It is of practical importance for NHS England to be able to make transfer schemes that will ensure a smooth transition when ICBs are established, and for all the staff who may be transferring to newly established ICBs to be fully protected by such schemes.

For all but the most senior staff transferred from elsewhere in the NHS, I assure the Committee that NHS England’s employment commitment to continuity of terms and conditions, even if not required by law, will apply fully. That commitment is designed to provide stability and remove uncertainty during the transition. It is also possible for NHS England to use the schemes to transfer property and liabilities currently held by those bodies to ICBs on their establishment, although again we expect that to be rare in practice.

Proposed new subsections (1), (2A) and (2B) in the amendment restructure material in proposed new subsections (1) and (2) of the clause as drafted. That simply reflects the technical legal redrafting. The amendment therefore does not change the bodies that can be covered in transfer schemes relating to the abolition of CCGs or ICBs, or the variation of the constitution of an ICB. Those bodies continue to be CCGs, ICBs and NHS England.

Amendment 11 is consequential upon amendment 10 and is also simply a technical change. They are technical, but important amendments to ensure—and to be clear—that staff rights, liabilities and properties are in the right places in the NHS when we introduce ICBs into the system, and that the right protections are in place.

Amendment 10 agreed to.

Amendment made: 11, in clause 13, page 10, line 13, after “(1)” insert “or (2A)”.—(Edward Argar.)

This amendment is consequential on Amendment 10.

[Justin Madders]

I beg to move amendment 38, in clause 13, page 11, line 10, at end insert—

“Accountability

14Z28A  Reporting: duties on integrated care boards and the Secretary of State

(1) Integrated care boards must report annually to the Secretary of State on their actions and policies and the outcomes for patients of the services they commission.

(2) The Secretary of State must prepare and publish a report each year on the actions and policies of integrated care boards and the outcomes for patients of the services they commission and must lay a copy of the report before Parliament.

(3) A Minister of the Crown must, not later than one month after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.”

It is a pleasure to move the amendment in my name and that of my hon. Friends. The heading is “Accountability” and, as I am sure the Minister will have picked up by now, we think that accountability needs to be turbo-charged in the Bill. The new commissioning bodies, the ICBs, are directly accountable to NHS England and therefore on to the Secretary of State. That was explained by Amanda Pritchard when she gave evidence last week. Each year, the ICB has to prepare a report on how it has discharged its functions and specialist duties under the various headings—improvements in quality, public involvement and so on. It has to report under lots of headings. One has to wonder how it will be able to pick priorities from all that, but that is a matter for the ICB.

ICBs must also publish their plans. The NHS, in the form of NHS England, will then assess the performance of each ICB against how it discharges its functions. Presumably, that will be at least in part with reference to those plans.

The amendment, in essence, would add the accountability of the Secretary of State to what we would describe as a fairly cumbersome but necessary regime of performance management. The slant of the reporting in the amendment is less steeped in the kind of bureaucratic tick-boxing that we understand that the Secretary of State is not a fan of, and what has to be reported is outcomes to patients--perhaps, the thing that matters most.

In the recent comparative survey by the Commonwealth Fund, the NHS lost its top slot and went down to No. 4. It was close, but not close enough. Despite usually coming top, it does badly on one of the key metrics that goes into the assessment—patient outcomes. We do well on ease of access but not so well on outcomes, which is a sad reflection. The amendment makes outcomes a priority over other factors. While the ICBs may have much to say on the day-to-day running of the NHS in the area, the ultimate responsibility for the whole system lies with the Secretary of State, even though on a day-to-day basis it may be NHS England that does the real leg work of performance management. In its new integrated form, NHS England performance manages various trusts and foundation trusts. It also runs the failure regimes for them if needed.

Ways of managing providers are well developed, but most of the skills necessary to monitor whole system performance have been lost to some extent, as management capacity in commissioners has been nibbled away. That brings me to the current weakness in holding providers to account on outcomes. Payment by results was a euphemism, as the results did not matter: the process was the determining factor. Reports on outcomes, as with on patient satisfaction, are absolutely necessary. If any system is to be taken seriously, it must seek to improve. ICBs should not see this as added bureaucracy: they should see it as reporting vital elements of healthcare. I draw particular attention to the reference in proposed new subsection (1), which refers to outcomes specifically, because we do not believe that gets as much prominence as it should.

Leaving aside the desire to produce the right reports for the Secretary of State, there is also an issue about how to make ICBs more accountable to their communities—we will touch on that later. Giving them sight of a nice glossy annual NHS report will not be very enlightening, and it will not help communities understand what has been done on their behalf, even if they recognise the NHS as part of their community.

--- Later in debate ---

[Edward Argar]

It is a pleasure to rise to respond. The shadow Minister, the hon. Member for Ellesmere Port and Neston, is now having to do a lot of bobbing up and down with his amendments, and I am grateful to him for tabling this one. I fear he will not be entirely surprised that we cannot accept it, but I will try to explain to him at least why, and why I urge him not to push it to a vote, although obviously he will be the judge of that.

The amendment, as the shadow Minister has set out, would place new requirements on integrated care boards to report annually directly to the Secretary of State on their actions, and a duty on the Secretary of State to prepare and publish an annual report for Parliament specifically on the actions of the ICBs. It would also require a Minister of the Crown to propose a motion in the House of Commons in relation to the report no later than one month following its being laid in Parliament.

We entirely agree with the shadow Minister that there should be strong lines of democratic accountability from ICBs to Parliament. I hope I can give him at least some reassurance that the Bill already provides for much of the transparency and accountability that he is understandably seeking. The provisions in the Bill will create clear lines of accountability for ICBs to NHS England; they will be accountable through NHS England to national Government and ultimately, therefore, to both Houses of Parliament.

Proposed new section 14Z26 of the National Health Service Act 2006 already places a duty on ICBs to prepare an annual report explaining how the ICB has discharged its duties, particularly in relation to its activities to improve the quality of services, reduce health inequalities and have regard to the effect of its decisions on, and its involvement with, the public.

The report must also explain how the ICB has exercised its functions in accordance with its proposed forward plan and capital resource plan, as well as the steps it has taken to implement any joint health and wellbeing strategy. NHS England will also have the ability to give directions to ICBs concerning the form and content of the annual report, meaning that it could stipulate further reporting requirements for ICBs as necessary where information might be lacking. The report must be provided to NHS England and must be published

I hope the Committee will agree that that is already a comprehensive reporting requirement. Further, under proposed new section 14Z57, NHS England is also required to undertake annual performance assessments to review how each individual ICB has discharged its functions, including how it has delivered on its statutory duties. The Secretary of State will have the power to issue statutory guidance concerning performance assessments, meaning that national Government will be able to influence the methods and requirements of assessment if necessary. Again, NHS England must publish the results of each performance assessment, meaning that the public will have open access to information concerning the performance of their ICBs.

I hope the Committee will agree that the Bill therefore already provides much of the transparency and accountability that the hon. Member for Ellesmere Port and Neston is asking for, and that further duplicative reporting requirements would risk creating new and unnecessary bureaucracy. In respect of the ability of the House to scrutinise, he knows, and Opposition Members know, that they have many opportunities to table debates on a wide array of subjects. He and his colleagues have held me and other Ministers to account, not only in these Committee Rooms but on the Floor of the House in recent months, on a whole array of subjects. With the information I have set out that will already be published, for not only the House but the wider public to read, absorb and consider, there is scope for the hon. Gentleman or any other hon. Member to table a debate in which such reports can be considered if they so wish. I believe that that provides for sufficient transparency and accountability, and I encourage the shadow Minister not to press the amendment.

[Justin Madders]

I understand what the Minister is saying. We still say there is not enough emphasis on outcomes and accountability to Parliament, but, as he has pointed out, there are other avenues that we can use to pursue those matters. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

The clause, as we have touched on in the various discussions on amendments already, inserts new chapter A3 into the NHS Act 2006, which contains a number of duties and functions in relation to the new integrated care boards. A new duty is conferred on NHS England to ensure that ICBs cover England and details the required process for establishing the ICBs.

The clause also makes provision for abolishing clinical commissioning groups, transferring staff, property and liabilities to ICBs, requiring the constitutions of ICBs to be published and requiring ICBs to make arrangements for managing conflict of interest effectively. The clause is essential for delivering on one of the core objectives of the Bill—creating statutory ICBs as a means to take an ambitious, collaborative approach to planning and delivering integrated health and care services in England. The clause will establish a smooth transition from CCGs to ICBs, providing clarity and consistency for patients as we move to these new arrangements, as well as creating continuity of employment for NHS staff.

[Karin Smyth]

Will the Minister give way?

[Edward Argar]

Yes, of course. I know the hon. Lady has a great interest in this.

[Karin Smyth]

I hope the Minister will address my earlier comments about the policy direction of primary and community care being front and centre in the last 15-odd years. This is a very different beast. I think that has perhaps not come out in the debate. These are very different bodies, and I wonder how he will make sure that the majority of patient contacts and the majority of the work that is done in the health service is not lost in the new organisations.

[Edward Argar]

I hope that I can reassure the hon. Lady. Although these organisations move beyond the CCG model to be much more collaborative, with more partnership working with local authorities and others, and the genesis of the new model is to bring those two parts together, there is no intent for, and I do not believe the practical consequence of this would be, a diminution in the voice of and the need to pay heed to primary care. She is absolutely right. For the vast majority of our constituents, the front door to the NHS is primary care services. The majority of their appointments, their consultations and their engagement is with primary care services. That voice is hugely important. I see that continuing to be front and centre.

The Bill brings together a range of other NHS system providers and the local authority. We may come back to the point when we discuss further amendments. I emphasise what we heard in the evidence sessions, which is that the membership requirements are de minimis. There can be increased numbers of voices for primary care on these boards, as Dame Gill Morgan mentioned in the way she is managing Gloucestershire. That may not fully satisfy the hon. Lady, but I hope I can reassure her that I am in the same place as her in recognising the importance of primary care and that the expertise that has grown up in understanding local communities is vital in framing a system that works effectively.

In requiring ICBs to maintain and publish registers of the interests of their members and employees—I expect we will return to this point in the future, in a different guise—the clause is an essential part of guaranteeing the integrity of each ICB’s decision-making processes. It will ensure that any potential conflicts of interest are declared promptly by individuals and managed effectively. As a result, the public will be able to trust that decisions are made in a fair, transparent manner, in the best interest of the ICB’s local population. I commend the clause to the Committee.

Question put and agreed to.

Clause 13, as amended, accordingly ordered to stand part of the Bill.

Schedule 2

Integrated care boards: constitution etc

[Justin Madders]

I beg to move amendment 48, in schedule 2, page 119, line 18, at end insert—

“(c) the process by which any proposed changes to the policies of the clinical commissioning groups within the area for which the integrated care board is established will be consulted upon and agreed.”

This amendment would require ICBs to be clear about how they would make changes in clinical policies and established models of care that have already been established and are applicable to patients in the area for which the integrated care board takes responsibility.

We are certainly getting a good workout this afternoon, Ms Elliott—hopefully the Minister will now be able to catch his breath.

As the hon. Member for Eddisbury suggested earlier, we have seen a rapid reduction in the number of CCGs in Cheshire and Merseyside—there are now nine, but there were more than that not so long ago—and it is one of the biggest ICSs, if not the biggest, in the country. I am not going to take the Committee through the angst on that again, but even with sensible coterminous boundaries, quite a lot of ICSs will have more than one progenitor CCG.

Under the old regime, every CCG had its own plans, policies, care pathways and models of care. For example, many had different rules about gluten-free products being available on prescription, and most Members will be acutely aware of the manifest unfairness of the postcode lottery for IVF treatment. The number of cycles people were entitled to and how old they had to be to access treatment all depended very much on where in the country they lived. It is tempting to say that, rather than having all that variation, we should just level up—the Government’s catchphrase of the day—but that of course will not always be possible, and there will be variations in CCG policy that we cannot easily equate into one optimum outcome or standard, so how do we go about moving the many into the one?

The amendment would add a requirement that, in drawing up the initial constitution CCGs, which of course should be aware of the issues, make a start on place-based approaches, but there is an important job to do on harmonisation at the outset, and that is important for patients and the public. It will be contentious. We can all imagine the outrage if something that is offered in one CCG but not another is then removed from everyone in the process of forming an ICB. These are possible changes that we will see over the next 12 to 18 months, and they will be a real test of how responsive and engaged ICBs are in their local communities. We may indeed see people holding banners with ICBs on them if things are not handled well.

In the amendment, we say that the process of harmonisation or variation should be arrived at only after proper consultation. That fits in with the duty, which we have talked about already, on harmonisation, public involvement and consultation. It also highlights a gap in the specification for the job of producing the initial constitution for each ICB, which is given to the relevant CCG. As I have pointed out, it is very much up to them to decide who they consider it appropriate to consult. We want a much stronger and clearer commitment to consultation on changes that might affect patient care on the face of the Bill.

[Edward Argar]

As ever, I am grateful to the shadow Minister for tabling the amendment in order to air this issue in Committee. I fear that I may have to disappoint him once again; it seems I am getting into a habit, although perhaps at some point I will suddenly surprise him.

We agree that it is right that there is appropriate consultation when making decisions about commissioning policies and care. The shadow Minister set out very clearly, as he always does, some of the reasons for that. I hope that I can give him some reassurance that the Bill already provides for much of what he is seeking in terms of outcomes. In clause 19, new section 14Z44 of the National Health Service Act 2006 already places a duty on integrated care boards to involve and consult the public in respect of the planning of commissioning arrangements, including on any planned changes. That would include, for example, plans by an ICB to change the range of health services available to the public or the manner in which they are delivered. This will ensure that the voices of residents, patients and those who access care and support, as well as their carers and representatives, are properly embedded in ICB decision making.

Schedule 2, which concerns the constitutions of integrated care boards, states that ICB constitutions must specify how the ICB plans to exercise its functions, including the duty to involve and consult the public. ICB constitutions must, moreover, specify the arrangements that the ICB will make to ensure transparency in that decision making. NHS England will ensure that they are appropriate and include the relevant provisions.

Under clause 13, and new section 14Z25 of the National Health Service Act 2006, NHS England will need to approve the constitution and make an establishment order for the ICB. In that respect, new section 14Z26 goes on to make it clear that NHS England can reject a proposed constitution if it is inappropriate. I hope that that offers some reassurance to the shadow Minister, and helps underline our commitment to ICBs being as transparent and as involving of patients and the public as possible. I encourage him not to press his amendment.

[Justin Madders]

In light of what the Minister has said, we will not press the amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Karin Smyth]

I will speak mainly to amendments 31 and 50. The case for an elected chair of an ICB is very strong. As my hon. Friend said, if we accept the need for an elected police and fire commissioner, why not for health? The amounts of money we are talking about and the influence on people’s daily life dwarf those even of my local council. That is what people on the boards will be responsible for. Social care is still provided through a democratically accountable local authority, so why not healthcare?

We are moving towards the NHS budget overall accounting for up to 40% of general Government spend—that is what we are looking at for the next few years. It seems to go against the grain of everything else—elected Mayors, devolution and so on—for Conservative Members to allow that quantity of Government funding from the taxpayer to be out in communities without any kind of more local democratic control. There would also be a lot more confidence that the days of crony contracts favouring friends, families and donors had been well and truly left behind were there independent heads of the ICBs. I do not know if the Secretary of State has as many close friends as the last one, but letting him make the appointments is not something that Conservative Members will want to defend.

We should therefore be electing a local health commissioner. The amendment reasonably allows a two-year period for the organisations to get established—they have enough to do at the moment—but it would then start to take away some of the problems that the Government will get into with their proposals for the integrated care board chairs. On the make-up of the boards, too, the Bill is a good opportunity, should they wish to take it, for the Government to move away from the terrible scenarios of the past few years in particular. That argument was made cogently this morning by the Minister himself, in terms of NHS England having non-executive directors, people of independence and so on as part of its board, and it can well and truly be made about these new local bodies.

We do not need to go back to the 1990s, when trusts were first invented. Friends and families were put on to those bodies, which were stuffed with worthies, with business people favoured over local people with strong links to the community. Surely we can learn from the past 20-odd years and from the past couple of years in particular. Place is central to what the Government are trying to achieve and is the general policy direction of the Minister’s Department and many others, so it has to mean something and it has to be accountable.

We will come later to some of my amendments on a good governance commission, for which I hope to gain Government support; on having fit and proper tests for people to be scrutinised as suitable to come on to the boards; and, without wanting to throw back to the past, on bringing people in from the community to make the ICBs reflect their local community. In all seriousness, in our sad political situation, most ICBs will be headed up not by people are particularly sympathetic to Labour, so this is not a partisan point. It is, as the Minister started to say about NHS England itself this morning, about having people with the right qualifications—some clinical, some not. Let us have some clear criteria for how we want the boards to be governed and the sorts of people we want on them.

As I said earlier, the Government have got themselves into a real mess with accountability and with how much work the Secretary of State is doing, given how much is put on his desk—this sort of circular NHS accountability thing—so the amendments are trying to offer the Government a way through that follows their general policy direction. That was raised by NHS Providers in its written evidence

“to make crystal clear the relationship between trusts and ICBs, and how the statutory accountabilities of trusts, foundation trusts and ICBs align. There also needs to be clarity within the legislation on how the roles and responsibilities of the current NHS England and NHS Improvement…regions, ICBs, ICPs, trusts, foundation trusts, health and wellbeing boards…places, provider collaboratives, neighbourhoods and primary care networks…will all fit together.”

We would all like to understand how that works, even those of us who follow such things.

I am not suggesting that an all-powerful elected chair will get that, but at least that skilled person bringing together the multiplicity of organisations, groups and people for the local community would be a figurehead who needs to understand and grapple with the issues. The chairs would need to be trusted and highly skilled. In that way, there can be further accountability back up the national system, either through NHS England or the Minister. Let us take all that away from the Secretary of State’s desk—he is going to be a terribly busy man over the next few years. Let us help him out.

The Government should support this and similar amendments to try to bring local accountability much more to the fore. That, in turn, would allow local people, who are expected to spend huge quantities of their taxes on health—increasingly so over the next few years—to be very clear about what the money funds, what they get for their money and how they can hold people accountable.

[Edward Argar]

The shadow Minister, the hon. Member for Ellesmere Port and Neston, said that his amendments would give me two years to work through this, if necessary. I am grateful for his confidence in my longevity in this post—only time will tell.

I am grateful for the opportunity to address amendments 31, 50, 51 and 52, which were tabled by the shadow Minister. I fear that I may not surprise him on this set of amendments. Under the Bill as drafted, the chair of the integrated care board will be appointed by NHS England, as he and other Members have highlighted. It is therefore rather disingenuous to suggest that friends and cronies will be appointed. This is an NHS England appointment, with approval from the Secretary of State. I am not quite sure what is being suggested about those at NHS England, but I suspect it is rather unfair.

The chair will be appointed by NHS England, with approval from the Secretary of State. That reflects the fact that the ICB is accountable to NHS England and, through it, to the Secretary of State and, ultimately, this House. That goes to the heart of the comments made by the hon. Member for Bristol South on the balance to be struck between having local flexibility and accountability, and recognising that this is a national health service and the way in which it has evolved. The accountability mechanisms are also national to reflect that.

In answer to the hon. Lady’s questioning, the chief executive of the NHS, Amanda Pritchard, said very clearly of the ICBs:

“In the proposed future structure, they would be accountable to a combined NHS England and NHS Improvement structure. At the moment, we operate that through seven regions, and then through to the national NHSEI executive. We are, in turn, accountable to Parliament.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 20, Q21.]

Amanda Pritchard was very clear that it is the integrated care board that carries that national statutory responsibility on behalf of the NHS, hence why we have structured the accountability requirements as we have.

That chain of accountability has been at the heart of the NHS since its inception. There is a difference, which I know all Members recognise, between the DNA—for want of a better way of putting it—of social care provision, which has evolved through the link to local authorities, and the NHS, which has a more vertical, national structure. That goes to the heart of the different DNA of those two complementary—vitally complementary—parts of the system. We have to remember that history.

That is reflected in the clear belief, which is shared across both sides of the House, that in various ways the Secretary of State is ultimately accountable to this House and, through that, to the public for the performance of the NHS. It is therefore only right that once NHS England has made the appointment, the Secretary of State, who is ultimately accountable, should give final approval for the appointment of the chair. It is an important role in the ICB, as I am sure all Members would agree, and it is right and proper that the Secretary of State ensures that the appointment is appropriate. That is why, I fear, we cannot accept amendment 50, which would remove that mechanism.

At this point, it might be helpful to address the shadow Minister’s point about councillors. We need to draw a distinction between their role on ICPs and on ICBs. ICBs are the NHS accountable body for the spending of public money. As is already the case, the NHS is clear that it does not approve of dual accountability, so when someone is directly accountable for the spending of NHS money, they are required to have that as their role and to not have multiple roles. That applies to the chair and the chief exec, as is consistent with current practice. I discussed that at some length with the chief executive of the NHS when she was chief operating officer. Quite rightly, given my background and the shadow Minister’s, I sought her guidance and that is the conclusion we reached.

Amendment 31 suggests that the chair of the ICB should be appointed via local elections. That brings in a new element to the accountability relationship, which, again, could give rise to the perception of conflicting accountability routes, given that the genesis of how the NHS is currently structured has been as a national health service. The amendment risks introducing a degree of tension into that relationship. Given the importance, as the hon. Member for Bristol South rightly said, of having the right, highly skilled and able people in all these roles, it is appropriate that the mechanism we propose seeks to balance local knowledge and national accountability.

The shadow Minister or perhaps the hon. Member for Bristol South—forgive me if it was—asked what happens if there is discord within an ICB or challenges to the authority, capacity or capability of an individual chair. Essentially, we come down to the constitution of the ICB. Paragraph 8 of schedule 2 sets out how that would work, and NHS England will be producing guidance. Ultimately, NHS England will have the power to remove a chair should issues arise that necessitate that, but there will be further guidance on how that would work and what thresholds there might be.

The hon. Member for Ellesmere Port and Neston raised an important point: what is the mechanism in the hopefully unlikely event that that should occur? Chairs are subject to normal recruitment processes, and NHS England’s approach to appointments has been to work with the existing ICSs, including both NHS providers and local authorities, to ensure that the chairs appointed are high quality, credible and have the confidence of their local systems. Similarly, to ensure democratic involvement, ICBs have strong duties in relation to public and patient involvement, and local authorities must appoint, by right, a representative to the ICB.

Before I turn to amendments 51 and 52, the hon. Gentleman raised some challenge about the design document, its status and whether it appeared to prejudge the House’s deliberations. I want to reassure him: the key word in terms of that document is that it is in “draft” form—it is not formalised, and it is not the final document, because he is right. However, it does allows the non-statutory ICSs to be given a degree of guidance to continue their evolution, rather than all work stopping while we deliberate. Should the House pass the legislation that means ICSs become statutory, that document would have greater force. However, we are not seeking to pre-empt or pre-judge the will of the House. In fact, even with that caveat, the hon. Gentleman will be aware that we did not publish the document in draft until after Second Reading. That recognised again that we wanted the House to have a say on the principles before we even published documents in draft form and that we are cognisant of the need to show respect to the House’s democratic processes.

Amendment 51 would mandate that NHS England consult with the board before appointing a chair, and amendment 52 would require the chair to consult with both the board and the integrated care partnership before appointing a chief executive. We fully accept the importance of both the chair and the chief executive having credibility among system leaders and the population they serve. That is why NHS England is working closely with local authorities, NHS bodies and others in the appointment process.

The Bill, at its heart—again, we will come to the question of balance—aims to strip out needless bureaucracy by removing processes that we believe add little in terms of ensuring high-quality or safe care and that could get in the way of collaborative, smooth decision making. The amendment to formally require consultation on the appointment of the chief executive would create an unnecessary formal requirement, as well as potentially duplicative work, given that we would anticipate this happening informally anyway, and having due regard to that.

We believe that the approach taken in the Bill ensures both patients and the public have a strong voice on ICBs while also ensuring that the accountability arrangements set out by the chief executive in her oral evidence are maintained upwards as well, to the House and the Secretary of State. I therefore ask the shadow Minister to consider not pressing all his amendments to a vote.

--- Later in debate ---

[Dr Whitford]

I, too, rise to support the amendment. This is probably one of the most important amendments so far. In the witness discussion, we came back time and again to which voices would be on the ICB and would be able to influence. I agree that, with all the talk of parity of esteem, it seems incredible that there would not be a voice representing the importance of mental health on the board. Similarly, with the talk of moving to population health and wellbeing, there is a need for directors of public health to agree policy and to feed in information about the underlying health inequalities, life expectancy and so on in the local population. Not to have a social care voice when what the Government say is that they are trying to integrate the NHS with social care seems quite bizarre.

The NHS and social care are both services delivered by people for people and having both the workforce and staff voice, and the patient voice, is therefore important. On the staff voice, the “Learning from Scotland’s NHS” report from the Nuffield Trust highlights that the success of both the Scottish patient safety programme and the Scottish quality improvement standards was driven by the fact that frontline staff were involved as drivers, champions and developers from the word go. These programmes have been able to run over years, building on experience that is then shared with other sectors and specialities. It is important to get this part of the Bill right, or else priority will not be given to integration, population health or wellbeing. Of all the things that have been discussed so far in Committee, and through the witness statements, this amendment is one of the most important.

[Edward Argar]

This is an important amendment because it goes to the heart of the debate we have been having about permissive versus prescriptive, and where the appropriate balance is. I suspect we slightly disagree on that—perhaps a little less than one might suppose—but I am grateful to the shadow Minister, the hon. Member for Nottingham North, for bringing this amendment forward. It gives us the opportunity to start getting into that permissive versus prescriptive debate. At the outset he raised the recent announcement by the Prime Minister about integration; it will not surprise him when I say that I believe this creates the foundations of that integration, on which we can continue to build in the coming years.

In respect of the specifics of the amendment, schedule 2 sets out minimum membership of the integrated care board. That is the key element here. It will need to include members nominated by trusts, foundation trusts, persons who provide primary medical services in the ICB area and local authorities. As we heard in the witness sessions, this is very much de minimis—it is not what will happen; it is the baseline, above which each system can go if it wishes to reflect local needs and priorities. We have heard the quote from Dame Gill Morgan about how she is approaching it, but we have also heard from Richard Murray of the King’s Fund, who said:

“You could easily criticise the degree of permissiveness; you could criticise the degree of direction in there. The question should be, ‘Can anyone come up with a better one?’ We have not been able to do so, so I think it is a balance well drawn.”––[Official Report, Health and Social Care Public Bill Committee, 09 September 2021; c. 127, Q173.]

I appreciate that shadow Ministers may take a different view because they feel they have come up with a better balance. However, I highlight that evidence before I go into my answer.

[Dr Whitford]

Obviously, Dame Gill Morgan is quoted as saying that no one could evenly remotely think of setting up an ICS without primary care voices—and these other voices. Are all interim ICSs that have developed so far following the same model as she is? Is this totally intuitive, and therefore to be relied on, or should it actually be laid down? The voices listed in this amendment are central.

[Edward Argar]

The hon. Lady and I have spoken about “Learning from Scotland’s NHS” before; as she will know, we are not dogmatic and are always happy to learn from Scotland’s NHS—as, I am sure, it is happy to learn from England’s NHS. That is to the benefit of everyone, and I am very grateful to her for inviting me on Second Reading to come and visit Scotland and see it on the ground, which I hope to do.

The reality is that the ICSs at the moment, on a non-statutory footing, are at different stages of development, different stages of evolution and reflect different approaches. One of the things we are seeking to do here is to put a non-restrictive degree of prescription around this—if that is possible—to get a degree of consistency, but not to be too prescriptive.

Dame Gill Morgan leads one of the more developed ICSs. I do not think what she is saying would be unrepresentative of the attitudes and approaches adopted by ICSs more broadly. I should say ICBs, as the hon. Member for Bristol South rightly highlighted the importance of reflecting careful use of the terminology in the evidence sessions—she caught my eye, and I have corrected myself now. I think we strike the appropriate balance here, and I suspect we will see ICBs going further in their membership, but that flexibility is able to reflect local circumstances.

[Edward Timpson]

I wonder whether my hon. Friend the Minister could assist the Committee with a question on the evidence given by Louise Patten from the ICS Network, who said that, on top of the five mandated board positions in the Bill,

“a further five will be in the mandated guidance from NHS England.”––[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 134, Q186.]

Is that something that the Minister has been sighted on? If so, do we know what those positions are? I fear that the hon. Member for Nottingham North might have to start to move to a substitutes bench to get enough people around the table, based on his amendment.

[Edward Argar]

I am pleased that I do not see any signs of the hon. Member for Nottingham North moving to the substitutes bench any time soon. However, my hon. Friend is absolutely right. I do not want to pre-empt the detail of the guidance, but, as Louise Patten said, the whole purpose of this is to provide the ability to further supplement what is on the face of the legislation with guidance that the ICBs will have regard to.

[Justin Madders]

Perhaps the Minister can help me. When I read the guidance, I understood that it meant that there would be at least 10 individuals on any ICB. Does the Minister think that is the correct number?

[Edward Argar]

The key focus for this amendment is what the legislation sets out in this clause, and that is the five positions—that is what we want to specify on the face of the legislation. I will come to the detailed guidance, but first I will go through a few of the remarks from the hon. Member for Nottingham North in support of his amendment.

At the heart of the issue is our desire for the provisions of the Bill not to be too prescriptive regarding the membership requirement, beyond that proposed statutory minimum. The guidance is a different matter from what is in the actual legislation; we want the statute to specify that de minimis. We believe that it gives the right approach and balance, having key voices and local flexibility to add voices—including those the hon. Member has proposed, but others as well—and that it reflects the evidence given by Martin Marshall, who said that the boards have to be kept to a workable size to be able to make decisions effectively. Again, that is permissive.

I come back to the point that local ICBs can appoint more members, should they wish to do so. They can go significantly beyond the legislative minimum requirements if they so choose. Therefore, we do not believe that prescribing further membership is necessary. Of course, schedule 2 states that ICBs will need to publish details of their membership in their constitutions. Under clause 13, proposed new section 14Z25 of the National Health Service Act 2006, NHS England will need to approve the constitution proposed by each ICB. Again, we come back to that approval process.

[Justin Madders]

Of course, the evidence from the Gloucestershire ICS was that of course those individuals—some of whom are included in our amendment—would be on the ICB. From our perspective, it is clear that all the individuals we have named are critical players in any local health system. Could the Minister set out which of those included in our list, if any, he does not think would be appropriate to sit on an ICB?

[Edward Argar]

I think that all add value, but equally, in some circumstances, we see different local arrangements; in some localities, some people fulfil more than one role or sit in different places.

The hon. Gentleman asked me to cover his specific point about the guidance before I conclude: the guidance will not prescribe additional roles in the same way that legislation prescribes or mandates, but it does seek to set out best practice, highlighting what would be deemed to be best practice—drawing on experiences such as Dame Gill’s, I suspect. We would expect that ICBs would pay due heed to that guidance, alongside their de minimis legal and statutory obligations.

If in time, when those ICBs are up and running, it becomes clear that that approach needs strengthening and that we need to add further requirements, regulation-making powers in schedule 2 will allow the Secretary of State to do so at a later point. We believe that it is right to start at this de minimis point in the Bill. It reflects our view, which I have articulated throughout, that we must not attempt to over-legislate at this stage on the composition of ICBs, letting them evolve as effective local entities, to reflect local needs. It may not fully reassure the hon. Gentleman, but there is a mechanism whereby further changes could be made in future, although we do not believe that will be necessary.

The amendment takes a different approach, which is essentially more prescriptive and less permissive. I do not dispute the sincerity of that approach, but it comes down to a matter of where we feel the appropriate balance should be struck. I fear that, although the shadow Minister and I are quite close to one another in our region of the east midlands, we are slightly more distant in respect of the amendment, but I am grateful to him for affording the Committee the ability to debate a key point of principle in the approach to the Bill.

[Alex Norris]

I am grateful to the hon. Member for Central Ayrshire for her contribution and for sponsoring our amendment. She spoke about the way staff have not only improved patient safety and the quality improvement programmes, but made them stand the test of time. We are sometimes in danger—the Bill is a good example—of building things that do not stand the test of time and keep being changed, and she went through all the various situations. If we pass any test, it should be that one. The amendment is certainly one way of improving our chances on that.

I am grateful to the Minister for his comments, too. I understand the de minimis point, but I still cannot envisage a scenario in which we would not want a mental health rep on the board. I live in undoubtedly the best place in England—in Nottingham—but we still have mental health problems and need mental health leaders. If we need mental health reps, and we certainly do, I think that everybody probably does.

The Minister’s response did not quite address the point about balance. The balance of the five members is four NHS and one non-NHS. The whole business maxim is no mergers, only takeovers. If the provision is really about integration and partners coming together on an equal footing to improve the population’s health, everything that we have heard so far does not fit with that. What we have heard so far is about organising this round with the terms of reference that NHS England wants, and if local communities and local authorities wish to be part of that and know their role within it, that is absolutely fine. I think we should aspire to do better, so I will press the amendment to a Division.

Question put, That the amendment be made.

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[Dr Whitford]

Although this was described as an evolutionary piece of legislation that would not involve a lot of upheaval for the NHS, it actually does. It is a significant piece of legislation, but it represents a missed opportunity to go back to a unified public NHS with integrated care bodies as the main structure. They are responsible for spending billions of pounds of public money, but the system will still be a transactional one based on a purchaser-provider split and tariffs. We will talk further about how can inhibit development.

If we are to have a purchaser-provider split, we have to have a split. We cannot get away from the conflict of interest inherent in having private providers who seek contracts to deliver care sitting on the very board that makes those decisions, or on the partnership board that will develop the strategy. That is a conflict of interest. It should be resolved, and the amendment should be supported.

[Edward Argar]

With your indulgence, Ms Elliott, I will turn to amendment 33 first. Integrated care boards will be NHS bodies, whose membership consists, at a minimum, of individuals appointed by NHS providers, providers of GP services and local authorities that coincide with the ICB. Any perceived risk of privatisation through the ICB membership provisions is, I believe, entirely unfounded—and, I feel bound to add, potentially unfair to the many public servants in the NHS who work for ICBs. Although service provision—I emphasise the word “provision”—by the independent and voluntary sectors has been, and continues to be, an important and valuable feature of this country’s healthcare system under successive Governments of all political complexions, it was never the intention for independent providers, as corporate entities, to sit on integrated care boards, nor for an individual to be appointed there to be a representative of such an interest in any capacity.

People must therefore be assured that the work of integrated care boards is driven by health outcomes, not by profits, and I am sure that there will be a consensus on that principle across this Committee. That is why there are already safeguards in place to ensure that the interests of the public and the NHS are always put first. The ICB chair has the power to veto members of the board if they are unsuitable, and NHSE has the power to issue guidance to ICBs in relation to appointments as part of its general guidance-making power. That sits alongside the robust requirements on ICBs to manage conflicts of interests, and NHSE’s wider duty to issue guidance to ICBs.

I turn to amendment 30, which seeks to exclude individuals whose GP practice holds an alternative provider medical services contract from being made a member of an ICB. APMS contractors include some private and third-sector organisations, but also some GP partnerships. These contractors include, for example, social enterprises and partnerships that provide services to homeless people and asylum seekers. This amendment would potentially prevent some individuals from being on ICBs, on the basis of the type of NHS GP contract that their practice holds.

I do appreciate the intent behind the amendments, namely the desire to avoid the appearance, and potentially even the risk, of privatisation and conflicts of interest. However, the effect would be to limit the ability of primary medical service providers to appoint an ICB member who might best meet the requirements of the local population, by reducing the diversity of GPs who could be appointed. While I can understand the intent behind them, I fear that these amendments do not do what they seek to do, and they would have unintended consequences. I will turn to those shortly.

We recognise that the involvement of the private sector, in all its forms, in ICBs is a matter of significant concern to Members in the House, and we are keen to put the point beyond doubt. However, having taken appropriate advice, I am afraid that that these amendments would not cover a number of scenarios—for example, lobbyists for private providers, or those with a strong ideological commitment to the private sector—and they would therefore not be watertight

As it stands, these amendments may well not offer the robust assurance that perhaps hon. Members intended. Therefore—this is where I may surprise the hon. Member for Ellesmere Port and Neston—to put this matter beyond doubt, we propose to bring forward a Government amendment on Report to protect the independence of ICBs by preventing individuals with significant interests in private healthcare from sitting on them.

As hon. Members will know from their attempts to draft these amendments, avoiding unintended consequences is not a simple matter. If appropriate, I would be happy to engage with either the hon. Member for Nottingham North or the hon. Member for Ellesmere Port and Neston in advance of Report. We may not reach a consensus, but, as they both know, I am always happy to have a conversation with them.

The Government are firmly committed to the founding principles of the NHS. We recognise the importance of its values, and the public service ethos that animates it. It is by no means our intention to allow private sector providers to influence, or to make, decisions on spending on the commissioning board—the ICB—and the spending of public money. The Bill does not allow that, but we will look to see whether we can find a way to put that unfounded fear to bed once and for all with an appropriately worded amendment that does not have unintended consequences.

Although I appreciate that much the same motive underpins amendment 27, it is worth considering why the integrated care board and the integrated care partnership are different bodies. The decision to create integrated care partnerships came from discussions with a number of stakeholders who revealed a strong case for the creation of a committee to consider strategically not only the health needs but the broader social care and public health needs of a population. It is not a body like the ICP, as we have heard, which will be directly accountable for the spending of NHS monies.

We therefore do not intend to specify membership for the ICP in the Bill, as we want local areas to be able to appoint members as they think appropriate. To support that, we have recently been working with NHS England and the Local Government Association to publish an ICP engagement document setting out the role of integrated care partnerships and supporting local authorities, integrated care boards and other key stakeholders to consider what arrangements might work best in their areas.

We would expect members of the ICP to be drawn from a very wide variety of sources and backgrounds, including the health and wellbeing boards within the system; partner organisations with an interest in health and care, such as Healthwatch; and potentially voluntary and independent sector partners and social care providers at that level, as well as organisations with wider interests in local priorities, such as housing providers.

To exclude independent providers from both the ICB and the ICP would, I fear, risk severely reducing the extent to which all parts of the broader health and care ecosystem could be drawn upon in the ICP context. It would exclude valuable expertise and would, for example, prevent social care providers who provide a small amount of domiciliary care to the NHS from sitting on the ICP. Furthermore, the ICP will not make commissioning decisions or enter into contractual arrangements that are binding, or make decisions about who gets funding allocations. Those are functions conferred on the ICB, hence the distinction that I make.

I therefore believe that membership of individuals from independent providers on the ICP does not present a conflict of interest in the way that hon. Members have asserted, certainly in the context of the ICB. I suspect that we may debate that further in the coming weeks, but taken with the ICB and the comments that I have made, we believe that this provides the right balance between recognising the distinctive accountabilities and responsibilities of the NHS, local authorities and other partners, and strongly encouraging areas to go further in developing joint working.

I hope that what I have said provides some reassurance to Opposition Members, and that they will be willing—I see them nodding—to engage with me to see whether we might find a greater degree of consensus. I should also say that I will obviously speak to the Scottish National party spokesperson on this as well, as I have done throughout. I addressed my remarks to the shadow Minister, but of course I extend that offer to her. I hope that on that basis, the Opposition Front-Bench spokesman will consider withdrawing the amendment.

[Alex Norris]

If the Bill is about collaboration, we ought to model that here. Given that very gracious offer, I am very happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Health and Care Bill (Seventh sitting)

Edward Argar Excerpts

Committee stage
Thursday 16th September 2021 Public Bill Committees

[Karin Smyth (Bristol South) (Lab)]

I offer my support to my hon. Friend and agree with everything he said. There may be a response from the Minister, although I do not know what he will say, but there is some discussion that perhaps the amendment is not necessary, as this already happens and the Bill refers to publishing—but that is not true. There are exemplar trusts and bodies across the country that have a culture of openness, but NHS boards are secretive and protected.

We have numerous examples of whistleblowing and good journalism uncovering the depths of NHS bureaucracy. Boards with which I have dealings, not just locally in Bristol, do a lot out of the public eye, and a culture of not liking scrutiny has evolved over a couple of decades, even though they should be really proud that people are taking an interest. We need to change that culture, and having a reference in the Bill would help.

Trade union colleagues have often come to me to complain about how they are blocked from getting key information about plans for changes. Changes are announced, and management often want to start TUPE discussions without really understanding what is behind the change. The use of freedom of information requests results in variations across the country in who responds and how they respond. That needs to stop.

The default should be to make things public unless there are reasons not to. I was a non-executive director back in the noughties, and was led by a chair who had come from local authorities—a Labour chair, but I do not think that matters. People who were used to chairing in local authorities found it quite peculiar that the NHS wanted to discuss matters in secret. As a board, we made it the case and culture that managers had to say if there was a really clear reason, and on several occasions we challenged why things were not done properly.

The new NHS is not commercial. The Government tell us that we are not quite getting rid of the purchaser-provider split, but we are moving away from competition as the driver of the health service. The confidentiality argument should be disappearing. I hope that the Minister accepts that the very highest standards now need to be set around openness and transparency and need actually to be enforced. All levels of the NHS and all these committees and sub-committees, however we end up organising them, have to be cognisant of the Nolan principles, which should drive all their work.

If a trust is finally forced by a tribunal to disclose information, it should have been provided earlier. There should be consequences. Where there is a bad culture, we need to change it. To reference my hobby-horse, there should be a business case to support every major decision. Later we will discuss my new clause 7, which comes from the pain I have experienced trying to unearth business cases, particularly in wholly owned companies and subsidiaries, to deliver facilities management. I have asked for business cases only to be told, “No, it is confidential.” There should be no need for it to be confidential at all. I do not understand how a business case can be confidential—at best, a few lines might be sensitive, but not a full business case.

That shows that NHS bodies who fear a change think they have something to hide. It is wholly wrong. If a change is proposed, the case for change should be published. We need to know why it is necessary. I would go further; I would publish all details of the tender process and the contract management. If anyone wants to do business with the NHS, which we welcome, they need to be open and transparent. It really is a test of the intention to change course and move to an integrated, collaborative model, because as we exit the market, we need to be make sure that the wellbeing of the public and the patient really comes first in commissioning. As I say, that culture needs to be changed.

To come back to my theme, ICBs need to be the bodies that the public recognise and understand as being where some sort of accountability resides. That means that nothing should be secret. Let us go further: the public has the right to question. That is what we come back to. There has to be a figurehead—ideally an elected figurehead —or non-executive directors who can be truly independent and challenge that secretive culture. I hope the Minister will look favourably on the amendment.

[The Minister for Health (Edward Argar)]

It is a pleasure once again to serve under your chairmanship, Mrs Murray. I am grateful to the shadow Minister, the hon. Member for Nottingham North, and to the hon. Member for Bristol South for their amendment, and for their comments on it. As the shadow Minister set out, it would require ICBs and their subcommittees to meet in public, including place-based committees. To address one of his specific points, if I understood what he was saying, I think he does interpret it correctly: the ICP is a committee of the ICB, albeit a joint committee with a whole range of other organisations. I would expect the same principles to apply to it as to the ICB, and I will go through those in a second. The amendment would also require all papers and agendas relevant to those meetings to be published

“at least 5 working days before each meeting is held.”

We agree with the shadow Minister that it is right that ICBs involve the public in their decisions, and do so in a transparent and clear way. I hope that I can offer him some reassurances that the Bill already provides much of what he is asking for. Like a number of hon. Members, I served on a primary care trust board as a non-executive director, back in the days when I had more hair and it was not grey—although that might have been just a day ago, before reshuffle speculation—and I take the point that the hon. Member for Bristol South has made. We sought to be as transparent as possible, but there were occasions on which total openness to the public about consideration of certain items would not have been appropriate. I will come to those in a second.

In terms of what is already provided for, the Public Bodies (Admission to Meetings) Act 1960 already places on such bodies a set of requirements to involve the public in meetings that is very similar to those in the amendment, and I suspect that Act was part of the genesis of the shadow Minister’s thinking. The Act requires meetings to be held in public, for the public to be made aware of the time and place of the meeting, and for the agenda to be published, alongside any reports or documents relevant to the agenda items. ICBs have already been included in the Act by the consequential amendments in schedule 4 to this Bill, and we may want to connect that loop up when we reach schedule 4, hopefully later today—I believe that is the intention. By using that legislation, we keep ICBs in line with the requirements placed on other public bodies, meaning that there is consistency across public bodies and they are held to the same standards.

I hope I can give some further reassurances that there are broad duties on integrated care boards to involve the public in the decision-making process, over and above those contained in the Act. Clause 19, which inserts proposed new section 14Z44 into the National Health Service Act 2006, places a duty on integrated care boards to involve and consult the public in the planning of commissioning arrangements, including in respect of any planned changes to those commissioning arrangements. This will ensure that the voices of residents —those who access care and support, as well as their carers—are properly embedded in ICB decision making.

Schedule 2 to this Bill, which concerns the constitutions of integrated care boards and which we will reach shortly, states that ICB constitutions must specify how the ICB plans to discharge its duty to involve and consult the public. Moreover, those constitutions must specify the arrangements that the ICB will make to ensure that there is transparency in its decision making, and NHS England will ensure that all proposed constitutions are appropriate and include the relevant provisions to meet those obligations. Under clause 13, which inserts proposed new section 14Z25 into the 2006 Act, NHS England will need to approve the constitution when making an establishment order, and proposed new section 14Z26 makes it clear that NHS England has the power to reject a proposed constitution if it does not meet the appropriate bar.

Turning to a few specific points made by the hon. Member for Bristol South, we are still clear that competition has a role to play in this space: it is about proportionality, and seeking to achieve a better and more proportionate balance in that respect. She rightly asked about the examples of circumstances whereby it might not be appropriate to be fully transparent. I was on a primary care trust board some years ago, and there were occasions when the board would discuss specific incidents or situations that could lead to the identification of an individual or a group of individuals. Clearly, such matters would be confidential. Similarly, matters that were due to be, or were, before the courts were discussed on occasions—again, we would expect that to be confidential.

--- Later in debate ---

It was of interest last week that none of the witnesses was able to quantify the total cost of this reorganisation and development, and the impact assessment I have referred to does not set out any costs. One would assume that the Department will not be issuing a blank cheque, and I hope the Minister will be able to set out in detail what cost assumptions have been made. If not—I suspect we will not get the clarity we need—I propose amendment 43, which would bring accountability and financial rigour to a Bill that, at the moment, is sorely lacking in both.

[Edward Argar]

I am grateful to the shadow Minister, the hon. Member for Ellesmere Port and Neston, for his remarks on the amendment. I echo some of his comments, which we covered on Tuesday in Committee in response to the intervention by the hon. Member for Bristol South. Members on both sides of the Committee made clear our recognition of the value we place on those who work in the NHS, irrespective of whether they are managers, in clinical roles or in any other role. In our exchanges, we recognised the centrality of having good, high-calibre managers for what we all know is a huge system.

Amendment 43 would have two effects. First, it would require ICBs to apply to their staff all relevant collectively agreed terms on pay, conditions and pensions. Secondly, it introduces new rules for oversight of pay for the most senior ICB staff. The Government and the NHS remain committed to the principle of “Agenda for Change”. If it gives the hon. Member for Ellesmere Port and Neston further reassurance, I am happy to write to him, because this is a detailed point and I suspect he may wish to have something in black and white that sets out exactly our position on this. We recognise—he alluded to this—that there is a need for a degree of flexibility in some circumstances. He talked about people moving between roles, secondments and so on. I will turn to that in a moment before turning to the point about pay.

There is already a commitment in the ICS HR framework technical guidance that staff transferring into ICBs will transfer across on their current terms and conditions, in line with the “NHS Terms and Conditions of Service Handbook” requirements. The commitment states that NHS pension rights will be preserved, as the individual will continue to be employed within the NHS, ensuring that staff transferring into ICBs will benefit from that protection and will not see any change to their existing conditions. Furthermore, we would expect ICBs to use the nationally agreed pay and conditions framework for the overwhelming majority of the time.

The hon. Gentleman referred to some flexibility, and he was right to do so. There may be circumstances in which an ICB needs flexibility to recruit staff, to attract staff with very unusual or valuable skills, or to reflect local circumstances and the availability of certain staff. Therefore, an ICB may need to vary the terms and conditions in order to make a post attractive if the marketplace is very competitive. Equally, the Bill provides valuable flexibility—for example, in order to allow ICBs to employ on secondment staff who have previously been employed by a foundation trust or local authority. Given the emphasis that the Bill places on systems working collectively and sharing staff, that is a useful flexibility. I would argue that such flexibilities are not unique, because NHS foundation trusts also have a degree of discretion in adopting such conditions, although they overwhelmingly choose to honour and keep the existing terms and conditions.

If I recall correctly, the hon. Gentleman asked specifically about the view on the involvement of unions and staff where there was divergence or flexibility. I would hope that where there was any divergence or a need for flexibility, that would be addressed collaboratively. Ideally, there should be consent from those working in the organisation as well.

I turn to the proposals for very senior managers. I believe that procedures are already in place to ensure that the most senior staff within the NHS are appointed with fair and equitable salaries, and proposals to pay very senior staff more than £150,000 a year must follow benchmarks or be subject to ministerial oversight. Ministerial oversight of salaries higher than £150,000 a year has been effective in managing the risk of salary escalations, and it provides for a national outlook across the public sector.

The hon. Gentleman referred to the former Chief Secretary to the Treasury, my right hon. Friend the Member for North East Cambridgeshire, who is now the Minister for the Cabinet Office. I do not think there is any inconsistency in what my right hon. Friend envisaged with the review. That should not be interpreted as a criticism or an attack on hard-working staff, but given the amount of money that is spent in our NHS on salaries at all levels, it is right that from time to time the Government look at that, review it and reassure themselves that the appropriate balance is being struck between fair remuneration for the work that is being done and value for taxpayers. I do not think I would read any more than that into it; it is simply the Government and Treasury being responsible with public money.

The hon. Member for Ellesmere Port and Neston will be aware that the Government are in the process of finalising the system for pay oversight that will apply to ICBs. Although the specifics may differ, the effect and intention will be the same: to afford ICBs a degree of agency and flexibility, so that we can continue to attract the most senior and experienced leaders, while also ensuring that we put adequate checks and balances in place to ensure that public money is well spent. Therefore, I would argue that the amendment is unnecessary. Once again, I gently encourage the hon. Gentleman to consider not pressing the amendment to a Division.

[Justin Madders]

I am grateful to the Minister for his comments, but I fear that I will disappoint him on this occasion. He mentioned the flexibilities that already exist, which we do not seek to change. I do not see anything in the amendment that would alter those. We have had a very clear commitment, and he has mentioned the guidance. Indeed, he may write to me—

[Edward Argar]

As I do regularly.

[Justin Madders]

As he does regularly. I write to him regularly, too. He mentioned the importance of having this in black and white, and that is where we agree. We do need this in black and white, and the place for that to be is in the Bill, so we will press the amendment to a Division. I understand what he has said about ministerial oversight of ICB salaries, but if these bodies are to be locally run and accountable, we think the amendment would be entirely consistent with that aim.

Question proposed, That the amendment be made.

--- Later in debate ---

[Edward Argar]

It is right that we discuss this point today, because while the focus of the media is often on the 40 new hospitals being built—a very clear and understandable definition; I am sure any reasonable person could recognise a new hospital—we do not talk as often as we should in this place about primary care. It is often neglected in discussions, debates and headlines. It is right that we are talking about it today.

On the shadow Minister’s point about CHPs and similar, the Department exists to further the health of the population and to support local communities. There is a wonderful synergy in those objectives and outcomes.

I will turn to the substance of the amendment tabled by the hon. Member for Bristol South who, on this as on many things, knows of what she speaks, with her depth of experience in this space—I always tread slightly warily when responding to her challenges. As she alluded to, the amendment would allow an integrated care board to enter into an externally financed development agreement in respect of any Local Improvement Finance Trust relevant to the area for which it has responsibility, and to receive the income from that agreement.

We believe that the amendment is unnecessary, as the ability to enter into an externally funded development agreement is already covered by provisions in paragraph 20 of schedule 2. The provisions allow an ICB, which would take the local view of estates and other health matters,

“to enter into externally financed development agreements”

if the agreements are

“certified as such in writing by the Secretary of State.”

Such certification will be considered if

“the purpose or main purpose of the agreement is the provision of services or facilities in connection with the exercise by an ICB of any of its functions, and…a person proposes to make a loan to, or provide any other form of finance for, another party in connection with the agreement.”

We are clear that the wording of the provision would encompass a development agreement entered into with a LIFT company. If included separately in the Bill, as the amendment proposes, there is a risk that the interpretation of paragraph 20 of schedule 2 is that the Bill’s intention is to restrict the use of externally financed development agreements to those that involve taking a shareholding in LIFT companies, which is just one type of project company model that could be used to access private finance. That is why we believe that the amendment introduces a degree of ambiguity that is not currently there.

On the broader points raised by the hon. Lady about who has responsibility for the primary care estate and for investing in and upgrading it, she will be aware that it is a complex picture because of the nature of some GP surgeries—some own their own buildings, others will be in a health hub. My hon. Friend the Member for Bury St Edmunds—we remain ministerial colleagues in the same Department for the moment, but who knows what the future may bring—has done a huge amount of work with primary care to look at those challenges.

The hon. Member for Bristol South talked about hubs, or integration. One of the models being looked at—all the credit must go to my hon. Friend for this work—is the so-called Cavell centres that hon. Members will have read about, which are about looking at how we could have health hubs in town centres, bringing together a whole range of services. They are at an early stage of development, but it would be remiss of me to pass over that point without paying tribute to my hon. Friend for her work in that space.

On LIFTS more broadly, we are not envisaging any changes to existing LIFT company arrangements. They can still be used for the purposes for which they were originally set up. The hon. Lady has kindly indicated that she does not intend to press the amendment to a vote, but I hope that I have given her some clarity, particularly on why we think the provisions in paragraph 20 of schedule 2 will cover and continue to allow the arrangements to which she alluded.

[Karin Smyth]

I am grateful to the Minister for his comments, which I will read and understand carefully. We would still like our dividend back; it is an important principle of localism and, dare I say, accountability. We promised people that that is what they were getting. I will continue to pursue the matter in this place, but I am grateful to the Minister for his comments and, as I said, I will not seek to divide the Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the schedule be the Second schedule to the Bill.

[Edward Argar]

The schedule details essential information about how we expect statutory ICBs to function and about the essential criteria that ICB constitutions must fulfil. It sets out that ICB membership must, at a minimum, include a chair, a chief executive, representatives from local NHS trusts and foundation trusts, primary medical service providers and local authorities, known as “ordinary members”.

The chair must be appointed by NHS England and approved by the Secretary of State. The constitution must not provide for anyone other than NHS England to remove the chair from office. The power for NHS England to remove the chair from office must be subject to the Secretary of State’s approval. The chief executive must be appointed by the chair and approved by NHS England.

The ordinary members of the ICB must, at a minimum, include one member jointly nominated by NHS trusts and NHS foundation trusts that, as I have alluded to, require services in the area; one member jointly nominated by persons who provide primary medical services within that area; and one member jointly nominated by the local authorities within the ICB area.

--- Later in debate ---

[Justin Madders]

We will not divide the Committee on the schedule but as we have batted quite a lot of this about for a couple of days, it is worth reiterating some of our concerns in relation to how ICBs will actually work in practice.

Taking the Committee through the schedule, in paragraph 4 we have concerns about the chair having to be approved by the Secretary of State and, indeed, under paragraph 5 the chair can be removed by the Secretary of State, which could create tensions and speaks to the reality of how much autonomy these bodies will have. Paragraph 6(2) states:

“constitution must provide that a person is eligible to become or remain the chief executive only if the person is an employee of the integrated care board.”

That stands to reason, but the interim guidance on ICBs for the position of chief executive says that they must be employed or seconded to the ICB. Indeed, the chief finance officer, the director of nursing and the medical director can all be employed or seconded to the ICB, according to that guidance. We think that potentially represents a conflict of interest. It needs clarification, because what is in the Bill does not necessarily sit well with what is in the interim guidance. I wonder whether the Minister can clarify that.

Paragraph 7(1)(a) of the schedule talks about the constitution specifying who should be appointed as ordinary members. Again, the interim guidance helps in providing a list of suggestions regarding ordinary members. It is worth pointing out that, when we totted up all the people the guidance says are the minimum requirement for a board, it comes to 10 people. Although the Bill may say three, the reality is that the guidance says many more. Again, that speaks to the amendment that we tabled on Tuesday about the numbers on the board. The idea that the Bill is permissive is slightly betrayed by the detailed guidance. It depends on what is meant by “permissive”.

One particular mystery is in paragraph 7(3), which says:

“The constitution must set out the process for nominating the ordinary members”.

We know that ICBs will be able to set their own constitutions, approved by NHS England, but how the particular individuals on the boards will emerge still feels rather opaque. Of course, we hope that such things can be done by consensus and agreement. No doubt in the majority of cases they will be, but given the size of some of the areas it will be very difficult sometimes to get a geographical spread that represents the whole area and the various interest groups that constitute an ICB. Of course, diversity may also struggle to be accommodated within that. Such things are all fine and good in the Bill and in the guidance, but I think delivery on the ground will be slightly more difficult to achieve.

Paragraph 8 talks about qualification and tenure for membership of the board. I would be interested to hear the Minister’s comments on whether there is an optimal period of membership of a board. I think I saw two years somewhere in the guidance. I may be mistaken on that, but that seems a little short to me. I wonder whether he has a particular view on that. Paragraph 9 talks about constitutions being required to comply with any regulations that may come forward. Of course, the Bill has a lot of such clauses, where regulations will be produced in due course. I know this is slightly out of his control, but the Bill may not come back to us until much later in the year, if at all this year, depending on how the other place views it. That may mean that we are really down to the wire in terms of any enabling regulations that are needed under the Bill.

Paragraph 10 deals with the terms and conditions—a point that we discussed this morning. Paragraph 14 is quite interesting, because it talks about variation of the constitution, and how that should be done in consultation with NHS England. Indeed, NHS England will retain its own power to vary the constitution. It is important to put on the record that if such steps are taken to change the constitution, it is really important to involve stakeholders, the public, patients and workforce representatives. I hope that the Minister can fill me in on some of the details.

[Edward Argar]

I will try to address each of the shadow Minister’s points one by one, perhaps not in an entirely fluent way.

The hon. Gentleman asked about what he perceived to be an inconsistency between interim guidance and what is proposed in terms of secondees in similar employment. Actually, under paragraph 18(4) of schedule 2, the legislation allows for secondments to continue for those employed as chief executives. It specifies particular organisations, such as secondments from trusts, other parts of the NHS, such as NHS England, or indeed from the civil service. Given that specification, I do not believe that there is an inconsistency.

The hon. Gentleman touched on interim guidance and how that fits with what the Bill will look like once it is, as I hope, enacted. I would gently remind him that it is interim guidance—the key word being “interim”—to allow the continued evolution of ICSs at the moment, without pre-judging what the House may or may not do in terms of making them statutory. That guidance is there to allow them to continue on their path without having to sit and wait for the deliberations of the House on something that they are empowered to do and are already doing. I do not necessarily see the opacity to which the hon. Gentleman alludes but he may disagree.

The hon. Gentleman spoke about geography and the number of local authorities and other organisations involved. I suspect that he has got in mind his own particular geography of Cheshire and Merseyside and the size of the ICS there. That goes to the heart of why we are being permissive: we are setting out a minimum level, and therefore there is nothing to stop an ICS of that size, if it so chose, at ICB level to have a broader range of people sitting on it and a larger number. Each organisation will be able to judge what it thinks is the appropriate number of people to sit on its board to reflect the need for effective decision-making and effective local and organisational representation to reflect the broad geography of its remit.

The hon. Gentleman also asked about the optimal length of service on a board. I have to say in my experience, and I suspect in his from his days in local government, one sees a multitude of approaches in different public bodies. Some tenures are for two years or three years, or two years with a renewal presumed for another two years. I am not sure that there is a clear one size fits all, but there should be principles underpinning it, namely that one does not have someone who joins and never leaves the board, and one has to have the ability to refresh the board to bring in new skills. From my experience of sitting on various boards, including charity boards as a trustee or as a non-executive director, effective organisations need to conduct regular skills audits of their boards, to ask what has changed and what the organisation is lacking in the modern world. As time goes by, one needs different skills and different mixes of people. I would expect ICBs and ICPs to continue to look at what is needed to be at their most effective.

I hope that I have broadly addressed the main thrust of the hon. Gentleman’s points. The other points were those that he has quite rightly come back to, and which we debated at length when we considered his other amendments and those tabled by the hon. Member for Bristol South. On that basis, I encourage members of the Committee to support the schedule.

Question put and agreed to.

Schedule 2 accordingly agreed to.

Clause 14

People for whom integrated care boards have responsibility

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

The clause requires NHS England to publish rules setting out which people each ICB is responsible for. We intend to recreate as closely as possible the arrangements that currently exist for clinical commissioning groups. However, CCG responsibility is based on a model of GP membership that will no longer exist under the new ICB arrangements.

The clause places a duty on NHS England to publish rules determining the responsibility of each ICB, subject to certain exceptions that may be created by secondary legislation. This is intended to replicate the ability to make exceptions to the responsibilities of CCGs by regulations in section 3(1D) of the National Health Service Act 2006. As with the existing regulations, the new regulations would be subject to the affirmative procedure of the House, which I hope offers some reassurance to the Opposition Front Bench in respect of the regulation-making powers. Therefore, there would continue to be strong parliamentary oversight of regulations under the clause.

Proposed new section 14Z31 ensures that no one slips through any gaps. The rules set by NHS England must ensure that everyone who accesses primary medical services, as well as anyone who is not registered with a GP but is resident in England, is allocated to a group of people for which an ICB is responsible. In practice, we expect NHS England’s rules to be framed in such a way that ICBs will be associated with certain GP practices, and responsible for patients registered with those specified GP practices. They will also be responsible for people who are not registered but are resident in the ICB geographical footprint.

Taking that approach is intended to ensure universality of coverage and to minimise the disruption of transitioning from CCGs to ICBs. The clause also provides a power to replace the duty on NHS England to publish rules dealing with ICB responsibility, with an alternative approach based simply on residency. If it is considered appropriate in the future, those new arrangements would mean that ICBs were responsible for those who usually reside within their specified geographical footprint. Regulations would be required in order to change that approach.

The clause provides the necessary certainty about which ICB is responsible for which people. Without it, there could be significant confusion about ICB responsibilities, difficulty in calculating financial allocations to ICBs based on those they are responsible for and uncertainty for providers about which people they are contracted to provide services to. The clause seeks to provide fluent continuity with the arrangements under CCGs, and explicitly does not allow people to fall through gaps. Ultimately, everyone will be the responsibility of an ICB and will be able to access care when they need it. I therefore commend the clause to the Committee.

[Justin Madders]

I will make some comments on clause 14. I think the Minister has anticipated to some extent what I might say. I may well drift into clause 15 as well, but I promise the Committee that I will not repeat those comments in the discussion on clause 15. There is clearly an overlap here. It really is about the issue that the Minister referred to: who is entitled to what within the comprehensive NHS? For some, this is a formality, repeating the language used before and the principles on which the NHS was founded. For others, every word change and new clause that appears in the legislation is an attempt to restrict access and allow an opening for cuts to services to be made in a time of immense financial pressure. We want, and I think the Minister has opened the door to this, to ensure that that is not what the Bill is about.

To be fair, there is a history of commissioners trying on occasions to restrict access. There was the Croydon list of some 20 years ago. Primary care trusts set out lists of services and said that the treatments had little or no value and should not be provided on the NHS. Of course, that led to huge debates between trusts and medical practitioners. It could be argued that people were defending their own particular practices and specialties, or they could be said to be champions of the NHS. Patients looked at it from both perspectives, but for the patients who relied on those services it was a very real debate and a very real source of anxiety.

A more recent argument on this came from the various attempts to apply NHS charges to certain people who it was argued were not eligible for free treatment. There is a very sinister echo of the phrase “no access to benefits”. The long-held consensus appeared to be under threat—the principle that emergency NHS care is open to all. When American tourists come over here and have to seek emergency treatment they are pleasantly surprised, and somewhat bemused, that they do not have to produce a credit card at the point of use. This is where the arguments begin to arise.

If a patient is moved from an emergency bed for elective care, they can be charged if they are ineligible for free NHS care. The usual test is whether they are ordinarily resident in the country. On principle, if someone qualifies for NHS treatment, they can get it anywhere in the country, while on holiday. Most of us have taken our breaks this year somewhere in this country. We do not have to go back to our own local A&E to get treatment. We could, in theory, get our elective operations anywhere in the country, should we wish. Pre-Lansley this did not matter as much, because it was always payment by results. Ambulances crossing borders may occasionally result in a cross-organisational internal charge. Maybe we will see an end to that kind of bureaucracy.

The other argument that emerged during the Lansley period was around who the responsible commissioner within a particular area or population was. That market approach required tying people to a GP practice. The GP register has been a central base from which decisions were made. Did that really affect things on the ground? It certainly caused a lot of debate. It would be helpful if the Minister provided clarity.

The issue of access is important, and clause 14 sets it out in subsections (1), (2)(a) and (2)(b) of proposed new section 14Z31 of the National Health Service Act 2006. According to the NHS, access is universal, but depending on their immigration status within the UK, a person may be charged for accessing certain services. However, certain services are free to everyone: treatment given in an A&E department, though this does not include further treatment following admission to hospital; treatment for certain infectious diseases, but for HIV/AIDS only the first diagnosis and counselling that follow are free; compulsory psychiatric treatment; and family planning services, but this does not include termination of pregnancy or infertility treatments. People ordinarily resident in the UK or who have an exemption from charging will not be charged for NHS treatment. I could go into what ordinarily resident means, but I will not detain the Committee by going through all of that. However, it is fairly clear that it can be a British citizen or someone naturalised or settled in the UK, usually known as having indefinite leave to remain.

The Bill does not cover any of this, but there is a point about it not necessarily being the same person paying for and receiving the treatment. There are questions about those seeking asylum and those who might be denied care because there are questions about where they live. There was the image of a paramedic stepping out of an ambulance and asking someone suffering a cardiac arrest whether they had some kind of identification to prove that they were ordinarily resident. The images are not common ones, but they raise concerns. When the 2012 Act was debated, these issues were discussed at great length. I do not think the fears that were expressed at the time have manifested themselves. Does the Minister believe that using “usually resident” is better than “ordinarily resident”? I also wonder whether under proposed new section 14Z31, the NHS will publish rules as referred to. Could we have clarification on that?

[Edward Argar]

I will respond very briefly. The shadow Minister raises two key bundles of points. I hope that I can reassure him that the approach adopted here is far from restricting access. It is designed to ensure that everyone has an ICB covering them, ensuring universality of coverage. Similarly, the clause does not alter in any way the ability of anyone to access emergency care when they need it, nor those ordinarily resident in the UK to use the NHS as they do.

The second bundle of points he made related to charging regulations and those who are eligible to be charged under current regulations. While he highlighted a number of points, I genuinely believe that the charging regulations in place are appropriately and reasonably framed and strike the right balance in ensuring that people can access NHS care, while rightly making a contribution to the services they are accessing—obviously with certain things exempt from charging for public health and other reasons. I do believe they strike the appropriate balance. There is nothing in what we are proposing today that fundamentally changes people’s ability to access healthcare, nor indeed changes those charging regulations. On that basis, I commend clause 14 to the Committee.

Question put and agreed to.

Clause 14 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Maggie Throup.)

Health and Care Bill (Eighth sitting)

Edward Argar Excerpts

Committee stage
Thursday 16th September 2021 Public Bill Committees

[The Minister for Health (Edward Argar)]

I beg to move amendment 12, in clause 15, page 13, line 22, at end insert—

“(ba) medical services other than primary medical services (for primary medical services, see Part 4),”.

This amendment makes it clear that integrated boards have a duty to commission secondary medical services (replicating the current position for clinical commissioning groups). Although secondary medical services would appear to fall within new section 3(1)(f) and (g), in the existing legislation they are mentioned specifically so the amendment would continue that approach.

[The Chair]

With this it will be convenient to discuss Government amendment 13.

[Edward Argar]

It is a pleasure once again to serve under your chairmanship, Ms Elliott. Government amendments 12 and 13 are both technical amendments that clarify the commissioning responsibilities of integrated care boards. Clause 15 introduces proposed new section 3 of the National Health Service Act 2006, which places a duty on integrated care boards to commission a range of non-primary health services. The duty to arrange for the provision of primary care is dealt with elsewhere in the Bill.

In the Bill as introduced, there was no specific reference to medical services. Instead, non-primary medical services were considered to be covered by the broad provisions of new section 3(1)(f) and (g), and primary medical services were dealt with elsewhere in the Bill. Similarly, there was no specific reference to ophthalmic services. Instead, non-primary ophthalmic services were considered to be covered by the broad provisions of new section 3(1)(f) and (g), and primary ophthalmic services were dealt with elsewhere in the Bill.

However, the equivalent duties for clinical commissioning groups specifically reference these medical services and ophthalmic services, so the removal of an express reference to non-primary medical services and ophthalmic services generated some concern, which I hope to reassure the Committee is misplaced. There is no change of policy in this area, but to avoid any potential confusion these amendments put beyond doubt the fact that integrated care boards are responsible for these services, and replicate the current language.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

We will not oppose the amendments or, indeed, clause 15. I think it is important, as the Minister said, to make it very clear that the relevant provision in clause 15, proposed new section 3(1), on ICBs providing services that they consider necessary, does not mean that they can unilaterally withdraw services. That is the concern that has been raised, and I think it is important that it is on the record that that is not what is intended.

[Mary Robinson (Cheadle) (Con)]

In supporting my hon. Friend the Member for Stoke-on-Trent Central, I also ask our hon. Friend the Minister to clarify this matter. As we all know, the voluntary sector is hugely important for palliative care. So many people at the end of life want to go home. We also know, in relation to discharge from hospital, that we need to get people into the right place, with the right care, so it is hugely important that we do everything we can to support that sector and to relate it to end-of-life care and palliative care.

From a personal and local perspective, I will also say, on the care that is provided, that my constituency has an excellent hospice—St Ann’s hospice. It is celebrating its 50th anniversary this year, and lots of events are taking place. The hospice relies on funding from donations from local people and the wider public. It does an enormous amount of work.

If we are to provide the personalised care that we want to achieve, and if we are to enable people to be at home and to be cared for in different settings at the end of their life, it is really important that we consider this matter in relation to the Bill, so I welcome this change to clause 15.

[Edward Argar]

A number of the points raised by hon. Members, while touching on the amendments, will be addressed substantively in the clause stand part debate that is just about to take place. I do not think that there is anything further to add on the amendments.

Amendment 12 agreed to.

Amendment made: 13, in clause 15, page 13, line 24, at end insert—

“(ca) ophthalmic services other than primary ophthalmic services (for primary ophthalmic services, see Part 6),”.—(Edward Argar.)

This amendment makes it clear that integrated boards have a duty to commission secondary ophthalmic services (replicating the current position for clinical commissioning groups). Although secondary ophthalmic services would appear to fall within new section 3(1)(f) and (g), in the existing legislation they are mentioned specifically so the amendment would continue that approach.

Question proposed, That the clause, as amended, stand part of the Bill.

[Edward Argar]

In opening the debate on this clause, I highlight the contributions made by my hon. Friends the Members for Stoke-on-Trent Central and for Cheadle. I suspect that, in my winding-up speech, I may be responding to further questions on this. They are absolutely right to highlight the amazing work that is done by hospices and various charities and organisations in providing end-of-life and palliative care. When I come to my conclusions, I hope to be able to offer further reassurances to my hon. Friends, who I know take a very close interest in this area, and, quite rightly, have championed it in the Committee today.

Clause 15 substitutes a new section 3 into the National Health Service Act 2006, which replaces the clinical commissioning group equivalent with one that requires integrated care boards to commission hospital and other health services for those persons for whom the ICB is responsible. The clause lists those things that the ICB must arrange for the provision of, which includes, but is not limited to, hospital accommodation, nursing and ambulance services, dental services, diagnosis, care, treatment and aftercare of people suffering illness, injury or disability. In proposed new section 3A, the clause also provides a power for ICBs to arrange for other services or facilities that they consider appropriate to secure improvement in the physical and mental health of people for whom they are responsible.

The clause makes it clear that the duty on an ICB to arrange services does not apply if NHS England has a duty to arrange for their provision. The clause gives ICBs a clear purpose, without which it would not be obvious which bodies in the system are responsible for commissioning which parts of the comprehensive health service that we all want to see.

I should note that ICBs will not be the sole commissioner in the system. As I have just alluded to, NHS England will remain a commissioner for some services best commissioned nationally, such as specialised services. The clause also allows us to very clearly divide responsibilities between NHS England and ICBs. Between NHS England and the ICBs, the NHS will continue to commission a comprehensive health service free at the point of delivery for all who need it. I therefore commend the clause to the Committee.

[Karin Smyth (Bristol South) (Lab)]

I rise to support the comments that were made earlier. I had indicated to the Minister that I would raise the issue about stating very clearly that the terms “care” and “after-care” in proposed new section 3(1)(f) include palliative care and services at the end of life. We have had a 36% rise in the number of people dying at home during the pandemic. That may be a result of choice, but, as someone who has supported someone at the end of their life at home, it is only possible through end-of-life services, including GP services and the Marie Curie overnight nurse. I do worry desperately about the percentage of people who are dying at home. It will be a huge issue for these organisations in the future to manage that positively. The Minister’s assurance that palliative care and end-of-life services are very much the responsibility of these boards would be most welcome.

[Edward Argar]

I will respond only briefly, because the only outstanding point that the hon. Lady rightly made was about paragraph (f). My understanding is that palliative care services and similar, as she has alluded to, would be captured under that paragraph. She is right, as are other Members, to highlight just how important those services are as continuing care or aftercare for patients. I give her the reassurance that my understanding of paragraph (f) is that it would encompass the services to which she has alluded.

[Karin Smyth]

Thank you.

Question put and agreed to.

Clause 15, as amended, ordered to stand part of the Bill.

Clause 16

Commissioning primary care services etc

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 28, in schedule 3, page 126, line 28, leave out “person” and insert

“general practitioner, GP partnership or social enterprise providing primary medical services”.

This amendment would prevent an integrated care board from entering into or renewing any Alternative Provider Medical Services (APMS) contract.

Amendment 29, page 126, line 32, leave out “person” and insert

“general practitioner, GP partnership or social enterprise providing primary medical services”.

This amendment would prevent NHS England from entering into or renewing any Alternative Provider Medical Services (APMS) contract.

That schedule 3 be the Third schedule to the Bill.

Clause 17 stand part.

[Edward Argar]

With your permission, Ms Elliott, I will first turn to clause 16 and schedule 3, and then discuss amendments 28 and 29, before concluding with clause 17.

Clause 16 gives effect to schedule 3, which makes provision for integrated care boards to take on responsibility for primary care services. The schedule allows for the conferral of functions relating to the commissioning of primary medical, dental and ophthalmic services on ICBs and contains related amendments. NHS England is currently responsible for arranging these services, but in future, once ICBs are fully established and ready to take on these functions, we intend for ICBs to hold the majority of them. This approach will ensure that decisions about services are made closer to the patient and in line with local population needs.

The schedule introduces a number of provisions to enable the transfer of these functions. The schedule includes equivalent provisions relating to primary medical, dental and ophthalmic services. That is to ensure flexibility, as it allows the different services to be conferred on ICBs over a period of time if that is deemed the most effective and efficient approach. The Bill is designed for the future, and we want to work with the system to support it to move at the right pace and offer patients the best care at all times.

The schedule provides for regulations to define which services should be regarded as primary medical, dental and ophthalmic services for the purposes of the Bill. The services that are classed as primary care services may vary over time and so these powers allow the Secretary of State to react to any such changes. The powers restate similar powers that are currently found in the National Health Service Act 2006. This provision places a duty on ICBs to provide primary medical, dental and ophthalmic services for those people for whom the ICB is responsible and allows ICBs to enter into the necessary arrangements in order to do so. To date, NHS England has always been responsible for dental and ophthalmic services, but the commissioning of primary medical services has been successfully delegated to clinical commissioning groups for some time. These provisions will ensure that primary care continues to be at the centre of delivering joined-up care to local communities—many members of the Committee have highlighted that—in partnership with wider health and care services in the area.

The schedule requires each ICB and NHS England to publish any information that may be prescribed in regulations concerning the provision of primary medical, dental and ophthalmic services. To ensure that appropriate safeguards are in place once these responsibilities are transferred, NHS England will have powers to direct ICBs as to how they should exercise their primary medical, dental and ophthalmic care functions.

In addition to primary care services, the Secretary of State will have powers to require NHS England to exercise pharmaceutical services, which can, in turn, be delegated to the integrated care boards. NHS pharmaceutical services are generally not directly commissioned, and the schedule continues to allow for that consistent approach to be followed.

The schedule makes provision for the necessary technical and consequential amendments to reflect the new provisions within it relating to primary care services. It is crucial for establishing ICBs as the key commissioners for the NHS in England in the future.

I am grateful for the opportunity to debate amendments 28 and 29. I will address what I read into them at this stage and if I have misrepresented them, I will of course seek at the end, as appropriate, to address any misapprehensions I may have set out. I fear that the amendments would prevent an ICB from entering or renewing a contract with some private and third-sector organisations for the provision of primary medical services. Although the explanatory note for the amendment says this will

“prevent an integrated care board from entering into or renewing any Alternative Provider Medical Services (APMS) contract”,

I have been advised that it would actually go much further than that limited objective, as limited companies can currently also hold general medical services and personal medical services contracts. The amendment would bar some of those companies from doing so, which would have a potentially devastating effect on primary care at a moment when the Under-Secretary of State for Health and Social Care, my hon. Friend the Member for Bury St Edmunds, is working flat out to build capacity in primary care.

--- Later in debate ---

[Edward Argar]

I fear she is sitting behind me.

[Karin Smyth]

It is not a negotiation that anyone looks forward to with relish, but we need to take a good, strong look at the model now. This policy is not the route, and my hon. Friend the Member for Nottingham North has described perfectly why it is not. It is of deep concern. These large organisations are not part of the local community. It is completely against the thrust of this Bill, which is about place-based, locally accountable systems. The Government would be wise to take his advice and perhaps come back with something else. We seek assurance that this policy is not being developed further, because that would be of even greater concern.

[Edward Argar]

I can reassure the hon. Member for Bristol South. I fear she misheard me when I was saying that we were encouraging primary care commissioners to go further in developing primary care provision—that was not necessarily this model. Forgive me if I was unclear on that, and I hope that gives her a little reassurance on that point.

To address a number of the other points that the shadow Minister primarily made, I suspect his fears are not borne out in reality. I suspect he will none the less, as we cannot accept his amendment, press it to a vote to highlight the issue, and that is his prerogative. I come back to the point that flexibility in this space is hugely important. The examples given by the hon. Member for Bristol South about the challenges in primary care provision are a good argument for why we need this flexibility. We know that some practices, which are GPs’ private businesses contracted to the NHS, on occasion will collapse or a partner will retire and a surgery will cease to operate, especially if no one wishes to take it over. Therefore it is important that these flexibilities are available to commissioners to ensure GP practice coverage.

[Karin Smyth]

Just to be clear—my apologies for mishearing the Minister previously—such closures are a sign of failure. The answer is to negotiate the contract better and to modernise a clear contract, not to use this vehicle. That was my very clear point.

[Edward Argar]

I take the hon. Lady’s point, but it would be a sign of failure not to build flexibility for all eventualities into the arrangements we have at the disposal of commissioners and into what my hon. Friend the Member for Bury St Edmunds is trying to do to build resilience into the system. I very much hope that she will continue to do so, or will ascend in the next few hours to something else. That is why flexibility is at the heart of this measure and why we cannot support the amendment of the hon. Member for Nottingham North.

I will try to address a couple of points that the hon. Gentleman made. We envisage PCNs continuing to play a hugely important role locally in the provision of primary care services. My GP is actively involved in the local PCN in Leicestershire. I know, whenever I speak to him, just how much it has done, particularly in the past 18 months, to build resilience into the system and make sure it works. I know the value of those PCNs more broadly in, for want of a better way of putting it, more normal times.

The final thing the hon. Gentleman asked about was the delegation of currently nationally commissioned functions down to ICBs. The short answer is that he was right in his supposition that this is not a binary, one-size-fits-all measure. The reality is that NHS England will be looking at which ICBs and ICS areas are sufficiently developed that they can take on additional commissioning responsibilities. If he and I sat down, we would probably have a fair sense of which ones were already well advanced. It may be some where there is a mayoralty and there is already a significant amount of devolution in one or two areas. It may be others. We heard from Dame Gill Morgan in Gloucestershire, who clearly has a highly developed ICS in that area. I would be reticent about setting a black-and-white thing on meeting some criteria. There is a degree of subjectivity, which is why we will be reliant on the expert advice of our colleagues in NHS England, and they will make these decisions in the appropriate way.

I hope that gives the hon. Gentleman some reassurance on the broader clauses and schedule stand part. I fear I have not persuaded him in respect of his amendments, but it was worth a try.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Schedule 3

Conferral of primary care functions on integrated care boards etc

Amendment proposed: 28, in schedule 3, page 126, line 28, leave out “person” and insert

“general practitioner, GP partnership or social enterprise providing primary medical services”.—(Alex Norris.)

This amendment would prevent an integrated care board from entering into or renewing any Alternative Provider Medical Services (APMS) contract.

--- Later in debate ---

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

Clause 18 amends section 12ZA of the NHS Act 2006, which currently relates to commissioning arrangements by the board and the CCG. Elsewhere in the Bill, this has been updated to refer to newly merged NHS England and ICBs instead. The purpose of the clause is to allow those arrangements to be efficient and work smoothly so that ultimately patients are provided with the best service.

In essence, the clause would allow NHS England and integrated care boards to choose to enter more flexible arrangements with providers of NHS services, allowing flexibility for providers to tailor services to best meet the health needs of the population. For example, the management of long-term conditions such as diabetes can have complex care pathways. An integrated care board, through its commissioning arrangements, could allow a local trust to determine the range of services that will meet these needs in the local area. This includes the trust subcontracting services to other providers where they are best placed to provide some of those services.

The flexibilities provided by this clause will add to the ability of commissioners and providers to work together, using each other’s expertise to get the best outcomes for the entire system. I therefore commend the clause to the Committee.

Question put and agreed to.

Clause 18 accordingly ordered to stand part of the Bill.

[The Chair]

We now come to clause 19, to which 15 amendments have been tabled. Although amendments 77 to 79, 4, 56, and 80 to 82 have not been selected for debate as no member of the Committee has signed them, if any Member wants to move those amendments, would they please indicate?

Clause 19

General Functions

[Justin Madders]

I beg to move amendment 45, in clause 19, page 16, line 2, at end insert—

“(c) make arrangements to ensure that patients can access services within maximum waiting times in accordance with their rights in the NHS Constitution.”

This amendment places a duty on each integrated care board, in the exercise of its functions, to meet maximum waiting time standards.

The amendment would insert in clause 19 a new requirement on integrated care boards, in addition to the many requirements set out in the clause, to ensure that patients could access services within the maximum waiting times as set out in the NHS constitution. I expect the Minister will tell us that those requirements are already set out in the constitution and that the amendment is therefore unnecessary, but if the answer is that that is an effective tool for ensuring compliance, by any account it has failed.

In every aspect of performance, the NHS has gone backwards in recent years and there can be no doubting the strength of connection between that going backwards and the decade of austerity that the NHS has endured. It is more than five years since the 18-week standard has been met, and that has led to the record waiting lists we see now. In case there is any doubt about this, let me put it on the record that waiting lists were already at record levels before the pandemic, and despite all the fanfare from the Prime Minister following the national insurance rise, we still do not have a guarantee that they will go down during this Parliament.

Let us not forget why the last Labour Government introduced the standards. Years of underfunding under the 1979 to 1997 Conservative Government led us to a dark place. People were waiting months—sometimes years—to access treatment, and that was rightly identified as a priority to fix by the last Labour Government, who wanted to let record investment into the NHS, but also wanted to ensure that that investment was targeted and effective so that the NHS could be judged on its performance. As a result, the targets were introduced.

Targets and funding combined proved to be effective, which is why, by the time the Labour party left office, the NHS had record satisfaction levels and waiting times that today’s Secretary of State can only dream of. Little wonder the rhetoric in recent months has increasingly been that of scepticism about the benefit of such targets, culminating in the Secretary of State’s words at the weekend that the targets are, in fact, “nonsense”. Well, I think we can see what is going on. Targets have got hopelessly out of reach and there is no real plan for to how to change that, so the Government seek to undermine and ultimately change—or remove altogether—the targets, so that poor performance is disguised or played down.

That does a disservice to the patients who are waiting months—in some cases, sadly, years—for the treatment that they are entitled to. Most of those people will be in significant pain. All will be unable to live their lives to the extent that they would like. Some may be unable to work or undertake other physical activities. We do not need to go through the full list; we can all understand the impact that waiting for treatment can have on individuals. In many cases, their lives are effectively put on hold. They deserve better. The amendment would make it clear that their rights as patients under the constitution meant something and that the ICBs should be expected to focus on delivering those standards.

[Edward Argar]

I am grateful to the shadow Minister for tabling the amendment and giving us the opportunity to debate it. Of course we understand the importance of reducing waiting times. The Government are committed to increasing activity, tackling backlogs and ensuring that patients can access timely healthcare, backed up by the record investment announced by the Prime Minister and the Chancellor—indeed, some might agree, to a degree copying what the Labour Government did in putting up national insurance.

For instance, to tackle backlogs and drive up activity, the Government are providing £2 billion of elective recovery funding, which is double our previous commitment, and we are working to encourage innovation to help patients to get the care they need. In his remarks, the shadow Minister highlighted funding. I would point out to him the fact that, despite inheriting a note saying “Sorry, there is no more money,” we have continued to increase spending on the NHS.

--- Later in debate ---

[Justin Madders]

I beg to move amendment 58, in clause 19, page 17, line 4, at end insert

“through working with innovation and life sciences ecosystems, facilitated by Academic Health Science Networks, to ensure patients and the public have timely access to transformative innovation.”

This amendment would mandate Trusts to work with AHSNs to promote innovation in health services.

Innovation has allowed us to conquer certain diseases and come up with better and more effective treatments for others. It is integral to societal progress and is a major source of inspiration, new opportunities and, indeed, new financial burdens for the NHS. Most importantly, it means improved outcomes for patients. Innovation needs to reach patients if we are to get the full benefit of the many incredibly talented people who make up our academic and research community.

Academic health science networks have an informal role in the NHS, and there is no obligation on any CCG to work with them to ensure that new, innovative medicines are available. There are 15 academic health science networks across England, which were established by NHS England in 2013 to spread innovation at pace and scale, improving health and generating economic growth. Each network has a distinct geography, covering a specific population in each region—it almost sounds like an integrated care system, but there are not quite as many. They are the only bodies that connect to the NHS and the academic organisations, and are catalysts that create the right conditions to facilitate change across health and social care communities with a clear focus, as we believe should be the case, on improving outcomes for patients. We think they are uniquely placed to underline and spread innovation at pace and scale, driving the adoption and spread of innovative ideas and technologies across large populations, but their effectiveness rests on their ability to bring people, resources and organisations together quickly, delivering benefits that could not be achieved if they operated in isolation.

Everything those bodies do is driven by two imperatives: improving health and generating economic growth in our regions. They are the only partnership bodies that bring together all partners across a regional hub economy to improve the health of local communities. They have a remit from NHS England to occupy what is effectively a unique space outside the usual NHS service contracts and performance management structures, enabling them to collaborate to foster important solutions.

Those bodies use local knowledge to harness the influence of partners to drive change and integrate research within health improvements. They are interested in seeing healthcare businesses thrive and grow, creating jobs, bringing investment and seeing the system improve. They have a different focus, but they share the following priorities: promoting economic growth; fostering opportunities for industry to work effectively with the NHS; diffusing innovation; creating the right environment; and supporting collaboration across boundaries to adopt and spread innovation at pace and scale. They improve patient safety by using knowledge, expertise and networks to bring together patients, healthcare staff and partners to determine priorities and to develop and implement solutions. They optimise medicine use—[Interruption.] Perhaps I have predicted what the Minister was about to say?

[Edward Argar]

I am envying the shadow Minister’s breath control as he runs through his list.

[Justin Madders]

I am merely trying to ensure we make good progress today.

Those bodies ensure medication is used to maximum benefit, including safety and making efficient use of NHS resources. They improve quality and reduce variation by spreading best practice—we often talk about the variation among outcomes across different parts of the country. They put research into practice, collaborate on national programmes, and have a unified focus on various initiatives, including the NHS innovation accelerator and patient safety collaborative programme.

The amendment would bake in that good work, some of which I have outlined, by including those bodies within the scope of proposed new section 14Z39 of the National Health Service Act 2006 regarding innovation.

[Karin Smyth]

I rise to support my hon. Friend. We have rightly criticised much of what has happened in the last few years, but we should also remember that some amazing partnerships and networks have developed, including in my area—Bristol, north Somerset and south Gloucestershire—with the universities and others in both primary and secondary care, bringing together clinicians, researchers and so on. They stumbled initially as things were difficult at the beginning, but they have come together very well. They are well regarded—variable but well regarded—and are a useful source of innovation coming together, so I fully echo my hon. Friend’s comments.

[Edward Argar]

I am grateful to the shadow Minister, the hon. Member for Ellesmere Port and Neston, for facilitating the debate on this matter, and, as I said, I admire his ability at pace and fluently to rattle through a long list of examples.

As the shadow minister said, the amendment relates to the role of ICBs and ICPs in relation to innovation. First, I want to reassure the Committee that I share his view on the vital importance of research to the NHS and the UK more widely. We are committed to being a research superpower and fully support research and innovation in the NHS and the public being given timely access to transformative medicines and treatments resulting from that innovation.

The example we would all use at the moment is vaccine development. That is a phenomenal example, and it is at the forefront of many of our minds. That is why we have replicated the research duty on CCGs for ICBs to continue a system that has been working well. We are fully supportive of research and ensuring that effective health, public health and social care services are delivered, but we cannot support the amendment.

--- Later in debate ---

Better patient outcomes can of course arise directly from involvement in trials and indirectly through a better functioning health system. I would argue that research needs mandating as it is otherwise all too often pushed to the back of the queue in a short-sighted attempt to maximise clinical output from staff. I would be grateful if the Minister considered that as the Bill proceeds.

[Edward Argar]

I am grateful to my right hon. Friend the Member for Kingswood for tabling his amendments and allowing us to have this debate. As has been mentioned, he was both my distinguished predecessor in this role and a very distinguished Minister for universities and research.

Amendments 7 and 8 relate to requiring ICBs to work together with higher education institutions and to their research duty. With the consent of the Committee, and with yours, Ms Elliott, I will start with amendment 8 and revert to amendment 7. Amendment 8 would alter the statutory duty placed on ICBs to promote education and training when exercising their functions to assist the Secretary of State and Health Education England in the discharge of their statutory duties. The Government believe that integrated care boards should promote education and training for people who are employed or considering becoming employed in the provision of NHS services, and that is what proposed new section 14Z41 of the National Health Service Act 2006, in clause 19, achieves that. This provision mirrors the duty currently imposed on clinical commissioning groups. In discharging the duty, ICBs will invariably work with higher education institutions as well as other educational providers as they consider appropriate.

At this point, the Department does not think that it necessary to mandate specific details of how ICBs should discharge that duty under proposed new section 14Z41, particularly as NHS England will have a power to issue guidance to ICBs on the discharge of their functions, which should serve to clarify the system. The draft guidance published by NHS England and NHS Improvement in August 2021 states that the delivery of ICBs’ responsibilities will include working with educational institutions to develop the local future workforce across the health and care system. We believe that that guidance sends a strong signal to the system of the importance of the issue, reinforcing the statutory duty that ICBs will be under to promote education and training. Furthermore, it is worth noting in that context that ICBs will not be the only place in the system where engagement with higher education institutions will be taken forward.

HEE works extremely closely with higher education institutions and other education providers both nationally and through non-statutory regional people boards, jointly with NHS England, to ensure that the education and health systems are producing the right number of people with the right skills for our NHS. For example, Health Education England has already offered to support ICBs through the provision of workforce development support.

I will now turn to amendment 7, before wrapping both amendments together. I start by reassuring my right hon. Friend and other hon. Members who have spoken in this debate that the Government remain fully committed to supporting research as part of our NHS. Currently, clinical commissioning groups are under a duty to promote research; the Bill places the same duty on integrated care boards. That duty is discharged in a variety of ways—for example, with some CCGs having research strategies or research offices, providing details on how people can participate in research locally, or being partners in research organisations. Rather than being direct funders or directly conducting research themselves, the role of integrated care boards is to facilitate and enable research.

A duty to promote research gives greater flexibility for integrated care boards to determine how best and most effectively to engage with and encourage research in their local system. For example, NHS Liverpool CCG is the host organisation for the National Institute for Health Research Applied Research Collaboration North West Coast, while NHS Norfolk and Waveney CCG has a dedicated primary and community care research office, which works with a range of stakeholders, including academics, to develop and support the delivery of healthcare research across the area.

The amendment would modify the research duty on integrated care boards by replacing a requirement to promote research on relevant health service matters with one to “support the conduct” of that research. It also contains an additional requirement for ICBs to work with universities and other research settings to support the development of the health research workforce and careers.

We believe that there would be relatively little practical impact from changing the duty to one of supporting the conduct of research, and that there would be the potential to cause some confusion to staff moving from CCGs to ICBs as to what was expected of them. On the question of developing the health research workforce and careers by working with universities and other research settings, there is a risk in highlighting universities in particular, as that might imply an exclusion of other education facilities, although I know that that is not the intent. Furthermore, I have already highlighted the effectiveness of the proposed education and training duty, which includes the research workforce. Finally, the duty in relation to promoting the use of evidence and research is already part of the existing ICB duties.

I hope that, given those reassurances, my right hon. Friend the Member for Kingswood will not feel that he has to press his amendments to a vote. I look forward to continuing to speak with him as proceedings on the Bill continue, to ensure that when it becomes law, we end up with something that accurately reflects what we need in order to carry on being a powerhouse of innovation and research.

[Chris Skidmore]

I thank the Minister for his considered comments on these amendments. They are probing amendments, and I do not intend to press them to a vote. I hope, however, that the Department will consider not only the discussion that we have had in Committee today, but a letter that was sent to the Minister’s office on 14 September from Universities UK, the Medical Schools Council and the Council of Deans of Health, which have all signalled their support for a form of words in an amendment that recognises the potential difficulties about placement planning and the opportunities represented by putting measures in the Bill about ICBs demonstrating integrated working.

I have been in Bill Committees before—I am now legislating to take out a lot of what I legislated for 10 years ago, when I was dealing with what became the Health and Social Care Act 2012. These Bills do not come around very often, so we have a fantastic opportunity, as the oral evidence sessions demonstrated, and I fully appreciate it. I have removed and re-tabled one of my amendments, to clause 33, as a result of the feedback from the oral evidence sessions.

There is a tension about how prescriptive we should be when the very culture of the Bill is about locally led practice and delivery and ensuring that we give health service managers and clinicians the opportunity to decide what is best for their local areas, so I do appreciate that prescription here may be unnecessary, but I felt it was important that I raised this as an opportunity to make a change in the Bill.

When it comes to clause stand part, I would like to speak more generally on clause 19 about the value of research, which my hon. Friend the Member for Vale of Clwyd has spoken about. I think we have an opportunity—it is one that I do not want to miss—when it comes to embedding research within the future of the NHS. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Edward Argar]

I am grateful to the hon. Gentleman, and I share his view that it is crucial that integrated care boards co-operate with the Domestic Abuse Commissioner. I think I speak for the whole Committee when I say that we agree that the health and social care system has a crucial role in preventing and tackling domestic abuse, and in supporting victims who experience this horrendous crime. Indeed, before the last reshuffle, when I moved from Justice to Health, I was one of the Ministers working with the Under-Secretary of State for the Home Department, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), on the genesis of what is now the Domestic Abuse Act. Therefore, we wholeheartedly welcome the introduction of the Domestic Abuse Commissioner’s role in the Act.

The commissioner has a vital role to play in monitoring the response to domestic abuse, sharing best practice and challenging bodies, including in health and social care, to go further and to do more. The commissioner will require information, support and co-operation from integrated care boards as well as a range of other public bodies. That is why the Domestic Abuse Act contains a duty to co-operate with the Domestic Abuse Commissioner, and we have made it clear that that will apply to integrated care boards and their component parts. It will also apply to requests for information from the commissioner. That is a little more than one word, but I hope I have reassured the hon. Member for Nottingham North that there is already such provision, as there should be. I hope that he will feel able to withdraw his amendment.

More broadly, the Department for Health and Social Care will be taking steps to ensure that integrated care boards also have the right guidance and support to ensure that they fulfil their duties in relation to domestic abuse, as well as violence against women and girls, and sexual violence more broadly. We will be following the Government’s recent violence against women and girls strategy by engaging with current ICSs, the wider sector and the commissioner, so that we identify best practice and share that guidance across the system to ensure that all parts of the system play their part.

[Alex Norris]

I am grateful for that answer and clarification. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

This clause inserts 31 new sections into the NHS Act 2006. It is the cornerstone of the integrated care board provisions, as it sets out the functions and duties that ICBs are required by legislation to fulfil. Clause 19 contains a number of provisions and duties in respect of ICBs. Given the importance of these provisions in the Bill, I will take Members through them, if they will forgive me, in a little detail.

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[Hywel Williams (Arfon) (PC)]

It is a pleasure to serve under your chairmanship, Ms Elliott.

I have some questions for the Minister about the cross-border joint committees. I would, of course, be happy if he could answer them this afternoon, but he if wishes to have a period of further consideration I would be content for him to write to the Committee with the answers.

Clause 19 sets down the prescribed functions of an integrated care board that can be exercised jointly with the local health board in Wales. This is to be the responsibility of joint committees. The clause replaces the regulations in the National Health Service Act 2006, which provide that any prescribed functions of a clinical commissioning group can be exercised jointly with local health boards. The immediate questions for me are quite obvious—the who, what, why and how sort of questions—and I have not seen any details on this matter as yet, although I might have missed something.

As to my questions to the Minister, first, the why is quite clear: people from Wales access specialist services in England, as I am sure the hon. Member for Vale of Clwyd would point out if I did not. People from border areas, but also from the far north-west of Wales where I live, access services in Manchester and are very glad to do so. Indeed, people from England access services in Wales as well, although that is less remarked on. Cross-border traffic is usually couched in terms of dependency from Wales, but it might interest the Committee to know that in 2019, 13,500 people from Wales accessed GP services in England, while at the same time, 21,000 people from England accessed GP services in Wales. That might, of course, be something to do with the free prescriptions provided by the Labour Government in Wales—I could not possibly comment.

To be clear, as a Plaid Cymru Member and a nationalist, I think co-operation is not just desirable but essential to ensure that fair and effective cross-border arrangements are in place. There will, no doubt, be opportunities to compare and contrast and to learn from each other. As I said, however, I would like the Minister to address some of my questions. This is not an exhaustive list.

First, to what degree have the Welsh Government played a part in drawing up the arrangements for joint committees? I am sure there have been discussions. For example, how will the membership of joint committees be decided? There has been a good deal of concern in debates in this Committee about private providers having seats on ICBs, as we have already heard. Pertinently to this matter, the private sector has a lesser role in the provision of health and social care in Wales. We are not talking about identical services here. The private sector might have a greater prominence on the other side of the border. Has it been agreed with the Welsh Government that private providers are to have seats on joint committees or not? If so, what safeguards will be in place to prevent the conflicts of interest that were referred to on Tuesday?

What structures will be in place to ensure that there is national Welsh consistency in decision making between the joint committees along the border? Will there be a national framework, although perhaps that is the responsibility of the Welsh Government rather than the Government here in Westminster, for coming to agreements on the delivery of services, or will it be up to the local joint committees, with the danger of a postcode lottery? As I said, I think this might be a matter for the Welsh Government rather than the Government here in Westminster. It has been agreed, I hope, so I would like to know what was agreed.

Lastly, in respect of the detailed points, to whom will the joint committees be accountable: to their respective ICBs or health boards, to the Government, or to the ICB on one side and the Welsh Government on the other? How will that be done? Indeed, when consultation—wide consultation, I hope—is undertaken, will it happen across the border as well? Will Welsh patients be able to have their say? There are more questions that I will pursue, and more will surely arise as the joint committees begin their work. I hope the Minister appreciates that these matters need further explanation.

Finally, I have three broader points. Perhaps the Minister can clarify whether there have been discussions on these points and what has been decided about the services provided over the border. First, I am worried about divergence in health policy between Wales and England. There is a wellbeing approach to health in Wales, as I said in the debates on Tuesday. Might any difficulties arise from that? There might be some difference between what is available in Wales and what is available over the border.

Secondly—this is a particularly important matter where I live—has there been any discussion on whether services provided from England into Wales are consistent with the Welsh language requirements of the Welsh health service? I think there is a problem here, and some services provided into Wales from England are really aware of this. I think of the Robert Jones and Agnes Hunt Orthopaedic Hospital in Gobowen, which has Welsh-language services for people coming in from Wales. The hospital is just outside Oswestry, not far from the border. That is an issue to be examined, and perhaps to be answered by the Minister today or in a letter.

Lastly—this is more of a point in law, or possibly a philosophical point—can ICBs, which are ultimately the responsibility of the Government here in Westminster, be accountable to the Welsh Government, who have their power devolved from London? To put it more directly, can the Welsh Government peck up the pecking order towards bodies over in England? That has been a real question for services provided from outside Wales by Government bodies or agencies. Over many years, there has been quite a debate about bilingualism in the services provided into Wales by the Department for Work and Pensions. Again, that might not be a problem, but I would be grateful for the Minister’s views on this issue and on the other questions that I have raised.

[Edward Argar]

I am grateful, as ever, to my right hon. Friend the Member for Kingswood for his comments. I hope I can reassure him that the issues he raised, and the issues that he has aired in the Committee today, will continue to be reflected on carefully by officials and Ministers during the passage of the Bill.

I will try to address the specific points raised by the hon. Members for Ellesmere Port and Neston and for Arfon. The hon. Member for Ellesmere Port and Neston touched on the appointment of chief executives and the termination of appointments. That power is broadly akin to the current power that CCGs have, and we are simply moving across the power that NHS England has over CCGs to reflect the new environment of integrated care boards.

[Justin Madders]

I am grateful for the clarification from the Minister, but does that not expose our fear that, really, ICBs are just bigger CCGs?

[Edward Argar]

No, because at the heart of ICBs is an enhanced integration and partnership-working model, which will be a significant step forward to facilitate improved patient care in our constituencies and localities.

The power to make loans is analogous to the power that exists for CCGs.

The hon. Member for Ellesmere Port and Neston touched on forward plans and health and wellbeing boards. The ICB will have an obligation to consult the health and wellbeing board, including in respect of whether it takes into account the latest joint health and wellbeing strategy and provides the HWB with a copy of its plan.

On Wales, I fear that I may have to write to the hon. Member for Arfon with some of the answers, but I shall try to give some now so that he has at least something today. We are seeking not to make a policy change or anything like that but to carry the existing situation for CCGs across into the new arrangement. We have been consulting and working closely with the Welsh Government. I suspect that, as we heard from the witnesses, some in the Welsh Government may suggest that we should consult more closely, while others will say the consultation is adequate. I believe I have a good relationship with the Health Minister in the Welsh Government—I spoke to her only yesterday about a number of aspects of the Bill—and at official level conversations are constantly ongoing.

The hon. Member for Arfon touched on joint committees, which will involve ICBs and their Welsh equivalents. We would not expect private providers to serve on them because they will in effect exercise an ICB function. On Tuesday, I made it clear to the Committee that it is not our intention that private providers should serve on ICBs, so they should not serve on joint committees either. We will have further discussions with the Opposition Front-Bench team and others as to whether we can find a way to make that clearer in the legislation.

Finally, accountability remains essentially unchanged. The NHS in Wales is accountable to the Welsh Government and ICBs will be accountable to NHS England and, therefore, to the Secretary of State. The hon. Member for Arfon touched on the challenge of divergence or disparity of provision. I suspect that, in a sense, it comes baked into a devolution settlement that when power is devolved down there is sometimes a divergence of approach or there are different services. That is in the nature of any devolution settlement where specific services or functions are devolved. For example, as we have seen in our exiting from coronavirus regulations, the devolved Administrations have the right, under the settlement, to pursue the approach that they deem to be most effective.

I hope that I have addressed a number of the points made by the hon. Member for Arfon. I see my officials frantically scribbling down his other questions; we will endeavour to check Hansard and write to him with anything we have missed.

I commend the clause to the Committee.

Question put and agreed to.

Clause 19 accordingly ordered to stand part of the Bill.

Clause 20

Integrated care partnerships and strategies

[Dr James Davies]

I beg to move amendment 55, in clause 20, page 29, line 7, at end insert—

“(2A) When appointing members to the integrated care partnership, the integrated care partnership must pay particular attention to the range of services used by children and young people aged 0-25.”

This amendment would require integrated care partnerships to consider representation from the full spectrum of services used by babies, children and young people, including education settings.

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[Alex Norris]

I am grateful to the hon. Member for Eddisbury for tabling the amendments and to the hon. Member for Vale of Clwyd for stepping in to give the Committee a chance to discuss them. I agree completely with what he said about the Bill being a real opportunity on child health in this country and I hope that we can take it.

We should be saddened by what Barnardo’s said in its written evidence:

“Children growing up in England…face some of the worst health outcomes in Europe”—

particularly those growing up in poverty. That is really saddening, not least because even prior to the pandemic, according to Action for Children, over 4 million children were living in poverty, including a staggering, breathtakingly sad 46% of children in black and minority ethnic groups. We must seek to do better. These things should stop us in our tracks, given the wealth that we as a country have, the technologies we have, the schooling we have and the assets we have, yet we cannot give our young people, particularly the poorest children, the best start in life. That is really sad.

The only enhancement that I would make to the amendments is that, rather than making them about ages nought to 25, I would extend the range to include the six months prior to birth, because we know how important those services are. I hope, in that spirit, that we may hear some enthusiasm from the Minister and his Government about implementing all the recommendations of the Leadsom review. I know that it will be hard, because it will involve acknowledging some dreadful decisions over the past decade, such as the reduction in Sure Start but, nevertheless, that report has real potential to be the bedrock for a return to something much closer to proper early intervention in this country. We might not have the saddening and completely avoidable outcomes that we have, so I hope that we hear some good news from the Minister on that.

[Edward Argar]

I am grateful to my hon. Friend the Member—I cannot pronounce that—and to my hon. Friend the Member for Eddisbury, on whose behalf my hon. Friend for Vale of Clwyd spoke. I also wish to put on the record my gratitude to Lord Farmer and his team for the work that they have been doing in this space. I have had the pleasure of meeting them, and—to reassure the shadow Minister—I have already met once, or possibly twice, with my right hon. Friend the Member for South Northamptonshire (Dame Andrea Leadsom) to discuss her review. I know that my hon. Friend the Member for Bury St Edmunds has also worked with her on it, and we continue to work together to try to find ways to move that forward.

I hope that all Members agree that the creation of integrated care boards and ICPs represents a significant opportunity to support and improve the planning and provision of services to make sure that they are more joined up and better meet the needs of infants, children and young people. We acknowledge that these amendments understandably intend to ensure that the needs of children and young people aged 0 to 25 are represented on the ICP and are considered by the ICP when developing its strategy. While we entirely agree with the intentions behind the amendments, we come back to the point that we wish to provide local areas with the flexibility to determine what will work best for their systems, their priorities and how they develop their plans and membership. Overly prescriptive approaches in the Bill would risk making it harder for systems to design the approaches that will work best in their area.

Turning to amendment 54, we would not want ICPs to create plans for children disconnected from the wider healthcare system. We know that the very best systems consider how their health systems are meeting everyone’s need, including where there are transitions between different stages of life. However, I do hope that I can provide some further comfort for my hon. Friend the Member for Vale of Clwyd. We are working on bespoke guidance for babies, children and young people, which will set out clearly how ICBs and ICPs are obliged to deliver for them. This will cover the importance of the ICB forward plan and the ICP strategy and how they can set clear objectives for babies, children and young people. The Department is working closely on the drafting of this guidance with NHS England, the Department for Education and, indeed the relevant Minister, my hon. Friend the Member for Chelmsford (Vicky Ford)—I presume that she is still the relevant Minister as we speak. We will also be working with all stakeholders, including the National Children’s Bureau, in the coming months. I suspect that this is a theme and an issue that we will return to at various points both in Committee and indeed in the further passage of this legislation.

I hope that I can reassure my hon. Friend the Member for Vale of Clwyd on this matter. I entirely understand where he is coming from, but ask that, on this occasion, he does not press his amendment—or the amendment of my hon. Friend the Member for Eddisbury—to a vote.

[Dr Davies]

I thank the Minister for that response. I know that my hon. Friend the Member for Eddisbury is particularly keen that these matters are covered within statutory guidance, but, with the leave of the Committee, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Karin Smyth]

Will the Minister share with us what he thinks the difference is between ICPs and health and wellbeing boards?

[Edward Argar]

I will confine my comments to amendments 47 and 83, because we will address the wider themes when we have the clause stand part debate.

Amendments 47 and 83 stand in the names of Opposition Members. The shadow Minister, the hon. Member for Ellesmere Port and Neston, has asked a number of questions, which I will try to address before turning to the substance of those amendments. I am not personally aware of any analytical piece about the impact and effectiveness of health and wellbeing boards, but anecdotally from my background in local Government before I came to this place—and, indeed, as a Member—I certainly see the value that they bring to their communities through their work. The shadow Minister is perhaps being a little inadvertently unfair to the legal profession in suggesting that the phrase “have regard to” is weasel words, because my understanding is that “have regard to” is a well-known, much-used legal phrase in drafting, and it carries with it an obligation to do exactly what it says: to have regard, and to show that.

Finally, the hon. Member has pressed me again, and I fear I will give him the same answer—he and I have done this before—as I have given the other shadow Minister, the hon. Member for Nottingham North, in various delegated legislation Committees over the past year relating to our exit from the EU. I think the Prime Minister has been entirely clear in what he has set out: this legislation lays important foundations for the closer integration of local authority and NHS-provided care, on which we will of course build, because we are an ambitious Government with a clear agenda to further improve our health and care systems.

With those points made, I will turn to the detail of the amendments, which address the relationship between ICPs and ICBs—as certain Opposition Members have touched on—and address divergence from health and wellbeing board and ICB assessments and strategies. Amendment 47 would require the Secretary of State to establish a procedure to resolve any disputes between the ICP and the ICB, while amendment 83 would add an additional requirement on NHS England, integrated care boards, and local authorities to make a public statement and publish their reasons when they deviate from the integrated care strategy prepared by the proposed integrated care partnership, and the joint strategic needs assessment and joint local health and wellbeing strategies prepared by health and wellbeing boards.

I do appreciate the concern—the genuine concern, I think—from Opposition Members about the need to ensure that ICPs and local authorities are genuinely closely aligned to both the ICP and the health and wellbeing board plans. We do intend for these assessments and strategies to be a central part of the decision making of these bodies: that is why, as I say, we are introducing a duty for those bodies to have regard to them. However, we do not think the additional conditions suggested by these amendments are necessary, as we believe there are already means in place to avoid such disputes. First, the ICB will be a required part of the ICP. It will be intimately involved in pulling together the integrated care strategy, so it should be fully signed up to the elements of the plan that fall within its area of responsibility, as it will be partly drafting that plan. As a result, we consider the likelihood of disputes in that context to be low.

Secondly, there are already duties on both ICBs and local authorities to have regard to the strategy in discharging their functions. The duty to have regard means that to diverge from the plan, they must be able to reasonably explain and justify why they have done so. If they cannot, they would be open to challenge, and in the case of an ICB, they could be open to direct intervention from NHS England for having failed to discharge their functions to have due regard properly. Thirdly, we would also expect that both health and wellbeing boards and ICPs would consider how their strategies and assessments are applied in the system, and would want to keep progress under regular review. Those committees themselves provide an appropriate framework for regularly assessing and considering how to address any divergence.

We are also concerned that it would be difficult to rigidly determine if and when NHS England, an integrated care board, or a local authority had diverged from these strategies and assessments in the exercise of their functions, especially if plans were high-level and strategic. By creating this specific requirement and setting a specified timeframe, I fear we would risk creating a great deal of bureaucracy as these bodies attempt to determine if, when, and to what extent they may have diverged. Instead, we believe it is more appropriate to leave it to ICPs working with the ICB and local authorities to develop and design mechanisms to review progress locally.

As a further safeguard, NHS England has the general power to issue guidance to ICBs on the discharge of their functions, which could be used to set out how an ICB should consider the integrated care strategy, joint strategic needs assessment and joint health and wellbeing strategy in exercising its functions. Guidance may also suggest ways of resolving any issues that arise in the ICB in the exercise of these functions. We would expect NHS England to consider doing so, if that was necessary.

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Question proposed, That the clause stand part of the Bill.

[Edward Argar]

The clause introduces the integrated care partnership known as an ICP, as a joint committee of the integrated care board and local authorities in its geography. It gives the partnership its core function of preparing the integrated care strategy. The ICP was developed with the Local Government Association and NHS partners in recognition of the fact that the system has been calling for two different and important types of integration: integration within and across the NHS to deliver healthcare services within a defined locality, and integration between the NHS and local government and wider partners.

The ICP is intended to bring together health, social care and public health to develop a strategy to address the needs of the area also covered by the integrated care board. If the ICP wants to go further, it can also involve representatives from the wider system where appropriate, such as voluntary and community groups, and social care or housing providers. That will be up to the ICP, and we will welcome locally driven innovation to reflect local circumstances.

When preparing the strategy, the integrated care partnership must take into account the NHS mandate, any guidance from the Secretary of State and any relevant local joint strategic needs assessment. The ICP must also involve the local Healthwatch, as well people who live and work in the area. The strategy will need to look at how local authorities and NHS bodies can work together using arrangements under section 75 of the National Health Service Act 2006.

Local authorities, integrated care boards and NHS England, when providing services in the area, must have regard to the relevant integrated care strategy when exercising their functions, as well as, more locally, any joint strategic needs assessment or joint local health and wellbeing strategies. This will enable more joined-up planning and provision, both within the NHS and in local authorities. As a result, we would expect to see more integration of the services people receive, more efficient and effective commissioning, and closer working between local authorities and the local NHS.

The clause makes it a legal requirement for all ICBs and local authorities to establish an ICP for their area. These partnerships will promote and facilitate integration across health and care throughout England, thereby contributing to delivering on the ambitious aims put forward in the Bill to further integrate health and care systems.

[Justin Madders]

I will not detain the Committee as I have already said most of what I wanted to say. The Minister just talked about the ambitious aims to achieve integration. Obviously, they were not that ambitious; if they had been, we would not need another White Paper.

[Edward Argar]

Even more ambitious!

[Justin Madders]

We can never be too ambitious, can we? I will be interested to see those working practices. As hon. Members can probably gather, we are somewhat sceptical that the ICPs will really be the transformative and influential bodies that we want them to be. I will keep a close eye on what kind of partners end up on them. If we started involving every potential body in the Cheshire and Merseyside one, we would probably need to hire out Anfield to fit everyone in. It might be more entertaining than the football fare on there—we could have a Division on that. We will probably revisit this in future days, weeks and months. We will not oppose the clause but we wish to put on the record where we think its shortcomings are.

Question put and agreed to.

Clause 20 accordingly ordered to stand part of the Bill.

Clause 21

NHS England’s financial responsibilities

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clause 22 stand part.

[Edward Argar]

The clause provides for a number of financial responsibilities of NHS England and provides powers for the Secretary of State to direct NHS England in relation to those responsibilities. Clause 22 provides the ability to amend the provision in clause 21 that imposes a duty on NHS England to ensure that its expenditure, together with that of integrated care boards, does not exceed the sums received in a year.

On clause 21, proposed new section 223C of the National Health Service Act 2006 places a duty on NHS England to ensure that in each financial year, the expenditure of NHS England and integrated care boards does not exceed the aggregate amount received by them. It should be noted that that is in the context of the historic settlement for the NHS reached in 2018, which will see its budget rise by £33.9 billion by 2023-24. Proposed new section 223CA simply replicates a provision in the 2006 Act, which enables the Secretary of State to specify the banking facilities that NHS England may use.

Proposed new section 233D of the 2006 Act enables the Secretary of State to give directions to NHS England concerning resource use. Any directions given by the Secretary of State under that proposed new section must be published and laid before Parliament. Proposed new section 223E empowers the Secretary of State to direct that the capital and revenue resource used by NHS England and ICBs for specified matters does not exceed a limit set.

Clause 22 could be commenced at a later date than clause 21. It would expand the duty on NHS England to ensure its own expenditure, as well as that of ICBs and English NHS trusts and foundation trusts, did not exceed the sums received by those bodies in a year. The clause is essential to ensure that achieving financial balance is inclusive of the finance of NHS trusts and foundation trusts. It recognises that NHS England must be mindful of the need to ensure that public money is spent as effectively as possible and in the best interests of the public we serve. However, we recognise that the NHS is moving out of an unprecedented period, so we will not commence the clause until it is ready. The provisions will help to ensure that there is clear accountability for public spending and that the NHS lives within its means.

[Justin Madders]

I will talk briefly about clauses 21 and 22, although with your indulgence, Ms Elliott, I will step over into clauses 23 and 24, because we cannot really look at these points without having some regard to those clauses. I promise I will not repeat the same points when we get to them.

We know that ICBs and NHS trusts will have spending limits, and that in theory they cannot go into deficit in any year, but the combined deficits of trusts before the pandemic was several billion pounds. Foundation trusts are in a slightly different position. Monitor is going—clause 26, which I suspect we will not get to today, goes into that, and it reads quite brutally in isolation—so it needs to be clear in the Bill how performance management and financial oversight will work in its absence. We still have questions about that, particularly how accountability will work with those new systems.

We see in these clauses a basic tension that NHS England will apply totals to systems, but individuals within the systems all have their own duties and responsibilities. We might think it is the ICB plus all the providers that deliver the services required, which are paid for by the ICB, but I am not sure that is how it will work in practice.

If I am correct, an integrated system is not defined in the Bill, so how do we control something that does not exist in law? Where accountability lies is very vague. The terminology used in proposed new section 233M, which is where the Bill tries to constrain aggregate financial spending each year, is:

“Each integrated care board and its partner NHS trusts and NHS foundation trusts”.

That suggests some kind of joint responsibility, but where community health services are provided by Virgin Care, that does not appear within that wording. GPs and their spend are considered outside, even though they are commissioned by the ICBs, so how do their costs fit into this system? There have to be some answers on that.

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[Karin Smyth]

I echo my hon. Friend’s words. The Minister is going to have to go back to the drawing board on this, although I can see what the clauses are trying to do. Financial directors I have spoken to commend the idea of working together under some sort of shared control. We have had controls before, but clauses 21 to 24 —I may be straying beyond my knowledge of the writing of Bills and financial movements—come under the heading, “Integrated care system: financial controls”, and the entire section is about controlling ICBs and NHS trusts.

We have not had a system defined. We know that control totals are difficult and that autonomous trusts have regulatory rules. We would be here all weekend if we started to talk about foundation trust controls, and what those trusts can and cannot do with their budget. Clauses 21 to 24 test out the definitions of roles and responsibilities, and the tensions throughout the Bill over trying to apply a systems view to disparate organisations with different duties and responsibilities. The Minister has been trying valiantly to say that there is clear accountability through NHS England, but all of us here as Members of Parliament, and as I keep repeating, understand what local accountability is in a system and this is not it.

We do not know what an ICS is, and we have all agreed that that might be okay—we are kind of in favour of permissiveness—but what divides the Committee and, I suspect, people farther afield is that the Government view is that permissiveness is okay, and it is up to the NHS England regions and the Secretary of State. We would like to impose some greater local accountability earlier.

The terminology in proposed new section 223M, on page 34 of the Bill, is clear, and refers to:

“Each integrated care board and its partner NHS trusts and NHS foundation trusts”.

That part of the Bill deals with aggregated spending on revenue and capital. I do not want to overload people’s brains at this time of the evening, but the Bill really is a mess in respect of capital. Our buildings are crumbling and the backlog is huge. We have talked about NHS properties in community health partnerships. The architecture still exists, but it is not clear how that system works. I think poor old Sir Robert Naylor’s edicts and pieces of wisdom are just propping open doors in offices in the Department of Health and Social Care, because they are certainly not being developed and they are not being developed in the Bill.

Will a trust finance director have to seek permission from the ICB to spend their capital, or even to know what it is? If that is the case, it makes a nonsense of the good financial management of some very large institutions. We would all like a bit of financial rigour in the system, but I am not sure the Bill allows us to have any. It is as my hon. Friend the Member for Ellesmere Port and Neston said: for community services, we have the Virgin Cares, but even a community interest company would sit outwith the NHS trust definition. Such companies are regulated by the Office of the Regulator of Community Interest Companies, which is separate from some of this. The regulation for some of these bodies is problematic, and GPs are obviously outside it, even if ICBs start to commission them.

The aim is to allow NHS England to control aggregate spending, but to do that there has to be some direction. Lo and behold, on page 35 of the Bill there are more direction powers for NHS England. We have alluded to the fact that provider expenditure gets divvied up, and some ICBs also commission specialist services; there will have to be some NHS England-defined calculation of how on earth all that fits together. Someone somewhere will need a very large spreadsheet and will have to try to balance the flows of money around the system.

I have asked a lot people, including experts, whether anybody starts to understand financial flows. That is obviously important because we are talking about our taxes and we need to know how they are being spent, who is spending them and who is moving the money between each of these organisations. What about when these bodies cross different boundaries? Will the Minister say whether the trust or the foundation trust gets to argue about which part of its base is allocated to which ICB and vice versa? I am certainly glad—I often am—that I do not live in London and am not trying to work that out for some of the large teaching hospitals that cross many boundaries. There used to be a role for strategic health authorities to try to match what providers said was in their accounts with what commissioners said they thought they had given them. I do not think they matched that often, and the structure in the Bill is much more complicated than that. How it will work in practice matters.

My hon. Friend the Member for Ellesmere Port and Neston has already asked some of the questions. This issue is very complex and involves big sums of money, and ultimately it is about patient care, so who is going to hold it all together? Where is the collective leadership and who will be the top people in these ICSs? The advert for the ICS chairs has gone out, and the pay is £50,000 to £80,000 for three days a week. The requirement on those people is clear; let us see how many of them are not already well known to NHS England. That is deeply problematic, if they are going to work—and we all agree that we would quite like them to work.

In the new system, can commissioners and providers both be blamed for the same things? As my hon. Friend said, can they be put into special measures? Where are the levers? What is going to happen, other than NHS England commissioning expensive consultants to say to people, “You know what? It’s looking a bit complicated and some of you haven’t got the right bits of money in the right places,” and trying to bash some heads together? All that will be done behind closed doors.

When we get down to the money, permissiveness becomes a bit of a work of fiction. This part of the Bill needs to be looked at again, between its leaving this place and arriving in the other place, to get a bit more sense into it. As we all know, the guidance is going out there. This has been worked on by NHS England, so it could come back in fitter form. As I said to the witness from Oxfordshire last week, joint work and integration often fall apart ultimately because of the money. Any local authority financial director, any foundation trust financial director, any good hospital financial director and any community interest financial director will be looking, quite rightly, at their own bottom line at the end of the day, as that is their job.

It is entirely up to NHS England how it navigates this. It looks like clever financial leverage work, and I really do not think that it will work and it all needs to be looked at again. I return to my theme that this is why we need somebody independent and highly skilled working on behalf of the local community to make the ICS work, and not to have it, as a result, an NHS England outpost deciding how it moves money around the system. We need to understand the financial flows, and ensure that they work much better than is laid out in the clauses.

[Edward Argar]

I will be relatively brief because I am conscious of the fact that we have agreed to get through quite a few more clauses today, although I will try to address the points that hon. Members have made. One of the key issues at the heart of what I think the shadow Minister, the hon. Member for Ellesmere Port and Neston, was saying is around what happens if an ICB or a foundation trust spends beyond its limit. How does that work? What is the process? I am pleased that this brings some welcome clarity, rather than the fragmentation we sometimes see in accounting cashflow, following the cash processes at the moment.

First and foremost, local systems will be informed of their resource envelope at the start of the year and will be required to agree a plan that matches, or is within, that envelope. Therefore, all will start the year with a plan that sets out what is being delivered and how much funding they will receive to deliver those services. However, if overspends emerge within year, that should initially be resolved within the system by the individual organisation either finding offsetting savings or securing savings elsewhere within that system envelope. Through the financial duties imposed by the Bill, the system is encouraged to be collectively responsible for managing its funding envelope, moving away from what we often see at the moment, which is fragmentation in understanding how the money flows, and each organisation considering itself to a degree in isolation.

If the overspend cannot be managed within the system, NHS England and NHS Improvement can use the powers in the Bill to hold the system to account through mechanisms such as the system oversight framework and providing support via the recovery support programme, as well as more informal support from the local region. Additionally, individual trusts or FTs that are not working collaboratively within the system can be held to account using the provider licence and enforcement options available for breaches. Finally, of course, in extremis the Department of Health and Social Care can provide cash support to NHS trusts and FTs to ensure that services continue to be delivered.

The second concomitant part of the shadow Minister’s question was what action NHS England or the ICB can take in response to financial difficulties. Financial performance will be monitored by both of them, and in the first instance any difficulties will be resolved locally. However, as I have set out, tougher mechanisms or sanctions can be imposed on trusts that are not meeting their reporting and financial accounting obligations under the clauses.

Question put and agreed to.

Clause 21 accordingly ordered to stand part of the Bill.

Clause 22 ordered to stand part of the Bill.

Clause 23

Financial responsibilities of integrated care boards and their partners

[Justin Madders]

I beg to move amendment 53, in clause 23, page 35, line 14, at end insert—

“(5) NHS England must publish guidance on the means by which an integrated care board, NHS trust or NHS foundation trust which believes its capital resource limit or revenue resource limit risks compromising patient safety may object to the limit set.”

This amendment would introduce an objection mechanism when an Integrated Care Board, Trust or Foundation Trust believes its capital resource limit or revenue resource limit risks compromising patient safety.

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What we are trying to do with the amendment is avoid any difficulties that such an edict might cause by ensuring there is transparency and an assurance that when those sorts of conversations are had, people at the sharp end are not forced to compromise on patient safety in order to meet unrealistic, centrally set savings targets. I hope that the Minister will understand the basis on which this amendment has been tabled and that he will be able to provide some clarity and assurance that patient safety will not be compromised as a result of efficiency savings that are required of NHS providers.

[Edward Argar]

Clause 23 provides for NHS England to set overall system financial objectives for ICBs, NHS trusts and NHS foundation trusts, which must operate with a view to achieving these objectives. This includes the ability to set limits on local capital resource use and local revenue resource use for ICBs, NHS trusts and NHS foundation trusts.

Clause 23 removes the sections in the National Health Service Act 2006 relating to financial duties of CCGs and replaces them with new sections setting out the financial responsibilities of ICBs and their partners. Improving population health requires the breaking down of silos. Traditional financial control focused on individual providers and organisations artificially creates barriers and fragmentation that get in the way of high-quality care.

The new approach will help to break down those barriers by enabling NHS England to set joint system financial objectives for ICBs and partner NHS trusts and NHS foundation trusts, which must operate with a view to achieving these objectives. This includes the ability to set limits on local capital resource use and local revenue resource use for ICBs, and for partner NHS trusts and NHS foundation trusts. NHS England can also give directions to ICBs, NHS trusts and NHS foundation trusts on resource apportionment.

I turn to amendment 53, tabled by the hon. Member for Ellesmere Port and Neston. I am grateful to him for tabling it as it gives us an opportunity to air a number of issues. It would require NHS England to produce guidance to set out a process whereby ICBs, NHS trusts or NHS foundation trusts could object to their capital and revenue resource limits. Although I understand the motivation behind the amendment, which is about ensuring that the NHS has sufficient funds to deliver services safely, I do not believe that it is needed. The ability for NHS England to set system limits is important to enable systems to effectively plan their services and it enables NHS England to meet its obligation on delivering system balance and its broader obligation to taxpayers.

The decision to allocate revenue funding to systems is based on a weighted capitation formula, which produces a target allocation or “fair share” for each area, based on a complex assessment of factors such as demography, morbidity, deprivation and the unavoidable cost of providing services in different areas, meaning that systems will get funding linked to their individual needs. NHS trusts and foundation trusts will be represented on ICBs, so they will play a role in deciding how resources will be allocated within the system. They can raise concerns about proposals, including with regard to patient safety, as part of the decision-making process, although we do not consider that these clauses would put patient safety at risk. Capital allocations already include a funding element to address emergency or patient safety needs, based on planning information from systems. The funding element is intended to be used to address any issues that could arise, including in the context of patient safety.

Furthermore, clause 24 futureproofs the ICB financial duties provisions. It provides for some of the provisions in clause 23 to be replaced and is designed to be commenced at a later date. Once ICBs and their partner trusts are deemed ready to take on greater financial accountability, clause 24 can be used to replace clause 23 with a new joint expenditure limit duty on the ICB and its partner trusts. At a time when it is considered appropriate, the clause will require ICBs and their partner NHS trusts and foundation trusts to exercise their functions in a way that ensures their expenditure when taken together does not exceed their income. The intended effect is that each local area is mutually invested in achieving financial control at a system level, meaning that public funds can be spent in a more sustainable, joined-up and effective way. This should enable a nimbler approach to expenditure where needs across the system can be addressed more flexibly and holistically.

Should unexpected needs for funding arise, there is another safeguard in place to allow NHS services to continue operating safely, as the Department can issue cash to NHS trusts and foundation trusts. For example, if emergency support is needed to address patient safety issues, trusts can apply for additional cash funding to safeguard delivery of care. It is for those reasons that I invite the hon. Member for Ellesmere Port and Neston to withdraw his amendment. I commend clauses 23 and 24 to the Committee.

[Justin Madders]

I do not know whether it is too late on a Thursday afternoon, but I did feel like I had wandered into an episode of “Yes Minister” there. I will not press the amendment to a vote, but I will read the transcript of what the Minister has said with some care over the next few days. I am not entirely clear that he has addressed the central points that were made, but we will no doubt return to this at some point anyway. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.

Clause 24 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Jo Churchill.)

Health and Care Bill (Ninth sitting)

Edward Argar Excerpts

Committee stage
Tuesday 21st September 2021 Public Bill Committees

[The Chair]

With this it will be convenient to consider:

Government amendment 14.

That schedule 4 be the Fourth schedule to the Bill.

[The Minister for Health (Edward Argar)]

Mrs Murray, it is—even more than usual—a pleasure to serve under your chairmanship: I am still standing before you in this Committee and opposite the hon. Member for Ellesmere Port and Neston, as seems to be our fate. He has served in his Front-Bench role longer than I have in mine, and that is going some.

Clause 25 gives effect to schedule 4, which contains minor and consequential amendments relating to the introduction of integrated care boards. The majority of the amendments relate to replacing existing references to clinical commissioning groups in legislation with references to integrated care boards. The schedule is necessary to ensure that existing primary legislation that refers to CCGs will continue to operate effectively once ICBs are established. Without it, references to clinical commissioning groups would be erroneous and the new commissioning bodies, ICBs, would not be referenced where they need to be across the statute book.

Following from that, Government amendment 14 is minor and technical. It is simply to ensure that the legislation hangs together properly. It makes no change to the status quo, but reflects that clause 15 of the Bill replaces section 3 of the National Health Service Act 2006 with a slightly amended proposed new section 3. A consequential amendment is therefore needed to section 187 of the 2006 Act so that it refers to the correct subsections. Previously it referenced subsections 3(1)(d) and (e), but those same subsections have now been moved to 3(1)(e) and (f) in proposed new section 3.

The amendment simply updates the cross references in section 187, without which section 187 would refer to incorrect subsections, which could result in regulations made under section 187 allowing for charging for the wrong services. That is, quite clearly, not our intention, and we are simply continuing the status quo and clarifying that matter.

Question put and agreed to.

Clause 25 accordingly ordered to stand part of the Bill.

Schedule 4

Integrated care system: minor and consequential amendments

Amendment made: 14, page 151, line 34 in schedule 4, at end insert—

“107A  In section 187 (charges for designated services or facilities), for ‘section 3(1)(d) or (e)’ substitute ‘section 3(1)(e) or (f)’.”—(Edward Argar.)

This amendment is consequential on clause 15 of the Bill, which changes the numbering in section 3(1) of the National Health Service Act 2006.

Schedule 4, as amended, agreed to.

Clause 26

Abolition of Monitor and transfer of functions to NHS England

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

That schedule 5 be the Fifth schedule to the Bill.

Clauses 27 to 32 stand part.

[Edward Argar]

NHS England and NHS Improvement, comprised of Monitor and the NHS Trust Development Authority—the TDA—requested the primary legislative changes to support the merger of their organisations, and these clauses are fundamental to fulfilling that ambition. In recent years, NHS England and Monitor, as part of NHS Improvement, have been working closely together with a view to acting as a single organisation with a single operating model. They already have aligned board and committee arrangements and joint senior executive appointments through the joint working programme. Despite the progress made, there are limits to the extent to which they can collaborate under the current statutory framework.

Establishing a single statutory body responsible for the health care system in England has several clear benefits. First, it will create a more joined-up approach across the NHS to provide national leadership and speak with one voice to set clear and consistent expectations for providers, commissioners and local health systems. Secondly, it brings services, support and improvement under a single regulatory and legislative framework. That will deliver improved care for patients, enabling better use of collective resources, removing unnecessary duplication and ultimately making better use of public money. The merger will provide clearer lines of accountability so that the public can be assured that any service they use meets the same requirements around safety and quality.

[Alex Norris (Nottingham North) (Lab/Co-op)]

One of the problems that we have found in Nottingham around driving integration was the duplication of lots of different regulators and metrics, which meant that organisations were often working to different purposes. This obviously tidies that up a bit in terms of regulators. Does the Minister envisage going further in the future?

[Edward Argar]

I am grateful to the shadow Minister for that question, which reminds me of some of the questions that he used to ask me in this room about what the future held when we discussed delegated legislation. I am always cautious not to predict the future, but hopefully it will be helpful if I set out the principles that I think should apply. I agree that unnecessary duplication that does not bring clear and tangible benefits to patient safety or improve outcomes is clearly undesirable. Therefore we will seek to streamline where appropriate, but without compromising patient safety or the outcomes that patients experience. While not predicting the future, I hope that gives him some reassurance of the direction of travel as I see it.

Clause 26, along with other provisions in the Bill, including clause 29, makes the legal changes necessary to bring these organisations together as one legal entity. Clause 26 abolishes Monitor and introduces schedule 5, which contains amendments that transfer Monitor’s functions to NHS England in order to fulfil the Bill’s intention to merge Monitor and the NHS TDA into NHS England to form a single body. The schedule transfers powers and duties from Monitor to NHS England and repeals provisions that are no longer necessary in the light of the merger. For example, Monitor’s functions in relation to NHS foundation trust mergers and acquisitions in sections 56 and 56(a) of the 2006 Act, and in relation to licensing providers in sections 81 to 114 of the Health and Social Care Act 2012, will all transfer to NHS England.

We acknowledge that bringing together the commissioning functions previously exercised by the NHS commissioning board, and the regulatory functions previously exercised by Monitor, under a single organisation could be perceived as giving rise to conflicts of interest. The Bill will therefore ensure the proper management of any such conflicts, and we will work with stakeholders on robust processes that will safeguard the separation of responsibilities and improve transparency. For those reasons, clause 27 seeks to insert new section 13SA, which deals with minimising conflicts between the body’s regulatory and other functions, into the National Health Service Act 2006.

The clause places a duty on NHS England to minimise the risk of conflict or manage any conflicts that arise between its regulatory functions and other functions. In the event that a conflict were to occur, NHS England would be under a duty to resolve or manage that conflict and to ensure appropriate transparency. NHS England must include within its annual report details of such conflicts and how it had complied with its duties to manage them under new section 13SA of the 2006 Act.

Clause 28 amends section 100 of the Health and Social Care Act 2012, which relates to the modification of licence conditions for providers. Licences are the basis by which NHS Improvement and, in future, NHS England set conditions on providers as to the terms on which they can operate. The clause requires that when NHS England makes a major change to the standard licence conditions, as permitted under section 100 of the 2012 Act, it must assess the likely impact of the change or publish a statement explaining why such an assessment is not needed.

The clause also provides that the impact assessment carried out by NHS England must be included in the notice of the modification that is sent to the relevant licence holder and others, as required by section 100(2) of the 2012 Act. This new requirement is intended to make it clearer why NHS England is altering a standard licence condition, which we think is in the interests of providers and the smooth running of the system.

Clause 29 abolishes the NHS TDA and works in harmony with clause 26, which abolishes Monitor and other provisions in the Bill that confer functions on NHS England in relation to providers, in order to merge the two organisations into NHS England to form a single body. In transferring functions that were formerly delegated to the TDA, we have considered the mechanisms and processes associated with those duties and assessed the best fit for the system, to ensure that the relationships already in place are not unduly affected. Clause 29 revokes the directions that established the TDA, and subsections (3) and (4) include consequential amendments that remove references to the TDA. They will no longer be relevant once the TDA is abolished.

Clause 30 makes a consequential amendment to NHS England’s general functions to reflect its oversight of NHS trusts and foundation trusts due to the merger of NHS England and NHS Improvement. The clause ensures a joined-up approach to decision making, allowing NHS England to understand the services required to best serve patients. It amends section 1H of the National Health Service Act 2006 so that for the purpose of discharging its duty to promote a comprehensive health service in England, NHS England must exercise its functions in relation to English NHS trusts and foundation trusts, as well as in relation to ICBs, which will replace the current reference to CCGs, so that services are provided for that purpose.

As part of the merger of NHS England, Monitor and the NHS TDA, and as a consequence of the abolition of Monitor and the NHS Trust Development Authority, clause 31 gives the Secretary of State the power to make schemes to transfer the staff, property, rights and liabilities from Monitor and the TDA to NHS England. These transfer scheme provisions follow a similar protocol used within the Health and Social Care Act 2012 for the transfer of assets, rights or liabilities on the abolition of the National Institute for Clinical Excellence and the Health and Social Care Information Centre. The transfer schemes used then proved effective and efficient, ensuring a smooth transition and no impact on the services they delivered.

Finally, clause 32 contains a regulation-making power that allows the Treasury to vary the way in which any relevant tax has effect in relation to the transfer scheme. Regulations made under this power can be used to ensure that no taxes arise, and that there are no changes to the tax positions of either the transferee or transferor body. It is appropriate to avoid unnecessary tax complications relating to a transfer scheme between public bodies. The types of taxes that can be varied are set out in the clause.

Without this clause, the transfer of assets or liabilities between the bodies mentioned in clause 31—namely Monitor, NHS Trust Development Authority and NHS England—could give rise to unintended tax liabilities. As I have highlighted, this merger has clear benefits and is central to the Government’s plans for establishing a more integrated, responsive and accountable health and care system.

[Justin Madders]

I am grateful to the Minister for his detail on those clauses, which have been very helpfully grouped. Although we have not put forward any amendments, we do want to raise some general concerns—mostly around what these clauses do not do.

As we have heard—although I do not think the Minister used quite the same terminology as we would have—these clauses have got rid of the worst trappings of the market architecture, which were characteristic of the Lansley Act. As we have heard, they enable the merger of NHS England and NHS Improvement, although I do not think that NHS Improvement is actually mentioned anywhere in the Bill. All references are to Monitor and the NHS Trust Development Authority. It is almost as if the Government want us to forget that NHS Improvement ever existed—or probably want us to forget who was chairing it.

The abolition of Monitor sounds another death knell for the Lansley Act, but does leave some of the market mechanisms in place. However, since they were ignored anyway, I can understand why the Government have not bothered to go the whole hog.

Clause 26 finally turns the Monitor off at the mains—although I think it is fair to say that it stopped working some time ago. NHS England is now the undisputed, supreme leader over commissioning and both flavours of providing, so the Bill not only tears up the Lansley reforms but quietly changes the 2003 amendments. Monitor was set up as the regulator of foundation trusts, and was to be the approver of applications to become a foundation trust.

Foundation trusts have had many incarnations, but were once heralded as the vigorous, autonomous new organisations that would shake up the NHS and bring choice and competition into healthcare. They were beyond the reach of those nasty bureaucrats who ran the rest of the NHS. However, as I think we have seen today, it has not quite turned out like that. There must be a clever saying somewhere that “All health service reforms end in failure”, just like all politicians’ careers—although the Minister is clearly an exception to that!

It is fair to say that we are seeing the end of the foundation trust experiment. There is no evidence that the new foundation trust model did any better than the old model. Of course, the first few anointed foundation trusts did outperform non-foundation trusts, but that was because they were already the best-performing trusts. That was why they were allowed to become foundation trusts in the first place. It was, really, a self-fulfilling prophecy, but, as time has moved on, it has been harder and harder for trusts to excel to the level originally envisaged.

Foundation trusts did have some good characteristics; they did have a better go at accountability to their governing bodies. Given this Bill’s focus on involving patients and the public in the wider health system, perhaps this system also has some positives—something to commend it. It might not have been a bad idea to have an equivalent model for the governance of ICBs, but I will not return to that now. I know the Minister has not warmed to our suggestions of greater accountability, but I will leave that for him to consider if he brings forward amendments on Report.

The Lansley Act favoured foundation trusts and made the optimistic—and what turned out to be highly inaccurate—assumption that, in time, all NHS providers would become foundation trusts. As so much happened with that Act, however, it turned out not to be the case at all. Foundation trusts are now no different from the old-school, old-style NHS trusts—a “distinction without a difference”, as Lord Stevens once quipped. For all relevant purposes, NHS trusts and NHS foundation trusts are performance-managed in exactly the same way.

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[Justin Madders]

I can assure my hon. Friend that I will not waste opportunities to refer to the waste of public money as a result of the Lansley Act, but the wider point is one that the Opposition have made already in Committee and will continue to make. There is clearly a gap where accountability ought to lie. It will be interesting to hear what the Minister says about why the governing model for foundation trusts cannot be expanded to all remaining trusts. We would particularly want to see far greater patient involvement in the integrated care systems in the Bill. Clearly, we have had that debate unsuccessfully, but I hope that we will perhaps have an opportunity to return to it once the Bill returns from the other place.

I will say a few words on the licensing scheme. Given that the Bill marks an end to the whole era of markets and competition and a move, at least in theory, to a model of collaboration and co-operation—not a cartel, as my hon. Friend the Member for Bristol South might call it—why is it necessary to license NHS bodies that are now fully under the control of NHS England and the Secretary of State? That does not seem to be a particularly good use of anyone’s time, and it will create more unnecessary paperwork and bureaucracy.

We will do our best to help the Minister in reducing obstacles to delivering patient care, so we will not oppose these clauses. However, we think that they have probably not gone far enough. They are clearly a necessary tidying-up job, but the Government should do the job fully and properly.

[Edward Argar]

As ever, I am grateful to the shadow Minister. He should be optimistic—perhaps not on this issue, but more broadly—about the reception of some of his suggestions. I think I managed to take him aback slightly last week with one suggestion, although it was perhaps not the one with which he expected me to be willing to engage. I always listen to and consider carefully what he says.

The shadow Minister made a number of points. He mentioned the references to Monitor and TDA and said there are no references to NHS Improvement. That is because NHS Improvement is not the named body in law—that is simply a legal distinction. The named bodies are the NHS TDA and Monitor, which we understand and know as NHS Improvement.

I gently chide the shadow Minister. His reference to the chair of NHS Improvement, Baroness Harding, was a little unmerited. She has worked tirelessly. Colleagues will have their views, as is entirely appropriate in this place, but his reference was uncharacteristically uncharitable.

[Karin Smyth]

Given that the Minister, who I think is an honourable man, has mentioned that, does he think it acceptable for the chair of NHS Improvement to take the Conservative Whip in the House of Lords, as was outlined in the pre-screening scrutiny commission by the Health and Social Care Committee? Does he think that is acceptable, as other Ministers have not done so?

[Edward Argar]

I believe that all appointments, including that one, are conducted entirely appropriately, in line with Cabinet Office guidance.

I move on to the shadow Minister’s substantive points, which he perhaps made more in hope than anything else. We are not resiling from the value that choice and competition can bring, but we recognise that it is not the only driver of improvement and that collaboration plays a key role, so the position is perhaps a little more nuanced than he might like to suggest or wish to see. What we are seeing here is a reflection of the reality. We are ensuring that the way the system has evolved in practical terms over time is reflected by updating the appropriate legislation.

The shadow Minister mentioned a number of specific points around foundation trusts, and I hope I can give him some reassurance. We are not abolishing foundation trusts or their rights. The licensing system that we are talking about allows for equivalent management of both types of trust in a consistent way, and the NHS will still have the power to authorise new foundation trusts in the future, if they meet the appropriate criteria.

[Justin Madders]

I think the Minister probably has the gist of what I was getting at in my comments. Can he tell us how many applications for foundation trust status are currently in the pipeline?

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[Edward Argar]

The shadow Minister is an able parliamentarian. I hesitate to say with certainty, but my belief is none at present. However, I caveat that by saying I would not wish to mislead the Committee. If I have got that wrong, I will of course let him know.

There is nothing that stops the evolution of trusts into foundation trusts, if they so wish and meet the criteria. What we are saying here is that it is not one size fits all. We will not force anyone down that route, but the option remains for NHS England. I would argue that the way the system has evolved is a reflection of the strength of that system and the framework that we have put in place around it. On a serious note, I know that the point about foundation trusts is of considerable interest to the shadow Minister. When we reach clauses 51 to 57, which cover this issue and the operation of foundation trusts, I suspect that we may get into rather more detail about how they actually operate. I might even be able to confirm that my understanding of the figure for which he asks is correct.

The shadow Minister has made his points clearly, but I hope the Opposition will agree to these clauses. They are technical clauses in essence, and the shadow Minister has rightly used them to air broader issues that are related. They are technical clauses to reflect the reality of the evolution of the system.

Question put and agreed to.

Clause 26 accordingly ordered to stand part of the Bill.

Schedule 5 agreed to.

Clauses 27 to 32 ordered to stand part of the Bill.

Clause 33

Report on assessing and meeting workforce needs

[Chris Skidmore]

I beg to move amendment 94, in clause 33, page 40, line 6, leave out from beginning to end of line 11 and insert—

“(1) The Secretary of State must, at least once every two years, lay a report before Parliament describing the system in place for assessing and meeting the workforce needs of the health, social care and public health services in England.

(2) This report must include—

(a) an independently verified assessment, compliant with the National Statistics Authority’s Code of Practice for Statistics, of health, social care and public health workforce numbers, current at the time of publication, and the projected workforce supply for the following five, ten and 20 years.

(b) an independently verified assessment, compliant with the National Statistics Authority’s Code of Practice for Statistics, of future health, social care and public health workforce numbers based on the projected health and care needs of the population for the following five, ten and 20 years, consistent with the Office for Budget Responsibility long-term fiscal projections.

(3) NHS England and Health Education England must assist in the preparation of a report under this section.

(4) The organisations listed in subsection (3) must consult health and care employers, providers, trade unions, Royal Colleges, universities and any other persons deemed necessary for the preparation of this report, taking full account of workforce intelligence, evidence and plans provided by local organisations and partners of integrated care boards.”

This amendment would require published assessments every two years of current and future workforce numbers required to deliver care to the population in England, based on the economic projections made by the Office for Budget Responsibility, based on projected demographic changes, the prevalence of different health conditions and likely impact of technology.

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[Justin Madders]

I will speak to amendment 94 and the other amendments in my name and the names of my hon. Friends, since they are grouped together and we are clearly all talking about the same thing. There is probably only a cigarette paper between many elements of these amendments and, I hope, the Minister’s position when we get to the end of the debate.

One reason why there are so many amendments and they are all fairly similar is that it was clear from the evidence sessions that this is one of the few areas on which there was complete agreement among the witnesses. Clause 33 is simply nowhere near good enough. Given the importance of workforce issues, which is the most crucial issue facing our NHS and social care system—as the right hon. Member for Kingswood mentioned, social care must be included within this—it is strange that we have really quite a tepid offering in the Bill.

It feels as though the whole question of workforce is firmly in the Department’s “too difficult” box. It knows it has to do something; it knows that without the tremendous efforts of the staff the NHS would simply collapse, but rather than coming up with an effective strategy, it has produced this fig leaf of a clause to create the impression that the issue is being taken seriously and dealt with.

[Edward Argar]

It is now in my inbox.

[Justin Madders]

It is now in the Minister’s inbox, and he will know that what is currently in the Bill does not cut it in terms of the challenges we face. As I often do, I place on record our thanks and admiration for the whole NHS workforce, for turning from theory into reality an organisation that demonstrates the benefits of collectivism and socialism and is one of the nation’s proudest achievements—I certainly expect the Minister to agree with the latter part of that sentiment, if not the former.

I have said this many times before, and I will say it again: without its workforce, the NHS is nothing. It is not only the doctors and nurses, but all the others who contribute to the delivery of a comprehensive and universal service, free at the point of use: the radiographers, the porters, the cleaners and the allied health professionals. I will not list them all, but we should acknowledge that a number of different people contribute towards even the most straightforward engagement with a patient, and we are grateful for each and every one of them and the service they give.

I briefly refer hon. Members to the report by the Health and Social Care Committee on workforce burnout and resilience. It conducted an inquiry into the issue and found that staff shortages were

“ultimately the biggest driver of burnout.”

It was presented with much evidence from staff about feelings of low energy or exhaustion, increased mental distance from or negative feelings about the job, and reduced professional effectiveness. Excessive workload was identified as the key predictor of staff stress, workers’ intention to quit and patient dissatisfaction, and was also highly associated with the level of errors.

I draw this Committee’s attention to some of the conclusions in the report. Paragraph 22 states:

“It is clear from our witnesses that although the People Plan presents comprehensive ambition to address the failings in the culture of the NHS, and address the needs and wellbeing of NHS staff, its delivery will depend on the level of resourcing allocated to these priorities. Without adequate funding the laudable aspirations of the People Plan will not become reality.”

Paragraph 23 states:

“We recommend that the Department publishes regular, costed updates along with delivery timelines for all of the proposals in the People Plan.”

That is something we are trying to turn into reality with our amendments.

Turning to the specifics of amendment 40, paragraph 24 of the Select Committee report states:

“The absence of a People Plan for social care serves only to widen the disparity in recognition and support for the social care components of health and social care. The Government should rectify this as a matter of urgency in their upcoming work to reform the social care sector; and it is essential that it is included in the social care reforms promised this year.”

Some reforms have been promised, but we still await the further White Paper on integration, which we have touched on many times.

“The adult social care workforce has stepped up to the plate during the pandemic. They deserve the same care and attention that the People Plan pledges to NHS colleagues.”

We wholeheartedly agree with the sentiments stated there.

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I ask the Minister, if not now, when? It is a gap in the Bill. There is plenty of work and expertise out there and it would make such a difference to our local communities if we could reward those people who worked throughout the pandemic by giving them an optimistic future in which they can rise up the skills ladder, earn more and support the health needs that we know are going to be so desperate in the coming months and years.

[Edward Argar]

I am grateful to all the hon. Members for tabling the amendments. They relate to increasing the Government’s accountability for assessing workforce planning and setting workforce projections. Before I turn to their substance, as the hon. Member for Ellesmere Port and Neston suspected, I entirely agree with the latter half of his sentiment about the achievement that is the NHS. I am not sure I would necessarily attribute that to unbridled socialism, which tends to fail where it is tried. However, as Opposition Members will know and as set out well in the book written about Nye Bevan by their right hon. Friend the Member for Torfaen (Nick Thomas-Symonds), which I re-read over the weekend, the genesis of the NHS was a complex one, which owed much to all parties in the House.

[Justin Madders]

I am glad the Minister has time to be reading such excellent tomes over the weekend. Can he remind us what the Conservative party did when voting on the original National Health Service Act 1946?

[Edward Argar]

Could the hon. Gentleman remind me what the Labour party did when in government, resulting in the resignation of the architect of the NHS?

The point I make is a serious one. The genesis of the NHS which, quite rightly, we are all proud of and recognise as a great achievement, is far from as simple as sometimes it might be portrayed by both parties in the House. The hon. Gentleman is right to highlight the fact that while the new hospitals we are building, the developments in drugs and therapeutics, and the new technology and new kit are all hugely important, they are limbs of the NHS. Its beating heart is its workforce and he is right to highlight that. I join with him, as I often do on these occasions, in paying tribute to all those who make up that beating heart.

Continuing to grow the workforce remains a top priority for the Government. Although I may disappoint some hon. Members, I am genuinely grateful to those who tabled amendments and spoke to them today, because this is a crucial debate, and I suspect the matter will continue to be raised, not just during the passage of the Bill but, rightly, more broadly. As ever, I am grateful to my right hon. Friend the Member for Kingswood, who brings a high degree of expertise to this subject, as the only hon. Member or right hon. Member to have occupied both the office that I now occupy and that of Minister of State for Universities, Science, Research and Innovation. He brings to the Bill the perspective he has gained from both those offices.

When I got this job back in September 2019, which seems like an age ago, I was responsible for workforce for a few months, until that responsibility was taken on by my hon. Friend the Member for Faversham and Mid Kent (Helen Whately) at the beginning of 2020. One of my first visits was to the University of Lincoln, which had just opened its medical school. That medical school had been campaigned for very hard by my hon. Friend the Member for Lincoln (Karl MᶜCartney), who was out of office at the time, and by the then Opposition Member for Lincoln.

The hon. Member for Bristol South is absolutely right to highlight the importance of local medical schools. Lincolnshire, for example, has a challenge in attracting and retaining a workforce. We are already in the early stages of seeing a growing workforce of people there who are likely to start their careers in Lincoln. When I visited, my right hon. Friend the Member for Kingswood was remembered with fondness. I did not take it personally that they almost seemed disappointed to see me and not him, but that is a reflection of the affection in which he is held and the respect for him in this sector.

As the shadow Minister rightly said, yesterday I again resumed responsibility for the NHS workforce and I look forward to working with him constructively on these matters, which is the way we tend to work. We will consider the role that all stakeholders can play in identifying the needs and opportunities around the workforce. I always value input and I echo the words of my right hon. Friend, which I hope will find favour with the shadow Minister, that that includes input from professional bodies, think-tanks, NHS bodies and the trade unions. There may be times when we disagree, but I look forward to working with all of them constructively and courteously, as I do with the shadow Minister.

This year, we have seen record numbers of nurses and doctors working in the NHS, and the total number of NHS staff has increased to almost 1.2 million. There are over 17,800—2.9%—more professionally qualified clinical staff working in NHS trusts and clinical commissioning groups than in June 2020, including over 2,700, or 2.3%, more doctors and over 8,900 more nurses.

We continue to make good progress towards meeting our manifesto commitment of 50,000 more nurses by March 2024. Encouragingly for future workforce supply, applications for nursing and midwifery courses in England were up 21% this year compared with last year, and we have seen the highest number of students accepting places in the past 10 years. Through Health Education England, we will continue to invest in the NHS and social care workforces, and an additional duty is not required for this to happen.

I will not repeat the point that the shadow Minister very kindly made about the July commission. I will certainly look into the status of the response to that report. He will recognise that even when we do not agree, which is not that often, although there are such times, I endeavour to be efficient and courteous in responding to such matters, so I look forward to picking up on that with my new responsibilities.

[Justin Madders]

I certainly did not intend to upbraid him for not responding, given that he took over responsibility only yesterday. He will be aware of the importance of the report and of an official response.

[Edward Argar]

I am, of course, and I reassure the hon. Gentleman that prior to the reshuffle I was looking at a number of issues related to the recovery of our workforce. A fit, healthy and supportive workforce is crucial to that. I have read and considered the report, and, with my new responsibility, I will endeavour as swiftly as I can to ensure that the Government respond as appropriate to the Committee, and to Committee reports more broadly, in a timely fashion.

We believe that the proposed duty in clause 33, which inserts proposed new section 1GA into the National Health Service Act 2006 in order to require the Secretary of State to produce a workforce accountability report at least every five years, addresses one of the main issues in the current system: the need for greater transparency and accountability for the various bodies involved in the workforce planning process in England. The proposal in the Bill is to ensure that there are proper structures and accountability for ensuring that the necessary workplace planning and projections are carried out and co-ordinated effectively by the various bodies in the system. For example, the report will set out the role and responsibilities of the new ICBs and how they will support the delivery of effective local and national workplace planning.

Draft guidance issued by NHS England, which covers the role of ICBs regarding the workforce, sets out the direction of travel in that regard. It sets out the ICBs’ responsibility to develop system-wide plans to address current and future workforce supply for the local area, with demand and supply planning based on population health needs. The guidance also refers to their responsibility to provide workforce data to regional and national workforce teams in order to support aggregated workforce planning and to inform prioritisation of workforce initiatives and investment decisions.

I fear that my remarks may be a little more lengthy than usual, but I think that that reflects the importance and breadth of this issue. Turning to the other amendments in the group, amendment 2 would require the Secretary of State to publish the report on assessing and meeting the workforce need annually, rather than at a minimum of every five years. I acknowledge the witnesses’ comments, which the shadow Minister has rightly highlighted, but we need to be a little cautious. We cannot predict all future evolution and needs, which is why we have mandated the report to be published at a minimum of every five years. That flexibility allows us to provide an updated report in order to reflect any changes to roles and responsibilities earlier than the statutory required period, if necessary, but requiring an annual report would impose an unnecessarily prescriptive and, I fear, rigid arrangement on the production of this document and would be disproportionate to the level of change in roles and responsibilities that we expect to see in the system on an annual basis. I therefore suspect that it is a matter for debate as to what the most appropriate timescale is—we have therefore set a minimum period, rather than a maximum period.

Amendment 40 seeks to go further than our current duty on reporting workforce accountabilities, by requiring the report to set out the system in place for assessing and meeting workforce needs, both of the health service and of social care. As the shadow Minister has alluded to, and as he and I agree, our 1.5 million-strong social care workforce is an absolutely essential and valued part of the social care system and, indeed, our broader healthcare system in this country. Social care workers are on the frontline, caring for and supporting people at the heart of their communities.

I understand the intention behind the amendment, but I fear that we will not be able to accept it today. The scope of clause 33 as it stands has been carefully drafted to ensure that it reflects the statutory role and responsibility of HEE, which will assist in the production of the report. As a result, the workforce accountabilities report will cover the NHS in England, including primary, secondary and community care; the regulated adult social care workforce where sections of the workforce are shared between health and social care—for example, registered nurses and occupational therapists; and the regulated public health workforce, including doctors and other regulated healthcare professions. Regulated professionals in adult social care are therefore already included in the scope of the report, but HEE has no specific remit for the wider, unregulated adult social care workforce. I can reassure the Committee, however, that the Government are working hard to bring forward a White Paper for adult social care. As the shadow Minister rightly alluded to—he repeated his comments, so I will repeat mine—the proposal set out by the Prime Minister will build on the strong foundations for reform and integration that will be laid through the Bill.

[Justin Madders]

I will not tempt the Minister to tell us what will be in that, but his confidence that it will be an improvement on the current position is noted. Does he anticipate that the White Paper will also include a very clear commitment to a workforce strategy, along the lines that we have discussed?

[Edward Argar]

I do not know whether the shadow Minister has seen what I was about to say, but after two years of doing this together, he has become relatively psychic. I anticipate that the White Paper will set out in detail how we propose to fund social care professionalisation, as well as initiatives or plans to improve workforce wellbeing and further reforms to improve social care recruitment and support.

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[Sarah Owen (Luton North) (Lab)]

I know it is not the done thing for Whips to contribute to debates, but because I have been a care worker, this part of the Bill is close to home for me. I wanted to touch on the word that the Minister used when he spoke about “assumptions” about workforce planning. Does he agree that actual independence takes away the need for Ministers to make assumptions, and that is why the amendment is important? Otherwise, Ministers are in danger of marking their own homework when it comes to whether they have met the workforce projections that they say they have met.

[Edward Argar]

The hon. Lady alludes to it not being normal form for a Whip to intervene, but her contribution is, as ever, extremely valuable in this context—particularly given the work that she did before she became a Member of this House—and I am grateful to her. My counterpoint would be that we need to be cautious about a separation of projections and planning from the reality of day-to-day delivery. The system, as envisaged, will bring together an actual knowledge of what is going on on the ground with those projections and data delivery.

I suspect that I will not convince the hon. Lady, but I recognise and acknowledge the expertise that she brings to the area. Back in my days as a councillor, I was a cabinet member for adult social care and saw at first hand the amazing work done by care professionals and by volunteers in the care sector. Notwithstanding any political disagreements we might have, I pay tribute to her for that.

Finally, regarding the consultation requirements in amendments 94 and 41, I assure the Committee that consultation already happens throughout the workforce planning and delivery process. To give a recent example of such engagement, HEE completed a call for evidence as part of its refreshed “Framework 15”. That call for evidence closed on 6 September and received responses from a wide variety of bodies. Between October and April of next year, engagement and consultation will continue through various events led by HEE. I am sure that as I assume my new responsibilities, I will occasionally be questioned on those by the shadow Minister, either across the Dispatch Box or in written questions and letters, as is his wont and, indeed, his right.

At local level, ICBs will be under various workforce-related responsibilities and obligations, as I have set out. As part of that work, we can expect ICBs to work with local stakeholders in their area. We expect all this stakeholder consultation to continue, but we want engagement to be flexible, in keeping with one of the principles—the permissive principle—behind the Bill.

Let me turn to the issue of safe staffing. Amendment 42 would significantly amend our proposed workforce accountability report so that it would have to cover an assessment by the Secretary of State of safe staffing levels for the health service in England and whether those were being met. The effect of the amendment in reality would be to require the Secretary of State to make such an assessment but, in so doing, risk detracting from the responsibility of clinical and other leaders at local level for ensuring safe staffing, reflecting their expertise and local knowledge, supported by guidance and regulated by the Care Quality Commission. We do not support the amendment as drafted, for various reasons.

First, there is no single ratio or formula that can calculate the answer to what represents safe staffing in a particular context, and therefore against which the Secretary of State could make an objective assessment. It will, as we have seen over the past year and a half, differ across and within an organisation. Reaching the right mix, for the right circumstances and the right clinical outcomes, requires the use of evidence-based tools, the exercise of professional judgment and a multi-professional approach. Consequently, in England, we think that the responsibility for staffing levels should remain with clinical and other leaders at local level, responding to local needs, utilising their expertise, supported by guidelines from national bodies and professional organisations, and all overseen and regulated by the CQC.

Secondly, the amendment would require the formulation of safe staffing levels against which the NHS workforce could be assessed. I fear that that would be a retrograde step, as it would inhibit the development of the more productive skill mixes that are needed for a more innovative and flexible workforce for the future. That new workforce is crucial to successful implementation of the new models of integrated care that the Bill is intended to support.

The specific wording of the amendment is incredibly broad and would require the Secretary of State to assess safe staffing levels across all healthcare settings, across the whole of England, for all medical and clinical staff. Such a duty would be burdensome not only for the national system but, potentially, locally—for local clinical leaders. It would move us away from that local accountability and expertise.

I assure the Committee that we will continue to engage with stakeholders and hon. Members, including my right hon. Friend the Member for Kingswood, to look closely at this area. I want to reassure Members, including Opposition Members, that we have heard their concerns and the views that they have expressed in relation to workforce in today’s debate and reflecting the evidence of witnesses. I am grateful, as ever, for the tone in which the shadow Minister has raised his concerns and put his points. We will carefully consider these issues and continue to ensure, and to reflect on ensuring, that we work to address them through the Department’s wider work on workforce.

Let me just say, before concluding, that while we were doing the changeover between clauses, I did a very quick check and I believe I was correct in my answer to the shadow Minister that no applications were currently pending for foundation trusts. I wanted to clarify that it turns out I was right—I suspect he thinks he was right in his assumption as well.

For the reasons that I have set out, I encourage hon. Members not to push these amendments to a Division but to continue engaging with me and other Ministers.

[Chris Skidmore]

I thank the Minister not only for his kind words to me personally, but for his considered response to this set of amendments. It is clear that he is mulling over this, and I would like to give him time to think about potential opportunities for changing the clause. I know how these things work; I have sat in the very same seat that he is sitting in. I know he has to spin off various pieces of paper that have been provided to him by departmental officials. The officials who are sitting here have listened to this debate and will want to go back to the Department to discuss with their colleagues what has been mentioned in Committee today.

There is a gap between the sector’s expectations of what workforce planning might look like and what is currently written in the Bill. The Minister has proven my amendment to be defective. It is already highlighted in the legislative remits of Health Education England that it has to consult the social care sector and also the wider sector. I will not press the amendment to a vote, but I do think there is an opportunity. If we can plan in advance and create systemic frameworks, we will save ourselves time—a stitch in time saves nine. We have an opportunity to provide certainty and security for the workforce and to provide a sustainable framework, although I am not sure whether the five years is sustainable.

As I have mentioned before, I was here 10 years ago on the Committee for the Health and Social Care Bill, which became the Health and Social Care Act 2012. We are now removing parts of that, and the Minister at the time, in the very same seat, argued until he was blue in the face that there would be a benefit. We can learn from that experience, but the lived experience of professionals suggests we need to be more frequent in our assessment of the workforce needs of the NHS and the care sector.

We know that the demographic train that is coming down the tracks is going to hit us. We have seen what has happened with gas supply prices and the energy sector; we knew nine years ago that we had only about four days’ gas supply, and yet no action was taken. If we transpose that over here, we know that we face workforce issues, if not a crisis, in the next 10 years. That will all come down the tracks in a perfect storm of increasing healthcare issues, an ageing population and an attrition rate in a workforce that cannot currently keep up with demand.

There are supply and demand issues. We need more frequent assessments to ensure that supply and demand meet each other, and we need investment in the workforce and in training. Although I will withdraw amendment 94, I am keen for the Minister to consider what further action might be taken on Report or in the other place. I beg to ask leave to withdraw the amendment.

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[Alex Norris]

It is a pleasure to serve with you in the Chair once again, Mrs Murray, and to follow the thoughtful contribution by the hon. Member for Arfon.

The hon. Gentleman’s points about interdependency are important. Of course, we cherish and build on the devolved settlement, but we understand that we still have important relationships, not least at our borders. I thought that his point about specialised care was a thoughtful one, too: we know that as conditions or treatments become complex, there will be specialisations, and we would never want artificial barriers to get in the way of people accessing specialised care. His point about training was also good and jumped out to me.

Yesterday, I spoke to a surgeon in my community who took great pride in working in the hospital where he was born. In between, he had gone away; I am told that there are parts of the world other than Nottingham—I dispute that fact—and he wanted to go and see some of them. That will inevitably involve crossing borders, and it is important that that is reflected in the Bill. That will happen from nation to nation, but in the future it will happen from integrated care system to integrated care system. Where there is divergence, we need to be thoughtful of it.

The statement of values relating to cross-border care said:

“no treatment will be refused or delayed due to uncertainty or ambiguity as to which body is responsible for funding an individual’s healthcare provision.”

That is an important principle because it sets out that it is the job of the system rather than the individual to understand and navigate the separation between different bodies that may diverge but which work together in common purpose. That is easy to say, but hard to do at times. As I say, that is something that we will see between integrated care systems in time, too. That is true for patients, but also for staff, whether those staff work in Wales but live in England or vice versa, and for the important interrelationships between border integrated care systems on the Welsh border and the NHS in Wales.

There will be devolved and separate competencies between those bodies, but the human beings who make those systems go live side by side in communities, sometimes even next door to each other. A decision taken in one place, of course, impacts on everybody; we see that a lot in social care. Local authorities are under so much pressure at the moment, both in the resources that they have to fund social care and finding individuals to staff that care. There could be price wars at the borders that mean that individuals move between organisations more frequently than they would in a system that was better planned. We have to be mindful of that.

During the evidence sessions, we heard about the safe staffing legislation for nurses in Wales. That is the sort of thing that would already impact on border CCGs, and will do on integrated care systems in due course. That will only grow as the considerable workforce pressures that we discussed in the previous debate bite down even harder. Again, we must be mindful of that. It is crucial that there is a collective approach—a minimum approach—where the NHSs in neighbouring nations have due regard to each other. If the workforce becomes a zero-sum game, we will all lose in the long term.

I was heartened in those proceedings to hear about the contact between the Minister and his colleagues in Wales. I know that he takes matters seriously in Wales and across the United Kingdom, which is good. We might hear more about how that works with regard to the work- force. In the meantime, we support the inclusion of this measure in the Bill and the fact that it will be a priority.

[Edward Argar]

I am grateful to the hon. Member for Arfon. Although I represent an east midlands constituency, in sunny Leicestershire—the hon. Member for Nottingham North would argue that Nottinghamshire is sunnier—I have a huge affection for Wales. In every speech he gives, the hon. Member for Arfon brings to the fore his pride in Wales and his constituency. In the vein of highlighting successful politicians representing Welsh constituencies, I take this opportunity to put on the record a tribute to my former Parliamentary Private Secretary, my hon. Friend the Member for Ynys Môn, who has become the PPS to the Secretary of State for Wales. I congratulate her on that appointment. It is well deserved; she has looked after me very well during her time in this House. I am grateful to her and put my congratulations to her on the record.

I am grateful to the hon. Gentleman for bringing the amendment before the Committee. It would require the Secretary of State to consult Welsh Ministers before the functions contained in clause 33 were exercised. Clause 33 would insert proposed new section 1GA into the National Health Service Act 2006, which, as we have just debated, would require the Secretary of State to publish, at least once every five years, a report describing the system in place for assessing and meeting workforce needs of the health service in England.

The shadow Minister, the hon. Member for Nottingham North, alluded to a point regularly made to me by my hon. Friend the Member for Vale of Clwyd. Although politicians and people in this House might see neat administrative boundaries drawn on a map, the reality is often much more complex. Certainly, those boundaries should not be seen in their everyday lives by constituents and others, who on occasions rightly need to exercise their right to access specialist services in England; I dare say there will be occasions where the counterpoint is true, and people living on the English side of the border may access health services on the Welsh side. We need to recognise that and work pragmatically with that reality.

Although in many other areas of the Bill we will work closely alongside the devolved Administrations, we do not agree that there is a formal need to impose an obligation in the legislation to consult Welsh Ministers before the Secretary of State exercises the specific power in proposed new section 1GA. I will turn to how we work with the Welsh Government in a moment.

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[Hywel Williams]

I am not entirely reassured by the Minister’s words; possibly the best response is, “We shall see”.

I make one further point, if I may, in reference to his former Parliamentary Private Secretary: people from Ynys Môn are known in Welsh as people from “Gwlad y Medra”, which translates as “the land of I can do it”. Clearly, she can do health, and we look forward to seeing her performance at the Wales Office as well. I add my congratulations to her. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

Can I clarify, Mrs Murray, that we have a hard finish at 11.25 am?

[The Chair]

We do.

[Edward Argar]

I will endeavour not to be on my feet at that moment.

Clause 33 inserts new section 1GA into the National Health Service Act 2006, which sets out a duty on the Secretary of State to report on workforce systems. Under the duty, the Secretary of State is required to publish, at least once every five years, a report describing the system in place for assessing and meeting the workforce needs of the health service in England. A duty is also placed on HEE and NHS England to assist in the preparation of the report, if asked by the Secretary of State to do so.

As we have discussed this morning, the report will describe the workforce planning and supply system for healthcare workers, including those working in the NHS and public health, alongside regulated healthcare professionals working in social care and other sectors in England. The report will be published at a minimum—I emphasise in each of my remarks that word “minimum”, although the shadow Minister may feel that it is not sufficient—of every five years. However, I can commit to that publication cycle being kept under review by the Secretary of State, should circumstances change.

Clause 33 will provide greater clarity and transparency on how the workforce planning and supply system operates in England. The report produced under it will describe in one single document the workforce planning and supply roles and responsibilities of relevant national bodies, including the Department, HEE and NHS England, the new integrated care boards and individual employers, and how they work together in practice at national, regional and local levels.

Clause 33 will complement our ongoing non-legislative steps and investment in workforce planning in England. In July 2021, the Department commissioned HEE to work with partners to review longer-term strategic trends for the health and social care workforce. This important programme will review, renew and update the existing long-term strategic framework for the health workforce—HEE’s framework 15—and will genuinely help to ensure that we have the right numbers, skills, values and behaviours to deliver world-leading clinical services and continued high standards of care.

Alongside the work that we are already doing with NHS England and HEE, clause 33 will further improve accountability for all the bodies involved on the important subject of planning for and meeting future workforce supply and demand.

[Justin Madders]

I will not detain the Committee for long; I have said more than enough on the subject—not persuasively, clearly.

The Minister made the point that I did not think that a minimum of five years was sufficient for a report on the workforce, and that is absolutely correct—and I am not alone, by any stretch of the imagination. Every stakeholder and every person who gave evidence to the Committee said that five years was simply insufficient to deal with the magnitude of the challenge that we face. If the Department really wants to grasp the nettle, it should be taking heed of what those stakeholders said.

The workforce is a very complicated and ever-changing issue. It is part of a world market in healthcare staff. What the right hon. Member for Kingswood said about his amendment was important: simply to dip into other parts of the world when we are running short is not a solution. Not only is it morally difficult to justify, but it does not represent a long-term solution—we are as prone to losing staff to other parts of the world as anyone else. People will remember that the junior doctors’ dispute resulted in an exodus to Australia and other parts of the world. Going around the world and dipping into other countries’ healthcare resources is not a solution to the challenges that we face. We are not going to divide the Committee on clause 33, but we think that it is insufficient.

I repeat the Health and Social Care Committee’s finding that

“workforce planning was at best opaque and at worst was responsible for unacceptable pressure on staff.”

That really cannot be ignored. We cannot keep kicking the can down the road. I hope that when the clause gets to the other place, there is more success in putting the onus on the Government to deal with the challenge.

[Edward Argar]

I hear what the shadow Minister says, and I hope that I can give him some reassurance: the Government will continue to reflect very carefully on the points made both in the debate today and in our evidence session.

Question put and agreed to.

Clause 33 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Steve Double.)

Health and Care Bill (Tenth sitting)

Edward Argar Excerpts

Committee stage
Tuesday 21st September 2021 Public Bill Committees

[The Chair]

With this it will be convenient to discuss clause 35 stand part.

[The Minister for Health (Edward Argar)]

As I said this morning to Mrs Murray, and I will repeat this afternoon for your benefit, Mr McCabe, it is a pleasure, particularly following the reshuffle, to still be serving under your chairmanship.

Clauses 34 and 35 would allow the Secretary of State to confer the exercise of his public health functions on NHS England or integrated care boards, and would allow those functions to be further delegated or subject to other collaborative arrangements, as defined elsewhere in the Bill.

Clause 34 substitutes proposed new section 7A for the existing section 7A in the National Health Service Act 2006, originally created as part of the 2012 health and care reforms, and amending the 2006 Act. To date, section 7A has been used to support the commissioning of key national NHS public health programmes, including our world-leading screening and immunisation programmes. The Government’s intention is that it should continue to do so. These public health services are embedded within, or have a clear affinity with, local NHS delivery mechanisms—a clear example being the delivery of childhood vaccinations by general practitioners.

Proposed new section 7A fulfils the same purpose as the original, in that it enables the Secretary of State to delegate the practical exercise of his public health functions to other bodies, but it is updated to keep pace with the thrust of the Bill and enable a wider range of delegation and collaboration arrangements. Not to do so would risk leaving public health programmes behind, with unnecessary restrictions on, for example, the range of bodies that could enter collaborative arrangements. The clause also consolidates amendments to section 7A made previously by the Cities and Local Government Devolution Act 2016 in respect of inclusion of combined authorities as bodies to which the exercise of public health functions may be delegated.

In addition, to ensure that the delegation or joint exercise of functions does not lead to reduced accountability for delivering services, we have proposed appropriate safeguards that make further provision on joint working and delegation arrangements. For example, the Secretary of State will be able to set out in regulations which functions can and cannot be delegated, impose conditions in relation to the delegation or joint exercise of functions, and specify the extent of such arrangements. Furthermore, the parties will be able to agree terms regarding the scope of the delegation arrangement. NHS England will also have the ability to issue statutory guidance in relation to functions that are being delegated or jointly exercised under those provisions. Subject to those safeguards, the clause supports the aims of greater health and care integration and a focus on improving population health outcomes.

Clause 35 introduces a new power for the Secretary of State, by direction, to confer the exercise of any of his public health functions on NHS England or ICBs. The clause, again, goes with the grain of the Bill more generally in resetting the relationship between the Secretary of State, as rightly accountable to Parliament, and an enlarged NHS England with an expanded set of responsibilities, which include direct commissioning and oversight of some health services.

The Bill is moving away from a focus purely on competition, and is instead re-emphasising the value alongside it of integration and collaboration. That includes being very clear on the role that the Government have to play. To that end, there is a suite of proposals in the Bill that assert the Secretary of State’s ability to intervene, set direction and make decisions, not as a substitute for clinical expertise, but in setting that clear direction and being accountable. I suspect that, if not on these clauses, then on those we will debate in a moment, that will come to the fore in our discussions.

Clause 35 is, to an extent, illustrative of that and relates closely to, for example, clause 37’s power to direct NHS England. As the law stands, and indeed as it would stand with the changes proposed by clause 34 alone, the Secretary of State’s ability to delegate the exercise of his public health functions effectively depends on securing agreement with the body being delegated to. That arrangement has generally worked well since its inception as part of the 2012 reforms, and as far as possible the Government intend to continue to operate in that way. However, the power gives Minsters a backstop if agreement is not reached in a timely way or is unreasonably withheld. It also enables them to give clear instructions where needed or where it would be more efficient to provide a direction rather than set up a whole arrangement.

Delay and confusion can and do affect the health of those relying on public health services, so the backstop power reflects the proper relationship, as we see it, between the Secretary of State and the public health system. It also sits alongside other mechanisms, notably regulation-making powers, in relation to local government’s exercise of public health functions. However, it is important to emphasise that directions must be published as soon as practicable, and the power would, of course, have to be exercised within the normal bounds of ministerial decision making, accountability and transparency.

Furthermore, any decision to exercise the power will be premised and guided by general public law principles and in line with the Secretary of State’s general statutory duties. Those duties will of course form part of any Secretary of State’s reasoning on whether it would be appropriate to exercise the power. In particular, they would need to consider section 2A(1) of the NHS Act 2006. As such, the Government believe that clauses 34 and 35 embody a proportionate addition to the Secretary of State’s powers.

[Alex Norris (Nottingham North) (Lab/Co-op)]

As the Minister says, the clauses relate to public health. We might previously have anticipated that the hon. Member for Bury St Edmunds (Jo Churchill) would have fielded them, but obviously she has moved Departments. I want to take this opportunity to put on record my thanks to her for her service as Public Health Minister. We worked well together, particularly in the proceedings on the Medicines and Medical Devices Act 2021. We have disagreed over the course of our work, and that is good—disagreement is good in a democracy—but we always disagreed well. I wish her well in her new role, although I might highlight the irony that, after all the work she did in public health to reduce fizzy drinks consumption, the top of the order of business at the Department for Environment, Food and Rural Affairs at the moment is presumably trying to restore carbon dioxide supplies to get those fizzy drinks going again—I am sure she will seek for them to be sugar-free, if nothing else.

Today is also my first opportunity to formally congratulate and welcome the hon. Member for Erewash (Maggie Throup) to her new role as Public Health Minister. I have long thought that it is pretty much the best job in Government, and gives the Minister the chance to shape and improve the lives of millions, if done well. From my work with her as a near neighbour, I know that she will give the job her all. I look forward to working with her and scrutinising the work that she does.

Of course, the job of Public Health Minister has been made an awful lot harder by the preceding decade. The other day I spoke about the bill for a decade of austerity falling due, and that is manifest nowhere more than in the provision of public health services and the impact of cuts on those services. In his introduction to these clauses, the Minister characterised the legislation as protecting the status quo, but the status quo relative to where we were in 2012 is very different: public health funding for 2019-20 was down 15% on where it was prior to the changes in the 2012 Act. If we set that against a growing and ageing population and all the attendant extra spending challenges that go with that, the real-terms impact is much greater. That has meant significant cuts: a cut of nearly half for support for health at work, the place where many of us will fall sick; a cut of a quarter for NHS health checks, a core preventative tool; and a cut of a quarter for smoking cessation programmes, despite how effective they are. Of course, the areas with the greatest needs have suffered the most and experienced the greatest cuts. Those cuts do not even fall equally.

For all the talk that we hear from the Government about prevention—we see it in these proceedings, the White Paper and the Bill—the reality is that Government policy over the last decade has made things much harder for our health system by creating extra demand. That is devastating not only for those individuals who have missed out, but for the system too. There is much greater demand on our health system as a result of the decisions that we have taken, and that is sad.

We have talked a lot about the 2012 Act, and much of what we are doing in Committee is removing its provisions, because they were not very good. However, one area where there seems to be no disagreement—no suggestion from the Government or the Opposition that we might change the position—is the idea that public health should go back home to local government. That is still an area of consensus that we can build on—of course it is. It means that our excellent public health staff, spearheaded by our world-class directors, can influence not only traditional public health-type services, but the whole range of services that shape the public’s health: licensing, planning, leisure, social care and much more—all those important things our local authorities do. It is just a shame and a wasted opportunity that this period has been characterised by cuts, particularly to those with the greatest need, rather than by investment in our communities.

I shudder to think of two things. The first is the amount of time that those skilled staff have spent on what is euphemistically called “service redesign” but is actually cuts. What could that amount of wasted time have been better spent on? The second is the professionals in that field who have chosen to leave because they do not want to be part of that. That is a real shame, and has really hindered our approach to tackling public health.

The Opposition do not intend to divide the Committee on clauses 34 and 35; at the end of the day, we would much rather that public health funding was spent at a local level than at a national one. We think it will have greater impact, and frankly we can get better value from it by combining it with local services. However, I want to test the clauses a little, starting with clause 34.

What we have seen in proceedings so far—I think this is sitting 10—is that, in reality, this is not an integration Bill; it is an NHS reorganisation Bill under an integration banner. I heard the Prime Minister himself promising a further White Paper, and presumably a further Bill, on integration in the future. The Minister has said that this Bill paves the way, but this was never a paving Bill. I challenge anybody to find in the White Paper or any publication from the Government relating to this piece of legislation the word “paving”—that is, until the Minister introduced it after the Prime Minister’s rather unhelpful intervention.

We heard from the Minister himself, when explaining to the Committee why a councillor cannot chair an integrated care board, that NHS bodies do not permit councillors to do so. He is telling us that this is about NHS bodies, not about partnership bodies. These are NHS bodies; they are accountable to NHS England and they can be altered by NHS England.

It has been a settled point of public policy for the past decade that public health is delegated to local authorities, for all the good reasons I mentioned. This may well be just my understanding, but I do not want to let this clause go without testing it: proposed new subsection 7A(2) provides for the range of eligible bodies that the Secretary of State can delegate the powers to. The first is NHS England, which would make sense in the case of big, national programmes such as the ones the Minister talked about in terms of vaccination. Another is a local authority, which makes sense for all the reasons I have given.

Yet another is a combined authority, which I suspect was not a feature of the 2012 Act—I do not think, although I might be wrong, that combined authorities were yet a twinkle in a local government leader’s eye at that point. However, with a combined authority, any arrangement would surely be by the consent of its members, rather than by delegation to the combined authority itself. Combined authorities are generally skeleton structures that act as an agglomeration of interested parties, rather than significant entities in themselves, so surely a local authority would receive those powers first and then, by agreement, transfer them to combined authority level with its partners.

Finally, there is an integrated care board. What is the reason for that? If these things get delegated to local government, why would they be delegated to an NHS body? Is that not an attempt, rather than repealing the provisions in the 2012 Act that moved public health back to local authorities, to do it on a de facto basis without addressing the point? That might be an unintended consequence, so I hope the Minister will address that and say that that is not the case.

Last Thursday, we dealt with the counterpart conversation to this one. We have debated multiple times the provision for health functions of the Secretary of State or NHS England to be delegated to the integrated care boards. That is in the spirit of what this legislation is about— local decision making—but at no point was there ever a proposal for any of those functions to be delegated to a local authority or combined authority. That, again, gets to the root of the problem with this Bill, and the core reason why the Government’s frequent integration efforts stall, spin their wheels and do not go anywhere. Local authorities are not treated equally, whether that manifests in social care—a very visible inequality in our health system—or in public health, as in this case. They ought to be equal partners, but they are anything but. Again, I hope the Minister can address that issue.

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As I say, in the case of public health, more local is better, but some elements of the Bill are not quite what they say on the tin. I would be interested in some clarification from the Minister.

[Edward Argar]

The shadow Minister has made a number of serious points—I am not sure how one spins the wheels when the car is stalled, but none the less I took his point. First, at the heart of this Bill is the fact that we seek to strike the appropriate balance between what is clearly a national health service, accountable to the Secretary of State and Parliament, and local flexibilities and local integration. The debate we will have for the next two hours or so will probably be about whether we have struck that balance appropriately, but that is the core of what we are seeking to do here.

The hon. Gentleman rightly talked about the importance of local authorities in this space. He and I share a common view on that, and he is right: one of the few things in the 2012 Act that I suspect he would have agreed with was the recognition of the public health function of local authorities. We are not seeking to do anything in the Bill to undermine that function in any way. It will not surprise the hon. Gentleman to know that I believe that the Bill provides for multiple layers of integration. Within a local NHS system, at an ICB level and then at an integrated care partnership level, there will be increased integration with local authorities and others, laying the foundations for the ambitious programme that the Prime Minister set out when he spoke earlier in this Session about the health and care levy.

The hon. Gentleman spoke about combined authorities. My recollection—I may be wrong—is that they date to about 2016, rather than 2012, and my understanding of the power is that it does not go against what he was saying, but provides for the continued evolution of the system and enables that delegation to take place. In practical terms, I would envisage that, where local authorities combine and work together, they would have their own arrangements, and we are not seeking to cut across those local working arrangements.

The hon. Gentleman also talked about the ICBs, saying that they are NHS bodies and asking whether this is a threat to local authority delegation of public health functions. My reading of that is that, as I mentioned in my opening remarks on these clauses, there are some public health functions that are NHS and delegated through CCGs, such as GPs participating in child immunisation programmes—hence the reference to ICBs, because they will be replacing CCGs in the new world.

Understandably, the hon. Gentleman talked about funding for public health. On his comments about the bigger picture on funding and spending levels more broadly, I simply remind him of the note left by a previous Chief Secretary to the Treasury:

“I’m afraid there is no money.”

We cannot get away from that context in this space, but more broadly he is right to highlight the importance of public health. The past 18 months have shone a light on public health; under Governments of all political complexions, public health has not always enjoyed that prominence in public debate, external media and other commentary. One thing that I hope will follow on from the terrible events we have endured over the past 18 months is a greater understanding and appreciation of public health and its measures, and for public health to enjoy the support it needs to do its job. I think all Members would agree that one of the few positives has been the recognition of the value of public health and prevention.

I think that those were the main points that the hon. Gentleman raised. I see these clauses as permitting a further evolution of the system and a recognition of the need, ideally, where we can, to further delegate powers from the Secretary of State to lower down within the system. On that basis, I hope the hon. Gentleman and his colleagues will feel able to support the clauses.

Question put and agreed to.

Clause 34 accordingly ordered to stand part of the Bill.

Clause 35 ordered to stand part of the Bill.

Clause 36

Power of direction: investigation functions

[Justin Madders (Ellesmere Port and Neston) (Lab)]

I beg to move amendment 108, in clause 36, page 42, line 33, at end insert—

“(10) Nothing in subsection (2) supersedes Part 4 of the Health and Care Act 2021.”

This amendment will ensure nothing in new section 7D of the NHS Act 2006 about the Secretary of State’s powers to direct HSSIB supersedes what is in part 4 of the Bill.

It is a pleasure to see you in the Chair, Mr McCabe, and to see the Minister back again. We heard about his increased workload this morning; I also saw him on the Treasury Bench during the urgent question. I wonder where he finds the time—he should speak to his trade union rep if he feels there are too many demands being placed on his time. We will do our best to ensure that this afternoon is as stress-free for him as possible; if he accepts our amendments, that will go some way towards enabling that.

I will not speak for long on amendment 108 because we will be talking extensively about the Healthcare Safety Investigation Branch later on in the Bill. Concerns have been expressed in briefings received by the Committee and in evidence about some of the relevant provisions in the Bill, particularly on access to information. Clause 36 looks at the proposed power over bodies that have investigatory powers, which include HSSIB. It is difficult for us to accept the clause as it stands without having gone through all the details on HSSIB, because we cannot possibly know whether our concerns will be resolved about how it will operate in practice. That is why we have put forward amendment 108.

The amendment would ensure that the powers in clause 36 do not in any way impede the important principle that HSSIB will be an independent body established by the Bill. In conjunction with further amendments, which we will no doubt get to in part 4, we can all be confident that HSSIB’s independence is sacrosanct. That is important for not just us as parliamentarians, but everyone within the NHS who may have reason to come across HSSIB. It is also important for patients, of course, because they will ultimately be the judges of whether HSSIB has been a success. It would be helpful to understand what the approach will be in relation to maternity investigations. HSSIB has a potentially important role in identifying how providers can sustainably and systematically improve the quality of such investigations and then provide appropriate support. However, ensuring proper accountability, clarity and independence remain important, and this amendment seeks to ensure that those matters are enshrined on the face of the Bill.

[Edward Argar]

I am grateful to the hon. Gentleman; I made it in rather slower time down to the Chamber to listen to the statement. After one of our sittings last week, I think the hon. Member for Nottingham North was on his feet asking a question in the Chamber before I had even made it out of this room, which shows a certain speed that I can only seek to emulate.

I appreciate that the amendment is linked to the independence of the Health Services Safety Investigation Body. The Government are clear that HSSIB will be independent, which is why it is being set up as a non-departmental public body, with a chief executive—to be known as the chief investigator—and executive and non-executive members. I hope I can reassure hon. Members that clause 36 is a temporary measure to ensure that the current Healthcare Safety Investigation Branch can continue to exist in the interim phase before the new body is established.

As I am sure hon. Members are aware, the merger of NHS England and NHS Improvement means that the NHS Trust Development Authority, of which the Healthcare Safety Investigation Branch is a part, will be abolished. We need the important investigation function that the Healthcare Safety Investigation Branch provides to continue until HSSIB is fully operational which, subject to parliamentary approval, is planned for spring 2023.

The power set out in clause 36 is designed to enable the Secretary of State to direct NHS England, or another public body, to carry out the investigation function in the interim period. I reassure hon. Members that the HSSIB will be independent. Clause 36 is not designed to infringe upon its independence and cannot be used to direct the new HSSIB in how it exercises its functions; it is there simply to ensure the continuity of current investigations until the 2023 start date. For those reasons, I ask the hon. Member for Ellesmere Port and Neston to consider not pressing the amendment to a vote.

[Justin Madders]

I am reassured to some extent by the Minister’s words, but we have seen over the past 18 months that temporary powers do have a habit of becoming rather more permanent than was originally intended. I think it would be perfectly possible for the Government to include some sort of sunset clause to ensure that the intentions set out by the Minister are adhered to, but we may come back to that. As things stand, we maintain our criticisms, and it would be remiss of us not to push this matter to a vote.

Question put, That the amendment be made.

--- Later in debate ---

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

I will be brief, because I believe that in responding to the shadow Minister’s amendment I set out the intentions behind the clause and the reasons why it is drafted as it is. Notwithstanding his desire to push his amendment to vote, all I can say is that I will continue to reflect on the points he has made. I cannot promise the outcome, but I will reflect on what he said. Having made the case when I addressed the amendment, I commend the clause to the Committee.

Question put and agreed to. 

Clause 36 accordingly ordered to stand part of the Bill. 

Clause 37

General power to direct NHS England

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to debate clause 62 stand part.

[Edward Argar]

I suspect that, with this, we get to the main event of this afternoon’s proceedings.

I begin with clause 37, which introduces powers for the Secretary of State to give directions to the newly merged NHS England. This merger, which is widely welcomed, of three different bodies with different accountability arrangements into one has inevitably required us to look at the appropriate accountability arrangements for the future, and the extent to which the accountability arrangements have evolved and kept up with the evolution of the organisation. The powers in the clause will ensure the appropriate balance between democratic accountability to the Secretary of State and the NHS’s clinical and day-to-day operational independence.

Clause 37 will give the Secretary of State new powers over a newly merged and larger NHS England. It does not give the Secretary of State any new powers over other NHS bodies. It gives the Secretary of State precisely no new powers over clinical decisions. The clause is about ensuring appropriate accountability mechanisms between the democratically elected Government and one of the biggest arm’s length bodies, if not the biggest. That is a principle of democratic accountability in a publicly funded national healthcare service, and I am sure it is accepted not just by the leadership of NHS England, but by Opposition Members, even if they may not feel that the clause reflects their interpretation of it.

In practice, NHS England will continue, as now, to make the vast majority of its decisions without direction, consulting the Government and others as it needs to. The Government’s primary means of shaping the NHS agenda continues to be the mandate to NHS England, which has been an established means of providing direction to NHS England since 2013.

As we have learned in recent times, events can move fast, and the mandate may not be adaptable to all circumstances—and nor was it designed to be when it was conceived. The powers in the clause are designed to supplement the existing mechanisms, such as the mandate, to give the Secretary of State the ability, where he or she deems it appropriate and in the public interest, to provide direction and to intervene in relation to NHS England’s functions. Of course, the Department’s title is “Health and Social Care”, and while NHS England will rightly continue to be focused on the NHS, the Government must take a wider view—and this wider view may lead us, on occasion, to a different conclusion about the appropriate course of action from that held by NHS England colleagues.

There is already a strong and close working relationship between Ministers and NHS England. The clause helps to formalise that in a way that is more transparent for everyone to see, building in the normal expectations of ministerial decision making and accountability by requiring Ministers to issue directions in writing, and to ensure they are published and made in the public interest. Any decision to exercise this power will be premised and guided by general public law principles and broader statutory duties.

To ensure the NHS’s continued clinical and day-to-day operational independence, proposed new section 13ZD also sets out specific areas where the power of direction in section 13ZC cannot be used. The Secretary of State is unable to use this power to intervene in the appointment of individuals by NHS England, in individual clinical decisions or in relation to drugs or treatments that the National Institute for Health and Care Excellence has not recommended or issued guidance on.

We believe that clause 37 is crucial for ensuring that we have the right framework for national oversight and accountability of our health system, and of one of the largest arm’s length bodies, responsible for over £130 billion of public money. The clause ensures, in proposed new section 13ZE, that appropriate levers are in place—as there are for other arm’s length bodies—for Ministers to respond and take swift action if NHS England fails to carry out any of its functions. It also ensures, in proposed new section 13ZF, that Ministers have the levers they need to direct NHS England to provide information. Without it, we would be expanding the functions, responsibilities and powers of NHS England without ensuring that there are appropriate accountability arrangements in place for this large integrated body.

The changes that clause 37 introduced are proportionate, in our view. They reflect the evolution of NHS England in recent years, changes to the wider system and the appropriate expectations on Government to support, challenge and steer the system, while also leaving it free to determine operational matters.

Clause 62 amends the National Health Service Act 2006 by repealing the duty on the Secretary of State and NHS England to promote autonomy. The rationale for doing so comes is two parts. First, the response to the pandemic has further highlighted the importance of different parts of the health and care system working together in the best interests of public and patients. By repealing the duty to promote autonomy, the clause further enshrines integration and collaboration at the heart of the legislative framework underpinning the system.

The second reason for repealing that duty is to ensure compatibility with the duties elsewhere in the Bill on NHS organisations, including NHS England, to consider the effects of their decisions on the better health and wellbeing of everyone, equality of care for patients and the sustainable use of NHS resources. To avoid any conflict in duties, it is important to remove NHS England’s duty of autonomy, as these new duties require NHS England to co-operate and work closely with other partners, rather than autonomously. Repealing the duty of autonomy will also make it easier for NHS England to facilitate co-operation within the system—when commissioning services or issuing guidance, for example.

Neither the provisions in clause 37 nor those in clause 62, or indeed anywhere else in the Bill, do anything to change the nature of NHS England as an arm’s length body. I hope that I can reassure the hon. Member—I fear that I may not—that the removal of these duties does not mean that Ministers are about to start interfering in the NHS or in any other body exercising functions relating to the health service.

Integration is at the heart of the Bill. By creating integrated care boards and removing unnecessary bureaucracy that can get in the way of local organisations wanting to work together, we are putting more power and autonomy in the hands of local systems, and that is our intention here. We are seeking to strengthen local leadership and empower local organisations to make decisions about their populations. We believe that both clauses not only support that intention, but strengthen it, and I commend them to the Committee.

[Alex Norris]

The Minister rightly pointed out my mixed metaphor, so I will undertake to avoid metaphors in this contribution. It is hard not to feel like an undercard to the main event here—that is a simile, of course, rather than a metaphor, and I gave no such undertaking on similes.

I might surprise the Minister by agreeing with bits of what he said: we do not intend to divide the Committee on clause 37 and we do think that there is an important distinction between the powers in clauses 37 and 38, which I think will come out in the debate. However, 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.

--- Later in debate ---

[Edward Argar]

There are a few points that I will seek to address. I am grateful to the hon. Member for Nottingham North for highlighting the accountability of the Secretary of State—he also highlighted me. I remind colleagues that in my ministerial capacity, as a junior Minister, I am in legal terms but an extension of my Secretary of State; all the powers are vested in him and I am but a legal extension of him. Colleagues may dwell on that as they wish, but possibly not too much.

The hon. Member for Nottingham North set it out well. If we went out into Parliament Square and asked three dozen people who they believe is accountable for the NHS and the delivery of health services in this country, they would say it was the Government, or possibly the Secretary of State or the Prime Minister. I think that is right, and that is why we must ensure that the accountability is reflected in the responsibility and the ability to exercise that responsibility and accountability over how the NHS operates.

On the promotion of autonomy, as the hon. Member for Nottingham North alluded to and as I set out, if we are seeking to promote integration and co-operation, as the Bill does, that therefore sits slightly ill with a duty to promote autonomy, and this is about how we reconcile those two matters in legislative language. He talked about a parliamentary mechanism in this context. I emphasise the need for the directions to be published in writing and to be in the public interest.

As we know, such documents are always able to be debated in the House. Were something to be done that he thought inappropriate, I can bet my bottom dollar that I would be standing at the Dispatch Box answering an urgent question from him 24 or 48 hours later. There are mechanisms in this House by which Ministers can be held to account for decisions they make. That is why I believe that this move aids transparency. Rather than informal conversations and discussions, as happen in any organisation, the clause will require that, where a disagreement occurs, there is a clear direction for it to be published transparently, for shadow Ministers and others in this House to question and challenge it, or to raise, within or outwith the House, their concerns in front of the public.

The hon. Member for Bristol South quite rightly alluded to how PCTs operated. Like her, I sat as a non-executive member of a PCT board. I remember those days. If I remember correctly, not only did she sit on a board; she also has extensive experience in running healthcare services as a senior leadership figure within the local NHS, so she knows of what she speaks.

I do not think that what we are seeing here is quite as the hon. Lady characterises—a huge change in the direction of our party’s policy or the direction of travel. We are putting in place a pragmatic and sensible measure, to reflect the focus now on a duty to co-operate, which a duty of autonomy sits slightly ill with, as I say, and to make sure that we have clear accountabilities. We recognise in theory and in legislation what is already deemed by the public to be there in reality, which is the accountability of the Secretary of State and the Government.

Question put and agreed to.

Clause 37 accordingly ordered to stand part of the Bill.

Clause 38

Reconfiguration of services: intervention powers

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 102, in schedule 6, page 180, line 12, at end insert—

“relevant Health Overview & Scrutiny Committee” means any Health Overview and Scrutiny Committee in an area to which the proposal for a reconfiguration of NHS services relates.”.

This amendment is consequential on Amendment 103.

Amendment 103, in schedule 6, page 180, line 41, at end insert—

“(3A) Before taking a decision under sub-paragraph (2)(a), the Secretary of State must—

(a) consult all relevant Health Overview & Scrutiny Committees, and

(b) have regard to, and publish, clinical advice from the Integrated Care Board’s Medical Director.”.

This amendment would require the Secretary of State to consult any relevant Health Overview and Scrutiny Committee (as defined by Amendment 102), and to have regard to and publish clinical advice from the ICB Medical Director, before intervening in local service reconfiguration.

Amendment 104, in schedule 6, page 180, line 43, at end insert—

“(aa) publish a statement demonstrating that the decision is in the public interest,”.

This amendment would require the Secretary of State to publish a statement demonstrating that any decision they have made on a reconfiguration proposal is in the public interest.

That schedule 6 be the Sixth schedule to the Bill.

[Edward Argar]

If I may, I will turn to the amendments first and then the substantive clause. I am grateful to hon. Members for tabling the amendments. I said that the previous clause was coming to the main business of the afternoon, but I now suspect that was but an hors d’oeuvre to the discussion we may have on this clause and this set of amendments.

Amendments 102 and 103 would require the Secretary of State to consult all relevant health overview and scrutiny committees before making a decision on a reconfiguration. Amendment 103 would also require the Secretary of State to have regard to, and publish, clinical advice from the ICB’s medical director. It is of course vital that local views are represented in any reconfiguration. However, although I understand the rationale behind these amendments, I do not think they are strictly necessary. The new power will not replace the important role that local scrutiny and engagement plays in service change decisions; we expect the vast majority of reconfiguration decisions to continue to be managed by the local system, and system players will be encouraged to resolve matters locally where possible.

The Secretary of State will continue to be advised by the Independent Reconfiguration Panel, which is being retained. The focus of the IRP is and will continue to be the patient and quality of care in the context of safe, sustainable and accessible services for local people. It has also provided the system with advice based on its experience to date around critical success factors.

If I may go down a slight rabbit hole here, I would like to put on the record my appreciation for the work of the IRP. Certainly during my tenure in this post, I have consulted it and seen its advice on a number of occasions, and I am grateful for the work its staff do, the speed with which they do it and the benefit I have gained from that advice in making decisions or advising the Secretary of State on particular decisions.

In practice, the Secretary of State will always need to seek appropriate advice from clinicians, local leaders or other experts before making any decision, and all decisions made using the powers inserted by clause 38 and schedule 6 must be published. This will ensure transparency and allow for proper scrutiny of the way the power is being used.

Schedule 6 also includes the requirement for NHS commissioning bodies, including integrated care boards, to give the Secretary of State any information or other assistance required to carry out any functions under the schedule. It is envisioned that the Secretary of State will obtain information from NHS commissioning bodies when making reconfiguration decisions. This will include any representations that an HOSC, stakeholder, patient group or any other interested party have made, if applicable.

All decision making on reconfigurations, at both local and ministerial level, will continue to be guided by the four tests laid out in existing guidance that reconfiguration should be assured against: strong public and patient engagement; consistency with current and prospective need for patient choice; a clear clinical evidence base; and support for proposals from clinical commissioners.

As such, we believe that clause 38 and the guidance that the Secretary of State is required to produce under the powers in schedule 6 will provide sufficient safeguards to ensure that the Secretary of State receives appropriate advice before using the powers in this clause. As a result of not accepting amendment 103, we will also resist amendment 102, which is consequential on amendment 103.

Amendment 104 would require the Secretary of State to publish, alongside any decision they have made under this provision, a statement demonstrating that the decision is in the public interest. The Secretary of State is accountable to Parliament for all his or her decisions. Ministers are expected, as a core principle of the constitution, to act in the public interest, and this is reflected in the ministerial code. In addition, the Secretary of State’s scrutiny and direction-making process on this and any other matter must already take into account the public law decision-making principles, all relevant information and their legal duties, including the public sector equality duty, that adhere to such decisions.

The Secretary of State is also under a number of duties set out in the National Health Service Act 2006, including a duty to promote a comprehensive health service, to secure continuous improvement in quality of services, and to have regard to the NHS constitution. As I have already set out, the Secretary of State will continue to be advised by the IRP, and will seek appropriate advice from clinicians, local leaders or other experts.

As for paragraph 4 of schedule 6, the Secretary of State already has a duty to publish any decision they make on a reconfiguration and to notify the NHS commissioning body of the decision. For those reasons, I urge the hon. Member for Nottingham North to withdraw his amendment—I suspect that I will be unsuccessful in that plea, but I make it none the less.

I will now address clause 38 and schedule 6. The clause inserts proposed new section 68A and proposed new schedule 10A into the National Health Service Act 2006. It also introduces schedule 6, which includes a new intervention power to allow the Secretary of State to call in a reconfiguration of NHS services at any stage of the process, without the need for a referral from a local authority. A reconfiguration of NHS services is a change in service provision that has an impact on the manner in which a service is delivered at the point at which the service is received by the user, or the range of health services available to individuals. That could be, for example, a change in where a mental health in-patient unit is based, building a new stroke unit, or restructuring a whole hospital trust.

The new intervention power will enable the Secretary of State to act as a scrutineer and decision maker for reconfigurations, to intervene where, 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 significant cause for public concern. We do not expect or intend to use the power with any regularity, and where it is used, it will be done so transparently. As I have emphasised, the Secretary of State must publish any decisions made about reconfigurations.

Schedule 6 sets out the scope of the reconfiguration powers as they pertain to NHS commissioning bodies, NHS services, NHS trusts and foundation trusts. It introduces a new duty for the relevant NHS bodies to notify the Secretary of State of any proposed or likely reconfiguration. The Secretary of State will be able to take any decision that could have been taken by the NHS commissioning body. That includes the ability for the Secretary of State to decide whether a proposal should proceed, the results the NHS commissioning body should achieve, and the procedural steps that should be taken. As I set out earlier, decision making will continue to be guided by the four reconfigurations tests. The new power will not replace the important role that local scrutiny and engagement play in service change decisions.

As the shadow Minister set out, the public expect Ministers to be accountable for the health service, which includes reconfigurations of it. The clause ensures that decisions made in the NHS that affect all our constituents are subject to democratic oversight. Without it, the Secretary of State’s ability to intervene and take decisions will remain limited, often coming at the end of a long local process. As now, he would not be alerted to a potential change in services until the change became an issue and he would remain powerless to intervene without a formal referral by a local authority.

I am conscious that that existing arrangement satisfies few in Parliament, including Opposition Members, on the occasions when they make representations about the process. However, it will be for this debate to see whether Members feel that the proposed new arrangement satisfies them—I will not prejudge that for a minute, looking at the faces of the Opposition Members. I therefore commend clause 38 and schedule 6 to the Committee.

[Justin Madders]

I congratulate the Minister on his valiant attempts to defend the powers that he wishes the clause and schedule 6 to give his boss.

The Opposition are pretty realistic and do not think that the clause will survive the parliamentary process in its current form. It would save a lot of time if the Minister was to indicate now that he had taken note of the many concerns expressed and that things will change. However, as the clause remains on the face of the Bill, we will have to go through the long and important reasons why it will not be able to stand in its existing form. The Minister will continue to defend the indefensible until it no longer needs to be defended.

We have heard evidence as to why the powers in the clause are not needed and, indeed, why the Secretary of State would not want such powers. Again, we are trying to help the Minister and his Department out by pointing out some of the pitfalls. The clause really is the total antithesis of everything this Bill is supposed to be. The Minister has told us many times that he wants to take a permissive approach, but the truth, as exposed by this clause, is that being permissive is okay until it is not, and then we have the power grab, the micromanagement and the sound of bedpans dropping all the way up to the Secretary of State’s desk. That is the logical conclusion of the clause.

--- Later in debate ---

[Karin Smyth]

It is a pleasure to follow the right hon. Member for Kingswood. I feel the need for us to write a book or a pamphlet about the planned reconfiguration of health services in Bristol from my time on the board. I agree with a lot of what he said about the Kingswood-Frenchay area, but I hold the reconfiguration up as a good example of wider consultation, clinical leadership and patient and public involvement.

Some of the messiness we got into reflected healthy discussion of the issues. As he said, we are still going through the process, but at the end of those long days we managed to build two very good, specialised hospitals, particularly around A&E services, and therefore close an A&E service. Although not a clinician, I had lots of work in the Frenchay area at the time and it was a terrible place to work and deliver clinical services, having been built as temporary wartime provision, although it was much loved by local people. That is something we might reflect on at another time. The process continues. We have just closed the consultation on stroke services, and other good services, including primary community care services, have come about as a result of the reconfiguration. Reducing a hospital base from three to two is a major exercise, but it did happen.

The points made by the right hon. Gentleman were well made, as were those made by my hon. Friend the Member for Ellesmere Port and Neston. We could play good cop, bad cop, because I am disappointed that the Minister is not taking the very helpful hands that I have offered to find more ways around this, rather than saying that we just want to see the whole lot come out. It will come out eventually—I think we all know that—but along the way let us put some helpful things in place.

My amendments deal with health overview and scrutiny committees and clinical advice. I will not press them to a vote, but I would like the Minister to address them. I think they might appear in similar form in other places, at other times, so what we say is important.

The Government need to account for where and how they are going to get their clinical advice. Reconfigurations, both large and small, are important to local people, as hon. Members have said. The Cossham example is a good one. Some of those buildings do not belong to the NHS. They belong to local communities and pre-date the NHS. People love buildings and their associations. As we embrace technology, we can see that people like buildings because they are something they can grab hold of and understand.

Clinicians—and clinical advice about change—are crucial in allowing and facilitating change. As with politicians, if there are three clinicians in the room then often there will not be one single answer. The issues about what we should be moving towards are often not black and white. The whole vexed issue around the tests and where clinical advice comes from is problematic for the Government and the Secretary of State.

As my hon. Friends have said, the national clinical advisory team did independent reviews, and then that disappeared. We have looked at clinical senates. The Lansley test, which has been alluded to, wanted clarity about a clinical evidence base. In order to provide such clarity, a lot of clinicians need to come together, across specialities and across primary and secondary care, to agree and to then go and talk to the public, to make people understand why and when they are putting forward their propositions.

The timing is interesting, because the test assumed the support of GP commissioners. In this new world, there is no clinical leadership of these new bodies; they are managerially led. Some of the managers might be clinicians, but when the tests were established—this was also true of primary care trusts—the previous bodies in their previous incarnations were largely clinically led. We may dispute whether that was in actuality, whether those people were acting as clinicians, what sort of clinicians they were, whether they were clinicians in the field of the service reconfiguration we were talking about and so on, but that is an important point in terms of trust with the general public.

The new bodies are not clinically led. In my amendment, I suggest the ICB medical director, but that will be a pretty tall order for the ICB medical director even in my amendments. They are also supposed genuinely to promote patient choice. We talked earlier about the removal of autonomy, and what we are seeking to do in many of our amendments to the Bill is to put back the voice of the patient somewhere in this permissive integration world.

The other test was generally to enjoy public, patient and local authority support. While poor old Lord Lansley is not getting much praise in these meetings, some sort of provision for tests with the public, local authorities and clinicians, recognising the complexity that has been outlined particularly well by the right hon. Member for Kingswood, still living through some of this, is well made.

I do not think the Secretary of State for Health and Social Care wants all this on his desk. In my time in this place I have watched with great interest, as I am sure we all have, as hon. Members across Cornwall, Devon, Dorset, Gloucestershire and all across the south-west have all risen at various times to bring up the issue of their community hospital, their A&E and various other services in their part of the country. Those issues are keenly felt and will all need consideration. Somebody—largely clinicians, and then other managerial people in those bodies—will have to sift out those processes.

What is alarming people, as we heard in evidence from our excellent witnesses—my hon. Friend the Member for Ellesmere Port and Neston outlined the key arguments—is that there is a gap. Who is filling it? How is it being filled? That is not just about process; it is about serious clinical engagement. That is why the Minister would be wise to pick up some of the helpful amendments that have been tabled, to alter this; otherwise it disappears completely. I think it was Nigel Edwards from the Nuffield Trust who said it is working pretty well at the moment.

We will all have our points in time where we disagree with things, and we will all want to bring in something else. That is partly our role as elected representatives, and I know the NHS does not like politics and politicians getting involved in these things sometimes, but it is the job of local representatives, whether local councillors or local Members of Parliament, to articulate on behalf of their constituents, to understand the debates and issues, to mediate them and certainly to challenge clinicians and managers of all types on the veracity of the proposals they put through.

The other thing I have said publicly is that sometimes the evidence put forward is not as robust as it should be. That external local scrutiny is well served by those of us who take a strong interest and ensure that the veracity of that information is solid. I have been able to go back to constituents—it is a brave politician who goes back to a constituent to say, “No, actually, I think we need to close that A&E,” but frankly, as we have seen from various reconfigurations across the country, at times that saves lives and is the right thing to do. Giving people locally the support to articulate that is also important.

[Edward Argar]

I fear we may not have consensus in Committee at this point, but none the less I will endeavour to answer some of the points raised. I am always grateful to the shadow Minister for his kind offers of help and assistance, and he will know that I always reflect carefully on the evidence we have heard and on the opinions of hon. Members on both sides of the House. I welcome his welcoming of the publication of the impact assessment in time for him to be able to quote it back at me. Finally, I thank him for his heartfelt and kindly offer of alternative approaches, given his concern for my workload were these proposals to be approved. I am touched on a number of levels by that, and equally by his suggestion that I and others have been engaged in the dark arts of spin—heaven forbid.

In the context of clause 38 and these amendments, right hon. and hon. Members, including my right hon. Friend the Member for Kingswood, have raised a number of important points that bear further reflection. As we have said throughout this process, the challenge with this Bill is striking the right balance between being permissive and ensuring accountability at a national level, and we believe this clause plays a key part in doing so. I disagree with the shadow Minister’s view—although I respect it—that the clause does not strike the right balance, and I do not believe that the powers set out in it are disproportionate, as he has suggested. He has highlighted the role of the IRP. I mentioned my gratitude for its work in my opening remarks, and I was very clear that that work will continue. The IRP will continue to give the valuable advice it has given thus far.

I do not believe that the notification requirements will prove unduly onerous: a notification can be a very simple process. To the shadow Minister’s point about timeliness, process and definitions, we are working very closely with the NHS and other partners to produce guidance that will set out clear expectations about how and when the powers will be used, and how they will be exercised. In his remarks, he touched on a concern that Ministers might be beset by lobbying from the public and others. I would argue that such lobbying would clearly point to greater public engagement with such matters and increased transparency, which are things that we might welcome. For fear of upsetting my hon. Friend the Whip, the Member for St Austell and Newquay, I will pass over the invitation that the shadow Minister and others have extended to my colleagues on the Government Benches to break the Whip. I saw the expression on my hon. Friend’s face when that was suggested, so I strongly discourage any of my right hon. or hon. Friends from contemplating that course of action. Even though a reshuffle has only just happened, there is always another one at some point.

The shadow Minister mentioned the Health Service Journal, which I enjoy reading. All I would say is that we continue to engage with a wide range of stakeholders, as we have done throughout the process. Indeed, I think that in her evidence, Dame Gill Morgan highlighted the collaborative nature of the genesis of this Bill. I intend to continue with an open and transparent approach, discussing with colleagues and engaging with them and others, because we know that we can always learn by listening.

[Justin Madders]

I am finding the Minister’s response very entertaining, but he really does need to tell us exactly what is wrong with the current system that this Bill is going to fix.

[Edward Argar]

I will come to the shadow Minister’s point, but I just want to get through the points he made earlier in his preamble. He mentioned the quote in the Health Service Journal article from a spokesperson for the Department of Health and Social Care, and I think that quote accurately reflects the nature of this Bill. I am grateful to those officials from the Department who ensured that the Health Service Journal got its quote.

I now turn to the substance of the shadow Minister’s argument and some of the gritter points that he, the hon. Member for Bristol South and others have alluded to. Fundamentally, he asked what challenge this Bill seeks to resolve. He asked a few other questions as well, which I will try to answer.

We believe that the Secretary of State should be able to intervene in reconfigurations for which they are ultimately accountable, and that this proposal will increase accountability to Parliament and the community by enabling intervention at an earlier stage. Too often, controversial proposals are referred at the very end of the process after a huge amount of work, effort and expenditure, rather than at an earlier stage when there is already a divergence of opinion in the local community. The Bill gives the Secretary of State an opportunity to take a view—based on advice and on the IRP’s four tests, which will continue to be the basis of that—and to get earlier intervention, where appropriate. That is one of the key reasons.

I will carry on, and the shadow Minister will nod if I am missing anything. He touched on local authority engagement, who can refer, whether there is a diminution in power—I think the hon. Member for Bristol South might have mentioned that—and what qualifies the Secretary of State to make those decisions. He also referred to local knowledge.

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[Karin Smyth]

We could spend a lot of time on this, but I think the Minister is saying that this could happen if there is a dispute within the public at any stage—perhaps at the outline business case, perhaps at the initial raising at the ICB or perhaps at the floating of the idea. That is clearly nonsense, if I may say so. Will the guidance define what “any stage” means?

[Edward Argar]

We anticipate the guidance setting out what is proportionate, the criteria and the appropriate point at which an intervention can be considered. I come back to the point that too often, under the current arrangement, proposals come forward right at the end of the process, after huge amounts of expenditure, effort and time, only to be overturned—potentially at the very last moment—on the basis of the referral. Having a measured and proportionate intervention power at an earlier stage is the right approach to save a lot of angst and possibly money, although we do not anticipate that the power will need to be used on many occasions, because the vast majority of reconfigurations are broadly consensual, or reach a local consensus.

The shadow Minister alluded to local authority referrals, and the hon. Member for Bristol South has highlighted the importance of local authorities and local accountability in a number of previous speeches and interventions. The new call-in power will not replace the important role that local scrutiny and engagement play in service change decisions. Decision making on all reconfigurations, as I said, will continue to be bound by the four tests against which reconfiguration should be assured: strong public and patient engagement; consistency with current and prospective need for patient choice; a clear clinical evidence base; and support for proposals from clinical commissioners.

The IRP will continue to provide the independent clinical advice to inform the Secretary of State’s decision making. His scrutiny and direction-making process must take into account the public law decision-making principles, all relevant information and all legal duties, including the public sector equality duty.

In that context, the Secretary of State will also continue to be bound by his duty on quality of service. That includes promoting the comprehensive health service and securing continuous improvement in the quality of services provided. The new call-in power for reconfiguration will allow the Secretary of State to support effective change and to be more responsive to the concerns of the public—and of Members of Parliament as their representatives—at an earlier stage.

[Justin Madders]

Reflecting on the Minister’s comments about why the provision is needed, my understanding is that the power to give the Secretary of State the opportunity to intervene at an earlier stage means that, in effect, local health systems will not spend an awful lot of time and effort coming to decisions that will ultimately be overturned. I wonder whether the Minister can give us any more detail or any thoughts about why, in a system that was generally thought to be working well, a decision could go all the way through that process and, at the end of it, be deemed to be wrong.

[Edward Argar]

One particular example comes to mind, but given that it is a live one, I will not use it. However, if I semi-anonymise it, there are decisions that are made locally and followed through, and only at that last moment is the process challenged—for example, whether a consultation was done properly—so it triggers a potential referral to the IRP, which could see that process overturned. An earlier power to intervene and an earlier opportunity to engage could in many cases avoid that problem and lead to a smoother process.

Let me make a final point. I would expect most reconfiguration decisions to be managed by the local system, and system players will be encouraged to resolve matters locally where possible and not to require any referral to the Secretary of State. Where cases are highly contentious and require ministerial input, our proposals will allow the Secretary of State to intervene. He is accountable in Parliament for reconfigurations. The shadow Minister made the broader point that if we ask who is responsible for the NHS, people will say the Secretary of State, or potentially the Prime Minister. That is already there in people’s minds. It is right that we have commensurate powers in the Bill to enable the Secretary of State to properly discharge that function and accountability.

I remain touched by the hon. Gentleman’s kind concern about the volume of work I may end up having to do as a result of the measure. I do not quite share his concerns, but I am none the less touched by the thought.

I urge the hon. Member for Bristol South, perhaps in vain, not to press her amendment to a Division, and colleagues on the Committee to support the clause.

Question put, That the clause stand part of the Bill.

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[The Chair]

With this it will be convenient to discuss the following:

Clauses 40 and 41 stand part.

That schedule 7 be the Seventh schedule to the Bill.

Clause 42 stand part.

Clauses 44 to 50 stand part.

[Edward Argar]

With your indulgence, Mr McCabe, and that of the Committee, I will start with clause 39, followed by clauses 40 and 41 and schedule 7, and then go through the remaining clauses in the group.

Clause 39 amends the Health and Social Care Act 2012 by repealing section 179, which abolishes NHS trusts in England. It is an uncommenced provision. The policy intention at the time was that all NHS trusts would become foundation trusts. However, since then the provider landscape has settled at around one third NHS trusts and two thirds NHS foundation trusts, and, as far as I am aware, no applications for change to a foundation trust are currently in flight. There is no intention to alter this landscape significantly and, as such, section 179 of the 2012 Act should be repealed. Doing so provides absolute legal clarity that the Secretary of State can create new NHS trusts under section 25 of the National Health Service Act 2006.

Given the ongoing pandemic, and with the NHS having to deal with the broader challenge of treating an ageing population with ever more complex needs, we seek to ensure flexibility by allowing the Secretary of State to set up new trusts for any purpose, to ensure alignment within an integrated system. The ability to create new trusts, where they are requested by a local area, enables the NHS to be structured to deliver the best outcomes for population health and to respond to emerging priorities. Our aim is to ensure that the system is flexible and adaptable in the future, and wherever possible to avoid the need for complex workarounds to deliver system priorities. Although section 179 was never commenced, we want to remove any potential legal uncertainty over the Secretary of State’s ability to create new NHS trusts. Clause 39 removes the lack of clarity around the Secretary of State’s ability to do so.

Clause 40 repeals paragraph 10 of schedule 4 to the 2006 Act. This paragraph allows the Secretary of State to appoint trustees for an NHS trust to hold property on trust. The clause removes the Secretary of State’s powers to appoint such trustees. In practice, these powers have only ever been used to appoint trustees to NHS charities. Historically, NHS charities were charities regulated under charity law provisions but were also linked to NHS bodies and bound by NHS legislation. This means that they were charitable trusts established under the 2006 Act and had as their trustee an NHS body, such as an NHS trust or foundation trust. The 2006 Act also allowed the Secretary of State to appoint trustees to NHS foundation trusts and NHS trusts, and to transfer property.

Since the publication of the Government’s response to the review of regulation and governance of NHS charities in 2014, it has been our policy for all NHS charities to move to independent status. Since then, all NHS charities have moved to independent status, including the 21 larger charities that had trustees appointed by the Secretary of State. Therefore, there are no NHS charities with trustees appointed by the Secretary of State, and all NHS charities are solely regulated by the Charity Commission. In light of the above, and as there is no further need for the Secretary of State for Health and Social Care to appoint trustees, clause 40 will remove such powers.

Clause 41 introduces schedule 7, which makes minor and consequential amendments relating to clauses 39 and 40 of the Bill. Clause 39 repeals section 179 of the Health and Social Care Act 2012, and clause 40 repeals paragraph 10 of schedule 4 to the National Health Service Act 2006 and removes the Secretary of State’s powers to appoint trustees. In order to implement the changes as a result of these clauses, schedule 7 makes consequential amendments to various other pieces of legislation, such as the Local Audit and Accountability Act 2014 and the NHS (Charitable Trusts Etc) Act 2016. This ensures that the changes made by the Bill in relation to clauses 39 and 40 are consistently represented throughout other pieces of legislation. These minor and consequential amendments are necessary to clarify the Secretary of State’s ability to create new NHS trusts and to remove the Secretary of State’s powers to appoint NHS trustees.

Clause 42 makes changes to the licensing regime for NHS trusts. The clause removes the exemption in the licensing regime for NHS trusts, meaning that all NHS trusts will require a licence from NHS England to operate. This reflects the intention that NHS England should manage both NHS trusts and foundation trusts, which already have to have licences, in similar ways. This has been NHS Improvement’s de facto practice for some time, and this amendment brings trusts within the scope of NHS England’s licensing and regulatory powers.

NHS England intends to use this as a means to manage all NHS providers more effectively and coherently, to ensure they are fulfilling their statutory duties and delivering high-quality, financially sustainable healthcare.

--- Later in debate ---

I do not want to divide the Committee on this point, because I do not want hinder the move to a more collaborative system. However, I know that colleagues in the other place will want to return to the theme because, as now constituted, it is very hard to explain why the new status quo that is being established is good. We are always trying to be helpful to the Minister, and there is a golden opportunity here to create a world where co-operation and collaboration replace competition, and where the sharing of data and resources becomes commonplace. If we add that to a much stronger voice for the public, for patients and for staff, things start to look as if they might be different, rather than having clauses that will not improve anybody’s healthcare. I wonder if the Minister might go a little bit further.

[Edward Argar]

I am grateful to the shadow Minister for his indication of broad support for our proposals. He is right: there is a significant degree of transposition and replication of what was there before, while recognising the new landscape. He asked why we did not go further; when we debated clause 38, he accused me of going too far. I suspect, from his perspective, that the question of balance has yet to be achieved, but I think we have struck the appropriate balance.

In his opening remarks, the shadow Minister said that while this is all useful and neat, it does not address some of the underlying challenges. I would argue that the Government have set out a very clear strategy for that in the NHS Funding Act 2020—I think I stood across from the shadow Minister for that one, which was a rather shorter piece of legislation—and, of course, the recent announcement by the Prime Minister, setting out the record additional funding going into the NHS.

On the specifics, I do not believe that foundation trusts mean a two-tier NHS. There are different models, and we are not proposing to stop the formation of foundation trusts—the hon. Member for Ellesmere Port and Neston has already enjoyed asking me a polite but pointed question in that regard. However, we are not going to compel it; we are not saying that that is the direction, and therefore we do not see the need for section 179. We are not saying that everyone must move in that direction. However, we will retain the ability for them to do so, should they wish.

The hon. Member for Nottingham North raised the issue of intervention, support and similar matters. There are different definitions of those concepts. For example, on the purpose of a default order, when one of those is issued, chairholders must immediately vacate their office. The order must

“provide for the appointment…of new members of the body and…contain such provisions as seem to the Secretary of State expedient for authorising any person to act in the place of the body pending the appointment.”

An intervention order may provide for the suspension or

“removal from office of all the members”

of the board,

“or those specified in the order, and for their replacement”.

An intervention is essentially quite a strong power. I would suggest that support takes a less prescriptive form and refers—as we would all understand the term—to support, advice or guidance. There is a difference in the level and severity of the interventions required.

On equivalent treatment in respect of foundation trusts and NHS trusts, one intention behind the merger of NHS England and NHS Improvement is to bring together the way we support providers, trusts and foundations so that there is a single model of support and one licensing approach. NHS England will—I suspect through guidance—clarify further how that will work in practice.

I take the points made by the shadow Minister. He perhaps sees these provisions as an opportunity to go further and address other issues that he perceives to be challenges for the system. We have deliberately sought to make this a transposition. It is technical, but we think these technical changes are important to ensure that NHS England retains the powers it needs to support, intervene and make sure that the system works. Although I will, as always, continue to reflect on the points he makes, I commend the clauses to the Committee.

Question put and agreed to.

Clause 39 accordingly ordered to stand part of the Bill.

Clauses 40 and 41 ordered to stand part of the Bill.

Schedule 7 agreed to.

Clause 42 ordered to stand part of the Bill.

Clause 43

NHS trusts: wider effect of decisions

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clauses 57 and 65 stand part.

[Edward Argar]

I hope I can reassure you, Mr McCabe, and the Committee that I do not intend to speak for anywhere near as long as I did on the previous group.

[Hon. Members]

Shame!

[Edward Argar]

I hear the cries of disappointment from the Opposition.

Clause 43 places a new duty on English NHS trusts, and clause 57 places a new duty on NHS foundation trusts, to have regard to the wider effects of their decisions. The duty, which was described in the NHS long-term plan as the triple aim, is mirrored for NHS England and the proposed integrated care boards. NHS England will be able to produce guidance on the duty that all bodies to which it applies must have regard. That duty is also given effect by clauses 4 and 19 in relation to other bodies, which we debated earlier.

As is indicated by the name, the duty has three limbs. First, NHS trusts and foundation trusts must consider the impact of decisions on the health, including mental health, and wellbeing of the people of England. Secondly, they must consider the impact on the quality of services provided or arranged by relevant NHS organisations, including their own. Thirdly, they must consider the sustainable use of NHS resources, including their own resources.

Decisions about particular individuals are excluded. It would not be practical or appropriate to apply the duty to decisions concerning services to be provided to any particular individual—for example, treatment decisions made by clinicians. The existing duties on those bodies encourage a focus on the interests of their own organisation and those who directly use their services. Although delivery of high-quality services remains critical, the new duty will complement other changes in the Bill to facilitate co-operative working and integration. It will encourage NHS organisations to continue to look at their communities beyond the people they directly provide services to and to consider collaborative, system-wide goals.

Following the merger of NHS England and NHS Improvement, NHS England will be responsible for setting and modifying the conditions contained in the licences of NHS providers. Clause 65 adds a new purpose for which NHS England may set or modify licence conditions: namely, that of ensuring that decisions relating to the provision of healthcare services for the NHS are made having regard to all their likely effects in relation to the three limbs of the triple aim.

Given that I have just discussed the triple aim in relation to clauses 43 and 57, I will not repeat the same arguments. As a consequence of this clause, NHS England will be able to set licence conditions aimed at ensuring that NHS trusts and foundation trusts comply with the new triple aim duty. Conditions relating to the triple aim in licences will ensure that the objectives of the new duty are considered alongside providers’ other duties and licence obligations. That in turn will encourage trusts and foundation trusts to consider the wider effects of their decisions and work on collaborative goals to the benefit of the whole system.

These clauses are essential in encouraging the components of our healthcare system to work together co-operatively and considerately, with an awareness of the wider effects of their decisions. I therefore commend them to the Committee.

[Alex Norris]

I, similarly, will not go on at great length. The clauses are consistent with the stated aim to move from competition to a culture of collaboration. It is therefore right that under clause 43, NHS trusts will have regard to the impacts of the decisions that they make on their neighbours, with particular reference to promoting the triple aim.

I want to press the point about what is meant by “relevant bodies” in proposed new subsection (4). The Bill states that it means NHS England, the integrated care board, NHS trusts and NHS foundation trusts. All of those, of course, make abundant sense. However, we are missing an opportunity to extend it more broadly to the health and social care family, within which the Bill is meant to promote integration. The obvious exclusion is local authorities.

In previous proceedings, the Minister chided me for jumping about in respect of whether he was going too far or not far enough. I am going to take the cheese on that. There is no inconsistency between saying that in one provision—for example, the powers of the Secretary of State—the Government are going too far, and in another—for example, the status of NHS trusts—they are not going far enough. Provided that those two things are not interdependent, of course the Government might be going too far on one thing and not far enough on another. I reserve the right to say that as I see it.

I might just go back to the Minister at this point on jumping around, because the Bill started as an integration Bill. It was going to be the great integration of health and social care, and what a moment this was going to be in British healthcare history—probably second only to 1948. Obviously, that fell apart straight away because there is not much about social care in the Bill—only two clauses out of 135. Then the Prime Minister said, “Don’t worry, we are going to come back with an integration White Paper in due course.” Presumably legislation would follow that. At that point, the Minister said that this was a paving Bill.

[Edward Argar]

A foundation Bill.

[Alex Norris]

Foundation is even lower than paving, so I am not sure that that is a recommending analysis. Then earlier today, the Minister said that of course integration could take many forms. It could be integration of many bodies, and in this case many bodies within the NHS could be integrated. I gently say that, if we are wondering what exactly we are integrating, the title of the legislation is the Health and Care Bill, so I would start with health and care. I think we are missing that opportunity.

The reason for local authorities not being on this list may well be that we cannot bind the NHS to other non-NHS bodies, but that makes my case rather than argues against it. It is therefore not an integration Bill; it is just an NHS Bill. We will come back—that is the point. I keep saying this for a reason. We will have to come back to address that point, because the reason we are considering primary legislation is that systems have outstripped the status of legislation on the statute book. However, if we do not go far enough to catch up with them, we will have to do so in the future. There is an aspiration to do that sort of integration not just within the NHS, but within the broader health and care family. I really think that while it is not too late, we ought to consider what more we could do to put local authorities into this conversation.

As for clause 57, it is welcome that these duties also apply to foundation trusts, but it again highlights the fact that we are going to get to a point where the difference between a foundation trust and other trusts will be a distinction without a difference. We really ought to think about revisiting that, and I hope we will get the chance to do so yet.

Finally, of course it makes sense to amend licences, even if it perhaps does not make sense to have licences. I hope that the Minister can respond in particular to the point about local authorities.

[Edward Argar]

I have always been clear that the Bill adopts an evolutionary rather than revolutionary approach to driving forward greater integration, not only within the NHS in a locality but between the NHS and local authorities. On multiple levels, this is a Bill about integration and partnership working, and of course one on which the Prime Minister, ambitious as he always is for this country, wishes to build and go further.

The shadow Minister asked some specific questions about local authorities. The reality is that there is a different evolution and genesis in our local government system and the social care that sits with it, compared with the NHS. Up until 1948, effectively we saw that both were local and place-based. The National Health Service Act 1946 and the establishment of the NHS in 1948 set the NHS on a different path, which essentially looked upwards. It was a national system, albeit place-based, and it was national in its accountabilities, whereas local government continues to be based around different accountabilities at a local level.

Although it is important that we do exactly what we are doing, as the Prime Minister continues to, which is to drive forward greater partnership working and integration, we have to recognise those different developmental paths and the challenges they pose. In that context, local authorities do have, as the shadow Minister knows from his time in local government, their own distinct duties and accountabilities. The triple aim should lead NHS bodies to engage with local authorities—for example, in considering the health and wellbeing of the people in England or in their area. It pushes and nudges the NHS to think more widely about how it engages.

Equally, it is important to note that there are other measures in the Bill, such as the ICBs and the partnerships, that bring together those two bodies with their distinct DNA. We want to make it easier for them to work together in partnership and to integrate further, but we do recognise those different accountabilities and approaches —one directly accountable through local councillors to a local community, and the other part of a national system. These measures, we believe, will drive the NHS to go further in having heed to those local factors. That may not fully answer the shadow Minister’s point, but I hope it goes some way to doing so. With that, I commend the clauses to the Committee.

Question put and agreed to.

Clause 43 accordingly ordered to stand part of the Bill.

Clauses 44 to 50 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Steve Double.)

Health and Care Bill (Eleventh sitting)

Edward Argar Excerpts

Committee stage
Thursday 23rd September 2021 Public Bill Committees

[The Chair]

With this it will be convenient to discuss clauses 52 to 56 stand part.

[The Minister for Health (Edward Argar)]

It is a pleasure to serve under your chairmanship once again, Mrs Murray. With your indulgence, I will speak to each of the clauses in turn.

Clause 51 amends section 88 of the Health and Social Care Act 2012. Section 88 requires that Monitor—or, in future, NHS England—treats an NHS trust that has become an NHS foundation trust as having made an application and met the criteria for a licence. The clause will require NHS England to apply that provision when that queue of NHS trusts waiting to become foundation trusts do so—[Laughter.] I hope the Committee will forgive my gentle reference to what the shadow Minister said last time. On a more serious note, the clause will also require NHS England to apply it when a foundation trust is created as a result of the merger of an existing foundation trust with an NHS trust or another foundation trust, or the separation of one foundation trust into two or more new foundation trusts.

Clause 51 clarifies the situation when new foundation trusts are created, merged or separated and ensures there is no unnecessary bureaucracy as a result. It is an important clarification for NHS England on how to exercise its licensing powers in such situations, should they arise.

We are investing record levels of capital expenditure into the NHS to help it build back better after the pandemic. We intend to set capital expenditure budgets at integrated care board level, and we expect providers to work with ICB partners to agree capital expenditure, in line with the ICB capital plan. To ensure that the interests of the wider system are taken into account at individual provider level, clause 52 provides a new power to allow NHS England to make an order imposing capital expenditure limits for NHS foundation trusts.

That narrow and reserved power will ensure that a limit can be set only for an individually named foundation trust for a specified period, and would automatically cease at the end of that period. The power relates solely to capital expenditure and not to revenue expenditure. NHS England must also consult the foundation trust before making the order. There will be clear transparency, as the order will be published.

In applying to an individual foundation trust in particular circumstances, the power stands in contrast to the capital limits that apply to all NHS trusts. The power is likely to be used where there is a clear risk of an ICB breaching its system capital envelope as a result of non-co-operation by that foundation trust, and when other ways of resolution have been unsuccessful.

NHS England must set out in guidance the circumstances in which it is likely to set a capital limit and how it will calculate it. NHS England intends to work closely with foundation trusts to develop that guidance. I want to make it clear to the Committee that the clauses are not intended in any way as an erosion of the autonomy enjoyed by foundation trusts. Unlike NHS trusts, foundation trusts will continue to have additional financial freedoms, such as the ability to borrow money from commercial lenders. However, the clause is crucial for managing NHS capital expenditure across a system and to ensure that all NHS providers operate within the ICB capital limits. Without that control, other NHS providers may have to reduce their capital spending to ensure that the NHS lives within its allotted capital resources and that resources are spent in a way that best delivers for patients and the taxpayer.

The provisions in clause 53 are largely a consequence of the merger of NHS England and Monitor, in this case reflecting Monitor’s oversight role in relation to foundation trusts. Subsection (1) gives foundation trusts greater flexibility in their forward plans. Paragraph (a) removes requirements currently in the National Health Service Act 2006 concerning the content of the forward plan. Paragraph (b) removes the requirements for the forward plan to be prepared by the foundation trust’s directors and for the directors to have regard to the views of the foundation trust’s governors when preparing the forward plan.

Foundation trusts will no longer be mandated to set out information in the forward planning documentation around non-health service activity and income. The clause also removes the requirement for governors to be mandated to determine whether the foundation trust’s forward plan interferes with the trust’s health service activity.

As the Committee will know by now, and as a consequence of the abolition of Monitor and its merger with NHS England, NHS England will formally become responsible for the support and oversight of foundation trusts, which includes taking on Monitor’s regulatory and intervention powers. That change will enable improved oversight and greater flexibility across the system. Provisions elsewhere in the Bill make the detailed changes, including formally giving NHS England responsibility for giving directions in relation to the content and form of foundation trust accounts. That includes specifying information to be included in the annual reports and accounts of foundation trusts.

The clause is simply part of transitioning the provider-based functions of Monitor into NHS England, ensuring continuity of oversight of foundation trusts’ accounting and forward planning. NHS England will be able to provide fundamental advice and guidance to foundation trusts in the exercise of their functions. Provisions elsewhere in the Bill will formally allow NHS England to monitor the performance of foundation trusts and to take steps to intervene where necessary, which may take the form of advice and support. As we discussed on a previous occasion, however, it may also involve NHS England requesting the trust to take action to remedy emerging issues. At the same time, the clause makes the requirements on annual plans more flexible, to reflect the direction of travel towards system-wide, rather than organisation-specific, planning.

I turn now to clause 54, which inserts proposed new section 47A into the National Health Service Act 2006 and allows an NHS FT to carry out its functions jointly with another person, should the foundation trust consider such arrangements to be appropriate. That would allow a foundation trust to exercise its healthcare delivery functions jointly with another foundation trust as part of a provider collaborative. The clause will make it easier for FTs to work with partners across the health system to develop integrated, seamless services in the best interests of patients.

Clause 55 amends sections 56, 56A and 56B of the 2006 Act, which relate to the merger, acquisition, separation and dissolution of NHS foundation trusts and NHS trusts. It removes the requirement that an application to acquire or merge an NHS FT with another NHS FT or an English NHS trust be supported by the Secretary of State if one of the parties is an NHS trust. NHS England will now consider each application, but the Secretary of State’s role has been strengthened, as he must now approve such applications. However, NHS England will consider the applications and provide advice. That is in keeping with the policy intention that the Secretary of State should have a strengthened accountability role for NHS foundation trusts, in the light of the transfer of Monitor and NHS Trust Development Authority functions to NHS England. NHS England replaces Monitor in the relevant sections of the NHS Act 2006.

Like Monitor, NHS England has a duty to grant the application to merge, acquire or separate if it is satisfied that the necessary steps have been taken to prepare for an acquisition or the dissolution and establishment of new trusts. Additionally, the clause adds a further requirement to each of the sections, which provides that NHS England must refuse an application if the Secretary of State does not approve it. That strengthens the role of the Secretary of State in the process, and it will be for NHS England to take note of the Secretary of State’s comments in taking forward its plans. The clause provides for enhanced oversight and places strategic decision making in the health system in the hands of NHS England, while also conferring a commensurate and important role on Ministers, in line with the direction of accountability set out in the Bill.

Clause 56 relates to the transitioning of the provider-based functions of Monitor and the NHS TDA into NHS England. That will allow NHS England to grant an application by an NHS foundation trust for dissolution. The clause confers the powers that rested with Monitor to transfer or provide for the transfer of property of an NHS foundation trust on its dissolution. Previously, on the dissolution of an NHS FT, Monitor had the power to transfer the property of the NHS FT to the Secretary of State. The clause amends that power so that, when making an order to dissolve an NHS foundation trust, NHS England now has the power to make an order to transfer, or provide for the transfer of, property and liabilities to another NHS FT, an NHS trust or the Secretary of State. The clause also includes a new duty for NHS England to include the transfer of any employees of a dissolved NHS FT in the transfer order.

Taken together, these clauses ensure that foundation trusts are able to play a central role in a more integrated and collaborative healthcare system. As part of that, the clauses also provide NHS England with the powers it will need to help support NHS FTs. I therefore commend clauses 51 to 56 to the Committee and propose that they stand part of the Bill.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

It is a pleasure to see you in the Chair this morning, Mrs Murray. I am glad you enjoyed Tuesday so much that you came back for another round. We will do our best to inform and entertain as we go along.

I am grateful to the Minister for setting out the Department’s position on the clauses. We really need to have another go, don’t we, at trying to understand the landscape for foundation trusts? I have already referred the Committee to the description of foundation trusts when they were first established, as vigorous, autonomous, business-like new organisations that would shake up the NHS and bring choice and competition into healthcare. As we know, there was no evidence that that model did any better than the previous standard trusts, once the high performers had been accounted for.

The Minister’s contention that the clauses do nothing to impinge on a foundation trust’s autonomy is quite the claim. The big change in the clauses is the stripping away of financial autonomy, as set out in clause 52, directly contradicting the many occasions when we have been told that the Bill is all about permissiveness, local decision making and accountability. In clause 55, we also see the Secretary of State giving himself yet more powers.

Clause 52(2) could, in effect, mean there was an indefinite block on foundation trusts using their own capital resources. Will there be any limitations on what is a broad power? I refer to the evidence from Dr Chaand Nagpaul, who touched on that:

“At the moment, we are seeing foundation trusts thinking about their budgets, community providers thinking about theirs, and general practice as well. There is not even collaboration between the community and the hospital. No foundation trust currently has the ability to say, for example, ‘We will go beyond our budget and invest in the community—it may actually reduce our hospital admissions.’ At the moment there is no structure or processes to enable collaboration even within the NHS.”—[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 93, Q120.]

Dr Nagpaul sets out very well the lack of clarity that we still have about how finances will work at a local level within an ICB, and clause 52 gives foundation trusts even less autonomy in that respect.

On that point, I noted with interest today yet another Health Service Journal article, which talked about how integrated care partnerships may not be up and running for some time after the ICB has been set up. That raises questions about what their role is going to be in helping to form those capital priorities for an integrated care system.

In other evidence, Richard Murray said:

“The bit that I think is really uncertain is how the big hospital schemes get picked. That is the bit that looks very different. Obviously, there is a manifesto commitment.”—

although we know that, in recent times, the Government have not been so keen to follow those commitments. He continued:

“There used to be a process by which it was determined whether providers could afford to repay—if they could do it through loans, or if there was a need system. That is now going off in a completely different place, and I think that is the bit that is not quite clear. How does that work within this system? Who gets to choose how those projects get picked, so to speak?”—[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 118, Q158.]

I appreciate that the point is slightly off-piste, but as we are talking about capital expenditure it is appropriate to raise it, and I am sure the Minister will take the opportunity in his response to set out that process in more detail. At the same time, can he set out in more detail what the guidance set out in proposed new section 42C would entail? Hopefully we will be able to set out some broad points in respect of that.

While we are on the Minister’s response, will he consider the broader point we made on Tuesday about foundation trusts’ focus on involvement of patients and the public and whether that needs to be strengthened across the board? He needs to think again about the whole question of accountability on ICBs.

To go back to the essential question, are foundation trusts now any different to plain, old-school NHS trusts? Is a foundation trust now a dodo? Is it extinct or on its way out? If an ambitious young chief executive of a trust were to approach the Minister and say they were thinking of putting in an application for foundation trust status, what would the Minister say to them about the benefits of such an application, both to their trust and to the wider healthcare system?

--- Later in debate ---

In the spirit of our many suggestions to help the Minister ease his workload, why not get officials to work on a new consolidation Act for the NHS? As we have seen, there are many amendments to the 2006 Act as a result of this Bill and other pieces of legislation, and it takes time to cross-reference so many parts, so one piece of legislation would be helpful for everyone, not least overworked shadow Ministers. Maybe the time to do that is when we have the next reorganisation in approximately two years’ time, when the Prime Minister’s latest integration plans come to the fore and we see that something else has to change. In the meantime, can the Minister set out clearly the purpose and function of the licensing process? I am sure we would all be grateful to hear about that.

[Edward Argar]

I am grateful to the shadow Minister for his suggestion of a consolidation Act. I can tell just how much he enjoys the sessions we spend in Committee and how eager he is that, no sooner do we finish, than we are back in another Bill Committee together. In terms of his gentle gibe about reorganisation in another two years, there was roughly a two-year gap between the 1999, then the 2001, then the 2003 and then the 2006 reorganisations of the NHS under the previous Government. I fear this is something that affects Governments of all types.

[Justin Madders]

Indeed, but the point that we would make is that there was such a mess to clear up after 18 years of Conservative Government that we had to do a lot of reorganisations. If the Minister can state for the record that there will be no reorganisations within a specified timescale, we would all be delighted to hear that.

[Edward Argar]

We must always retain flexibility so that the legislative framework reflects the evolving nature of healthcare provision in this country and we can we deliver what all our constituents want us to.

The hon. Gentleman touched on the importance of licensing. The licence applies to anyone providing NHS services, including the independent sector. With the system oversight framework, it provides a tool that helps to ensure quality across all types of providers in a consistent way, hence the importance that we still attach to it.

At the heart of the hon. Gentleman’s speech were his points about foundation trusts, a 2004 innovation. The reason we are introducing these changes is that we recognise not only the ability of foundation trusts to be autonomous, but the need for them to collaborate and integrate. The aim is to create a framework that allows for local flexibility but brings together local services, recognising the synergies that need to exist between all healthcare providers in an area. With the ICB holding the ring, we get local flexibility, but we look at it the local system level rather than the individual provider level. I alluded to it jokingly, but as I promised in our last session I can confirm to him that I was correct that there are no current applications from NHS trusts to become foundation trusts. I said that I was relying on my memory, but I can confirm for the record that my memory was accurate.

The hon. Gentleman talked about the new hospitals programme and capital more broadly. While slightly stretching the scope of the debate, I think that is probably relevant because he was talking about capital, so I am happy to accept that—subject to your judgment, of course, Mrs Murray—as being in scope. In terms of investment in new hospitals, the bottom line is that this is capital provided by the Treasury—by central Government —to build new hospitals where they are most needed. He will have seen the criteria and the approach set out for the next eight schemes, which are currently being considered. An expression of interest is the first stage of that process. A number of criteria are set out—for example, are there safety issues? Is there an urgent need? Will this facilitate transformation and improve patient experience? The criteria are set out publicly.

The next stage, which will take place next year, is the whittling down of the applications to a shortlist and further consideration. I believe it is entirely right that, guided by advice from officials and local NHS systems, Ministers make those decisions, because it is central Government money that is being invested directly in the schemes, rather than the normal capital allocations from NHS England to local NHS systems that are decided at local system level. This is additional, over and above the normal capital allocations.

The hon. Gentleman mentioned proposed new section 42C and asked what it is envisaged the guidance will say, what it will cover, and how it will work. Essentially, we envisage it setting out how and when NHS England and NHS Improvement will exercise the powers—for example, where a foundation trust’s plans potentially put at risk the broader ICB plans for capital, unduly divert resources, or skew the capital allocation in a particular direction. We do not envisage their being used with any regularity, and hope that, as now, broadly, there is a collaborative approach. It is more informal now than envisaged under the provisions, but there is a collaborative approach.

In his broader remarks about the balance between autonomy and freedoms, the hon. Gentleman asked what I would tell a keen and ambitious NHS trust chief executive who was considering taking advantage of the spaces in the queue to become a foundation trust the advantages in doing so are. Essentially, I would say that they should consider what best reflects the local needs for their local healthcare system, because foundation trusts will of course retain freedoms around commercial borrowing and other existing freedoms. The powers that we are introducing act as a safeguard should they be used against the wider interest of the system. There are still advantages, but each NHS chief executive in that situation should consider carefully their own local circumstances and what is most effective in providing for their patients and service users.

My two final points go to what the hon. Gentleman said about the fear that the powers are significant and should be used only as the last resort, and his second point about whether there should be a greater willingness to allow NHS providers to decide how they spend their surpluses, rather than a regulator or central Government deciding. I might be paraphrasing, but I think those were his two key concerns. On his first point, the powers act as a safeguard to allow national-level intervention when local negotiation cannot resolve disputes. I have alluded to what we would use the guidance for, which is to add a bit of flesh to the bones. We think that is best set out in guidance rather than on the face of statute, as circumstances change over time and applying a narrow statutory test could hinder the aims of the clause, which would ensure that NHS spending overall is in the best interests of the public.

To the second point about whether it should be down to NHS providers and systems to determine how they spend surpluses or moneys that they have saved each year for a particular purpose, the hon. Gentleman is right that NHS trusts and foundation trusts operate as autonomous organisations that are legally responsible for maintaining their estates and providing healthcare services. That will continue, but only where there is a clear risk of a trust acting against the wider interest of the NHS system locally and an ICB would the controls be considered for application.

[Justin Madders]

The Minister is setting out the aims, but I am a little unsure what a foundation trust acting against the wider interest of the ICB would look like. Can he give us examples of where that might have happened?

[Edward Argar]

The hon. Gentleman tempts me to give a specific example. The reason we chose the flexibility of using guidance is that we cannot envisage every eventuality, so we will set out in guidance the process and approach. I will try to give him an illustrative example rather than a specific one, if he will allow me. If we have an ICB making collective decisions about where capital investment is most needed at a system level, and if we have a foundation trust with resources deciding to prioritise huge investment in one particular area, that might not necessarily reflect the broadly agreed local priorities in the ICB plan and the ICP plan for that area. I envisage such matters being resolved at an ICB level. I have certainly seen in this job and in a past life, as I suspect the hon. Member for Bristol South has, where informal resolution of these things is often the most effective way, so I would not envisage these powers being used often, but it is important that we have the flexibility that they bring. On that basis, I commend the clauses to the Committee.

Question put and agreed to.

Clause 51 accordingly ordered to stand part of the Bill.

Clauses 52 to 57 ordered to stand part of the Bill.

Clause 58

Transfer schemes between trusts

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss the following:

Clause 59 stand part.

Government amendments 15 and 16.

That schedule 8 be the Eighth schedule to the Bill.

[Edward Argar]

As we have discussed, clauses 39 and 40 make it clear that the Secretary of State continues to have the ability to create new NHS trusts. Clause 58 is an integral part of ensuring that the NHS has the correct provider landscape necessary to deliver integrated care and to respond to emerging priorities.

The clause allows NHS England to make a transfer scheme relating to NHS trusts and NHS foundation trusts. Such a transfer scheme can provide for the transfer of property, rights, staff and liabilities from one NHS provider to another to ensure that the right resources can, when necessary, be transferred to support the delivery of services across the NHS.

NHS trusts and NHS FTs will be able to apply jointly to NHS England to make transfer schemes under the clause. NHS England, as the national regulator, may grant the application for the transfer scheme if it is satisfied that all necessary steps to prepare for the scheme have been undertaken. The process can ensure, for example, that all transfer schemes are in the best interests of patients and represent value for money for the taxpayer. Transfer schemes for NHS providers are crucial to ensuring that we have a flexible, adaptable provider landscape to deliver the best care to our patients.

Clause 59 introduces schedule 8 to the Bill, which amends chapter 5A of the National Health Service Act 2006, which relates to trust special administrators. Schedule 8 outlines the changes to the process and authorisation for the appointment of trust special administrators, including the reporting mechanisms.

A trust special administrator is appointed to take charge of the trust, at which point the trust board of directors—in the case of NHS foundation trusts, the governors—are suspended. Trust special administrators may be appointed by NHS England to exercise the functions of a chairman and directors of an NHS trust, or the governors, chairman and directors of a foundation trust, where that is necessary to secure sustainable and high-quality services and where other interventions to secure financial or clinical sustainability have been exhausted.

Schedule 8 co-outlines the changes to the process and authorisation for the appointment of trust special administrators, including the reporting mechanisms. The changes are part of transitioning the provider-based functions of Monitor and the NHS TDA into NHS England, and it does not represent a substantial change in policy approach. It also transfers delegated duties placed on the NHS TDA to NHS England in relation to the appointment of a trust special administrator to an NHS trust. It also transfers functions of Monitor to NHS England in relation to the appointment of a trust special administrator for NHS FTs.

The administrators are to be appointed by NHS England to make recommendations about actions to secure sustainable and high-quality services. NHS England must appoint a trust special administrator if required to do so by the Care Quality Commission. Otherwise, it may make the order to appoint only if it considers that to be in the interests of the health service and if the Secretary of State has given their approval.

The process remains broadly the same under schedule 8, giving NHS England the appropriate role in relation to NHS trusts and foundation trusts. However, one change I draw to the attention of the Committee is in relation to NHS trusts: both NHS England and the Secretary of State will receive the administrators’ report, which will state which action, if any, either is to take. The schedule confers a shared duty on NHS England and the Secretary of State to consult one another before taking any decision on action.

The provisions enable NHS England to discharge its responsibility for the support and oversight of NHS trusts and foundation trusts, including taking on Monitor and the NHS TDA’s regulatory and inspection powers in relation to such trusts. They provide transparency to the appointment process and its reporting mechanisms, and clarity to the system in securing and delivering sustainable and high-quality services when the trust providing them has been placed into administration. I commend the clauses and the schedule to the Committee.

Government amendment 15 will ensure that integrated care boards are consulted when the Care Quality Commission requires NHS England to make a trust special administration order and ensures that the process properly accounts for all future commissioning arrangements involving those boards. Proposed new section 65B(4)(b)(ii) introduced under paragraph 2 of schedule 8 retains the existing requirement for the Care Quality Commission to consult commissioners of services from the NHS trust in question. The commission considered that to be appropriate. However, it does not account for situations where, in future, an NHS trust may provide services in an integrated care board area without formally providing services to that integrated care board. For example, where an NHS trust ends up spanning two integrated care board areas, those boards may decide to have a lead commissioner of services from an NHS trust. The purpose of the amendment is to put beyond any doubt that any integrated care boards that might be impacted by a trust special administration order being triggered for an NHS trust should be consulted as part of the formal process.

Similarly, Government amendment 16 will ensure that integrated care boards are consulted when NHS England decides to make a trust special administration order and that the process properly accounts for all future commissioning arrangements involving ICBs. Proposed new section 65B(5)(b), introduced by paragraph 2 of schedule 8, retains the requirement for NHS England to consult commissioners of services from the NHS trust in question, if

“NHS England considers it appropriate”.

However, that again does not account for situations where, in future, an NHS trust may provide services in an ICB area without formally providing services to that ICB. For example, where an NHS trust may end up spanning two integrated care board areas, those boards may decide to have a lead commissioner of services from a trust. The purpose of the amendment is to put beyond any doubt that any integrated care boards that might be impacted by a trust special administration order being triggered for an NHS trust should be consulted as part of that formal process.

Amendments 15 and 16 ensure that the trust special administration process reflects the role the ICBs will play and the different levels of autonomy and status between different NHS trusts and foundation trusts under the present system, putting the need for calibration and consultation at the heart of the measure. For those reasons, I ask the Committee to support the amendments.

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to serve with you in the Chair, Mrs Murray. There is not a tremendous amount to get excited about in these clauses and amendments, but I want to ask a couple of questions of the Minister.

On clause 58, it makes sense to provide for a time where there needs to be a transfer of property, rights or liabilities from one NHS trust or foundation trust to another. Indeed, I suspect that our conversations about boundaries in earlier parts of the Bill are far from finished. That may have a knock-on impact on providers, so we may see it used in the near future. On the powers reserved for NHS England to create transfer schemes, it is not greatly surprising that it is the ultimate arbiter of applications. That is consistent with the rest of the Bill.

I could not tempt the Minister to cover one point in the final grouping on Tuesday evening, and I hope he might expand on it now. Where are the integrated care boards in this? Surely they would have a significant view about changes to the providers, and possibly the splitting up of providers—the Minister mentioned cross-border trusts, and how that might be led with lead providers. It is not inconceivable that the integrated care boards might have significant views, so should there not at least be a sense that their views have been sought? If not, there ought to be support, which would probably be desirable. In the previous grouping, we covered the fact that that was also true for trusts entering special measures and for trusts becoming foundation trusts. Again, there was no sense of what the ICB’s role was. I do not think that the Minister mentioned that in his summing up. I hope that he might do so on this occasion.

I heard what the Minister said about Government amendments 15 and 16, which I have a lot more sympathy for. I raised this issue on Tuesday night. Where the Care Quality Commission and NHS England are involved in a trust failure situation, they should of course want the ICB to be a part of that process. I believe that the point the Minister made was that amendments 15 and 16 will amend the clause sufficiently to ensure that integrated care boards have their say in situations of failure. I hope he will clarify that ICBs in any such situation will get due consultation about what comes next.

I accept the Minister’s point that clause 59 does not represent a material change in direction or policy from where we are today, but instead tidies up who is responsible and deals with new arrangements for NHS England, as set out earlier in the Bill. Again, there is not much of a reference to the ICBs. Hopefully we get clarity that the point of the amendments is to put that back in. If so, obviously we would support that, but I would wonder why that has not happened in other places—both in this group and previous ones too.

The Minister will love how granular this inquiry is. I ask it for no other reason than out of a genuine desire to know the answer; I am not trying to catch anybody out. Schedule 8 replaces section 65KD of the National Health Service Act 2006. Proposed new section 65KD mentions ICBs—I think it was about the only reference to them in the schedule, before the Government tabled amendments 15 and 16—and provides for what happens should an ICB fail to discharge its functions. In that case, under proposed new subsection (5)(b),

“the Secretary of State may exercise the functions of NHS England under section 14Z59(2), (3)(a) and (5)(a)”,

which are introduced by the Bill.

Proposed new section 14Z59 is titled:

“Power to give directions to integrated care boards”.

At that point, the Secretary of State has taken over NHS England’s role and now acts as NHS England himself or herself. Can the Minister explain why that would be necessary? If we are saying that an ICB is part of a failure of circumstances, not discharging its functions properly, would not the first port of call traditionally be the centre—NHS England—to step in and provide support, or is there a judgment that the national leadership has failed too if the local leadership has failed, and therefore the Secretary of State must be the next link in the chain?

I am conscious that that is a granular query, but I think the provision departs from principles earlier in the Bill. It may well be that this is a very specific and niche example, in which case there is less to worry about, but I would like an explanation on that, and on where ICBs are in the grand processes around clause 58. When changes happen, what consultation does there have to be with them, and what support will they have?

[Edward Argar]

On the shadow Minister’s central question about where ICBs fit in, he is right that we envisage their being, as we have discussed throughout, central to decision making in their locality. He is right to highlight that, as drafted, there was the potential for them to be regarded as not front and centre, hence Government amendments 15 and 16, which we hope add clarity and add that ICBs will be consulted, for example, when a special administrator is being appointed. We wanted to include them as part of that process. I fully acknowledge that, as drafted, there was a degree of ambiguity. That is why the Government introduced the amendments. I do not like having to amend my own legislation, but I think it important that we do so here.

[Alex Norris]

The Minister should not be shy about that at all. It is good sign, and shows that, after publication, he is still reflecting on the Bill and improving it as we go along. That is a strength rather than a weakness. However, these are amendments to schedule 8. I am surprised that there are no counterpart amendments for clause 58 or to the group that we discussed previously, which included clauses 39 to 42 and clauses 44 to 50. Why was the judgment made not to amend those in a similar way?

[Edward Argar]

We took the view that in this case there are very obvious consequences. In normal circumstances, we envisage collaborative work with, and the involvement of, the ICB. I was very keen that we were explicit here. It could be argued, as I would have done, that the clauses did not prohibit such co-operation, but I wanted to be very specific, because the appointment of a special administrator and the actions likely to be taken in that context could have profound impacts on the system. I wanted to be absolutely explicit about the need to involve ICBs.

The hon. Gentleman asked a detailed and granular question about paragraph 15(4) of schedule 8, and the powers in proposed new subsection (5)(b). The key point is that we would envisage it going up through the chain of accountability—chain of command is wrong word—but it is important that we recognise, as we do with the Bill, that the Secretary of State has a role in that chain of accountability to the House, to the public and to others. That theme has run through a lot of the discussions of the legislation, so we therefore think it appropriate to include the Secretary of State in that subsection.

Question put and agreed to.

Clause 58 ordered to stand part of the Bill.

Clause 59 accordingly ordered to stand part of the Bill.

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss the following:

Clause 61 stand part.

That schedule 9 be the Ninth schedule to the Bill.

[Edward Argar]

As the Committee knows, one intention of the Bill is to create more flexibility, alongside the promotion of greater local integration. The clauses help to allow local bodies to work together in different ways to deliver effective health services.

Clause 60 enables NHS organisations, and any other bodies that may be prescribed in regulations, to commission and arrange services collaboratively, not only with other NHS organisations but with local authorities, combined authorities and other bodies that could be specified in regulations. Existing NHS legislative mechanisms make it difficult for the health and care system to work collaboratively and flexibly across different organisations, forcing local systems to adopt complex workarounds to be able to take joint decisions and pool budgets. In that context, back in the day, when I served in a local authority, we used section 75 of the 2006 Act as one mechanism for doing that with the local primary care trust.

In practice, however, those arrangements can sometimes be cumbersome and difficult to manage, and can delay making vital decisions. The new provisions inserted by the clause into the NHS Act 2006 will enable NHS organisations and any other bodies that may be prescribed in regulations to delegate functions to, or jointly exercise functions with, other NHS organisations, local authorities, combined authorities and other bodies as specified in regulations. Where functions are exercised jointly, the provisions will also enable those organisations to pool funds and form joint committees, facilitating partnership working and joint decision making at place and system level.

To ensure that delegation or joint exercise of functions does not lead to reduced accountability for delivering services, we have proposed appropriate safeguards in the clause. The Secretary of State will be able to set out in regulations which functions can and cannot be delegated, impose conditions in relation to delegation or joint exercise of functions, and specify the extent of such arrangements, for example. Furthermore, the parties will be able to agree terms as to the scope of the delegation arrangement. NHS England will have the ability to issue statutory guidance in relation to functions that are being delegated or jointly exercised under the provisions. The relevant body, as defined in the provision, must have regard to such guidance.

The provisions will replace those in existing sections 13Z, 13ZB and 14Z3 of the NHS Act 2006, which provide for the delegation of joint exercise of NHS England’s functions. The clause also amends section 75 of the 2006 Act, which I just alluded to. That section details arrangements between NHS bodies and local authorities so that where a combined authority, for example, exercises an NHS function as part of arrangements under the new provisions, it can be treated as an NHS body. That is in line with how combined authorities are treated for other, similar joint working arrangements.

Clause 61 and schedule 9 focus on the delegation of functions. Clause 61 inserts a new section into the NHS Act 2006 that makes express the assumption that a general reference in the Act to a person’s functions includes any functions that they are exercising on behalf of another person. That means, for example, that a reference in the Act to the functions of NHS England should cover any public health functions of the Secretary of State that NHS England may be exercising on their behalf under section 7A arrangements. The practical effect of this would be, for example, that any general duties that apply when NHS England is exercising its functions would also apply when it was exercising delegated functions. Until now, delegated functions have not been dealt with consistently in our health legislation. While it is not feasible, notwithstanding the suggestion of the shadow Minister, the hon. Member for Ellesmere Port and Neston, to remedy this issue across all health legislation in one consolidating Bill, this clause seeks to produce a more consistent approach.

Schedule 9 contains amendments to the NHS Act 2006 and other legislation to reflect the broader approach taken by clause 61 to delegated functions. Clause 61 also enables regulation to be made to create further exceptions where necessary to ensure that delegated functions are not covered by a provision where this would be inappropriate. Clause 61 addresses an important but technical legal issue in the Bill and is essential for enabling consistent and clear interpretation of our legislation.

These clauses are essential for ensuring that NHS organisations can collaborate effectively with each other as well as with other partners in the system. I therefore commend clauses 60 and 61 and schedule 9 to the Committee.

[Justin Madders]

Members will be relieved to hear that I will not detain the Committee long on this. Clause 60 does what the NHS itself has decided it needs. Over the last six years, we have had various iterations of this integration process, joining things up around joint working, joint bodies and delegation. The provisions try to put all that in one place.

A recurring theme is clarity about the extent of crossovers between local authorities and the NHS. In that respect, proposed new section 65Z5 suggests that local authorities can carry out any function of an NHS body. Could the Minister say more about that? Does it mean that we could see local authorities commissioning—setting up GP surgeries in wellbeing centres? We are assuming that this is one-way and there is no reciprocal arrangement for the NHS to take on local authority functions, so that a foundation trust could not take on an arm’s length management organisation or some other local authority function as a tax-efficient way of avoiding certain liabilities. Could the Minister respond on that?

I also wonder about care trusts, which were the original integrated working teams with the NHS and local authorities. They are rarely mentioned and were largely regarded as unsuccessful. Is there any intention to favour such genuinely integrated bodies? They were used in one recent case by an integrated care provider to get around some of the prohibitions on new trusts. Can the Minister tell us anything about where care trusts now fit into the landscape?

Given the joint nature of the provision, I would like to know why the guidance was published only by NHS England. Should it not have been a joint effort by the NHS and the Local Government Association? Was the LGA consulted and involved in the preparation of the guidance? That perhaps exposes that this is really about the NHS, not about integration across the board. As we have heard today, the ICPs will roll up at some later point, perhaps exposing the reality that this is going to be an NHS-dominated process.

Finally, on the pooling of funds, is there any limit on that? Is that envisaged to be an occasional opportunity, or will it be a more significant step down a road of full funding? Will the Minister set out whether the direction of travel will be quite as dramatic as possibly suggested by the clause?

[Edward Argar]

I am grateful to the shadow Minister for his support for the clauses and for the, as ever, perfectly sensible questions he poses. I hope to reassure him that the intention behind the clauses is not to create tax-efficient organisations or anything like that; it is to create the most efficient organisations for the delivery of joined-up care. I alluded to section 75 of the 2006 Act, which is an example of what many local authorities are doing already.

On guidance, I hope to reassure the hon. Gentleman that, throughout the genesis of the legislation, we worked collaboratively with the Local Government Association, reflecting local authorities more broadly. As we develop guidance, I am clear that the NHS, NHS England and the Government will continue to work with the association to ensure that local government’s view is reflected in the drafting. A number of conversations have already taken place between officials and the LGA. Notwithstanding the debates we may have in this House or how the legislation emerges, I am clear that we will continue to work collaboratively throughout with all the partners involved, even in areas where we may disagree. We will always seek to work with them.

The hon. Gentleman expressed concerns—he will shake his head if I paraphrase him unfairly—about whether the legislation will allow for unlimited or unfettered delegation without checks and balances. Will we be able to transfer anything from an NHS trust to a local authority, or vice versa? The short answer is no. There will need to be a clear line of accountability between the body ultimately exercising the function and the delegating body. Safeguards ensure that any onward delegation is appropriate. That said, there may be circumstances in which a local authority would commission a particular healthcare service linked to other functions of the local authority delegated from the NHS. We would expect that clear accountability to be in place where that is done. We do not envisage the power being used regularly in that way, but there might be circumstances in which it would be.

Regulations may restrict what, where, when and how—and, indeed, to whom—delegations occur. The delegation agreement may also prevent further onward delegation of functions beyond a certain level. In addition—this goes back to the hon. Gentleman’s point about the LGA—NHS England will, I expect, issue statutory guidance on delegation and joint committees, which would include scenarios, case studies, model delegation agreements and similar to show how, in practice, we envisage this working. The guidance would be statutory, and I envisage it being developed in concert with local authorities, represented by the Local Government Association—that is probably the most effective way of doing that.

I hope that I have given the hon. Gentleman some reassurance that there is nothing sinister—for want of a better word—intended in the clauses; they are merely meant to make things easier for local NHS bodies and local authorities, in particular, to co-operate more. That goes back to the integration at the heart of—the thread that runs through—all the legislation.

Question put and agreed to.

Clause 60 accordingly ordered to stand part of the Bill.

Clause 61 ordered to stand part of the Bill.

Schedule 9 agreed to.

Clause 62 ordered to stand part of the Bill.

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss clause 64 stand part.

[Edward Argar]

Before I speak to clauses 63 and 64, I crave your indulgence, Mrs Murray: I should have said to the shadow Minister that the previous clauses were about delegation from the NHS to local authorities, not the other way around. I would just like to put that on the record for him, because he expressed a concern about that.

Clauses 63 and 64 have been included in the Bill to help support ICBs and ICPs and to enhance integration across the health and care system. Clause 63 allows NHS England to issue guidance about appointing an individual to roles simultaneously in NHS commissioners and NHS providers, or in relevant NHS bodies on the one hand, and local authorities or combined authorities on the other. We have seen a number of clinical commissioning group and local authority joint appointments that have supported integration and been successful, and we would be keen to see those continue.

The clause further sets a requirement for these NHS bodies to have regard to such guidance when considering making a joint appointment. Joint appointments between organisations can support aligned decision making, enhance leadership across organisations and improve the delivery of integrated care. However, we believe that greater clarity is required to support organisations in making appropriate joint appointments, to avoid conflicts of interest that can be difficult to manage. Before issuing any new or significantly revised guidance, NHS England would be required to consult with appropriate persons.

Clause 63 will allow NHS England to publish a clear set of criteria for organisations to consider when making joint appointments and ensure regard is given to such guidance. That will also provide a safeguard against any conflicts of interest that may arise in the process of making joint appointments.

Clause 64 amends sections 72 and 82 of the National Health Service Act 2006, which deal with the co-operation between NHS bodies and the co-operation between NHS bodies and local authorities respectively. The clause inserts a new power for the Secretary of State to make guidance related to the existing co-operation duties between NHS bodies and between NHS bodies and local authorities. While the existing co-operation duties in sections 72 and 82 relate to both English and Welsh NHS bodies and local authorities, the guidance relates only to England, and the requirement to have regard to guidance issued under this new power will apply only to English NHS bodies and English local authorities.

Our intention is not to produce a single piece of co-operation guidance, which would risk being too general or too wide-ranging to be effective. Rather, we are considering discrete pieces of guidance in specific areas such as delivery of alcohol and drugs services, sexual and reproductive health, or hospital discharge services, to encourage and facilitate co-operation and integration in their delivery.

The clause also amends section 96 of the Health and Social Care Act 2012, which concerns the setting of licensing conditions for providers of NHS services. The licence, as we touched on earlier today, was established in 2013 so that providers of NHS services must meet to help ensure that the health sector works for the benefit of patients. Currently, conditions can be set on co-operation, but these provisions can apply only in certain circumstances.

The clause goes further: it supports system integration, promotes greater co-operation by removing the limitation on setting licence conditions on co-operation, and expands the range of bodies with which co-operation can be required. That will strengthen and reinforce the requirements on providers to co-operate and further strengthens the ability for NHS providers to deliver the system plan.

Co-operation is central to the intentions and underpinnings of this Bill. New guidance and expanding the role co-operation plays in the licensing regime will give organisations greater clarity about the practical expectations for co-operation, help the NHS to build on the innovation, working relationships and positive behaviours that have been seen over the past year, and further embed these behaviours across the health and care system. I therefore commend these clauses to the Committee.

[Justin Madders]

I am sure the Minister will be unsurprised to learn that the Opposition are a little wary of the powers in clause 63. One person doing two jobs is never ideal. I make an honourable exception for the hon. Member for Vale of Clwyd, who, in his other role, plays an important part in contributing to the wellbeing of the nation. Such exceptions are rare, and we think that two jobs for one person is never a sustainable or long-term solution.

We draw a distinction between a secondment, which obviously means that the position is by definition time limited and allows the post-holder to return to their original position. It is often good for career development, and that kind of mobility and interchange between the NHS and local authorities may be a very positive development, particularly with ICBs. However, the idea that there can be a joint appointment of a commissioner and a provider sounds wholly contradictory. Although the Minister has tried to allay our concerns by referring to guidance, it is clear that an NHS body needs to only “have regard” to that guidance. The question remains: at what point does someone step in when there is a clear and detrimental conflict of interest? We will see what the Minister has to say, but it we may need to keep a very close eye on that.

Clause 64 is a rather less obvious power grab by the Secretary of State, but it is one all the same. Clearly, he is not satisfied with the extent of co-operation between NHS bodies, because the Secretary of State now wants to be able to tell them how to co-operate. The guidance is to be issued, and a duty is to be placed on NHS bodies to follow it, or else face the consequences. What of? It is good old-fashioned persuasion—the willingness to work together for the greater good. It is actually the case that the Secretary of State wants two goes at this, as there are further powers to issue guidance in respect of NHS bodies and local authorities, which currently have to co-operate in order to advance the health and wellbeing of people.

Surely it is the case that they are doing that already. I cannot think of any reason why they would not co-operate, but what would be the sanction if they do not? Can the Minister tell us who he thinks these errant councils are that are not co-operating? Between myself, my hon. Friend the Member for Nottingham North and the Minister himself, we must have over a quarter of a century of experience in local government, and I cannot think of any occasion when councils were anything other than co-operative with the NHS. That is my experience, but if the Minister can help fill in the gaps, I would be most obliged.

[Edward Argar]

The shadow Minister tempts me to name and shame. He may be tempting me in vain. He raised three key points. One was about one person doing two jobs. To paraphrase him, he asked how that would work and why it was appropriate. He also mentioned conflicts of interest and asked why it was necessary and appropriate for the Secretary of State should have these powers.

To his first point, the clause is about driving greater integration. During my time as a member of Westminster City Council many years ago, we had a joint appointment. Our director of public health, if I recall correctly, was also an NHS appointment and she sat in both organisations in the senior management structure. It was extremely effective. Conflicts of interest, as we would envisage here, were managed both within the system and in accordance with guidance and principles of appointments and appropriate governance. That worked extremely well. It was not so much one person doing two jobs, but where the job was needed and the job description fitted both organisations, it delivered a real synergy and better outcomes.

There are circumstances where it can work. I would not have envisaged it being used essentially so that one person has multiple roles and jobs, but there are occasions when there is a benefit from someone sitting jointly in two organisations to help drive that integration and shared understanding. We can create, as we are doing here, mechanisms and structures to help drive integration and co-operation, but as the hon. Member for Nottingham North will know, and as the hon. Member for Bristol South will know from her time in the NHS, we can have those structures, but ensuring that organisations work effectively often relies on individuals, personal relationships and the trust that builds up at that level.

[Karin Smyth (Bristol South) (Lab)]

My hon. Friend the Member for Ellesmere Port and Neston asked about care trusts, and the clause is partly designed for just that. The real problem with the clause and with joint appointments is that we already know that there are probably not enough senior, experienced people to go around to manage the difficult job of running a large hospital. The issue is ultimately about the focus on those hospitals and, indeed, on patient safety. The job of a chief executive of an NHS trust or foundation trust is an absolutely critical and quite busy one, but we are encouraging those people to take on an ICB leadership role, or joint roles in a local authority. We can either accept that those are large organisations that require particularly skilled people whom we pay properly, or we can simply merge the organisations. I would go for the former option. There are not enough of those people to go around. There is not enough variety of people. We are not encouraging the pipeline of talent, and we are not diversifying enough, and that is reflected in the NHS looking inward at itself. It is a big mistake to accept that we must have those joint appointments to bring the NHS together and make organisations collaborate.

[Edward Argar]

I am grateful to the hon. Lady, but those joint appointments have always gone on—they have existed for many years. The example I referred to was in about 2008 or 2009, and it worked extremely well, as both organisations benefited from that individual being a part of both. Our clauses seek to ensure that those joint appointments work well and effectively.

The hon. Member for Ellesmere Port and Neston asked why the powers sit with the Secretary of State rather than with the local NHS or NHS England. I am afraid that he will not tempt me into naming any particular local authorities or otherwise. The NHS is a critical part of our health and care system, but integration and co-operation need to go beyond the NHS itself, encompassing the role of local authorities in this space, which we all recognise. I hope that that co-operation will be consensual and voluntary, as the hon. Gentleman said, but it is important that the Secretary of State, with his accountability to this place and to the public, sits above that system. I would argue that he is in the best position to offer guidance on how that system can co-operate, and to help to resolve matters.

[Justin Madders]

One of the things that we have been told consistently is that integration and joint working are already well under way on the ground, and that the Bill is, in part, just putting a legislative seal on that work. If that is correct, why does the Secretary of State need those additional powers?

[Edward Argar]

Because we wish to take the opportunity to further drive forward the integration. The system has evolved, but we want to be more ambitious. The powers reflect the fact that the Secretary of State is able to take that wide perspective to most effectively see those two organisations coming together at a macro level—at the national level. That does not mean that I am denigrating in any way the evolution that is already occurring voluntarily in a whole range of areas around the country.

I sense that the hon. Gentleman is still unconvinced by joint appointments, so I will say a little more about them before I conclude, although I might still leave him unconvinced. There are already very few prohibitions on joint appointments, and we see an increasing number of them. In some cases, however, there could be a perception, or a reality, of a potential conflict of interest that could be difficult to manage or could lead to a perception of bias. We recognise that, which is why we have proposed the power to issue guidance to help organisations make the right joint appointments and to help them understand what factors to consider when deciding whether to proceed down the route of a joint appointment. The new powers for NHS England to issue guidance will ensure that there is a clear set of criteria against which to judge joint appointments when considering whether to make one. Bodies will have to have due regard to that guidance. I believe that the powers are proportionate.

[Justin Madders]

I am grateful to the Minister for giving way again. One of the critiques that we have developed —I hope that he has noticed—is that the Secretary of State has given himself an awful lot of powers and abilities to intervene. It seems highly incongruous that in the specific example of joint appointments, where there would be a clear role for the Secretary of State to intervene, he has not availed himself of the opportunity to do so.

[Edward Argar]

As with so much else in the Bill, we are trying to future-proof it. Indeed, the shadow Minister and others made the point in a different context. Where are the powers? What are the options if there is disagreement, a dispute or a conflict? While not anticipating conflict, we are seeking to ensure that the Secretary of State is able to issue guidance to resolve any conflict or issues that may arise in that context. It is a pragmatic and proportionate measure to ensure that any such risks can be managed.

Question put and agreed to.

Clause 63 accordingly ordered to stand part of the Bill.

Clauses 64 and 65 ordered to stand part of the Bill.

Clause 66

The NHS payment scheme

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 84, in schedule 10, page 197, line 17, at end insert—

“(1A) The NHS payment scheme must ensure that the price paid to any provider of services which is neither an NHS Trust nor an NHS Foundation Trust cannot be different from the price paid to an NHS Trust or NHS Foundation Trust.”

This amendment ensures payment to private providers can only be made at tariff price to prevent competition for services based on price.

Amendment 100, in schedule 10, page 197, line 17, at end insert—

“(1A) NHS England must obtain the agreement of the Secretary of State before publishing the NHS payment scheme.”

This amendment ensures that the NHS payment scheme, which sets out the prices to be paid for NHS services, is approved by the Secretary of State.

That schedule 10 be the Tenth schedule to the Bill.

[Edward Argar]

I express my gratitude—I may be less grateful when I sum up—to hon. Members for tabling the amendments, and for the discussion that we are going to have about the NHS payment scheme. The Bill replaces the national tariff with a new NHS payment scheme, with additional flexibilities to allow the NHS to deliver population-based funding and more integrated care approaches. The NHS payment scheme, which will set rules about how commissioners pay providers for services, will apply to all providers of NHS services, including NHS trusts and foundation trusts, the voluntary sector and the independent sector.

Amendment 84 aims to ensure that payment to private providers can be made only at tariff price. While we will not introduce competition on price, rather than quality, there may be scenarios where it is appropriate to pay non-NHS providers different prices from those paid to NHS providers, to take account of differences in the cost of providing those services—for example, different staffing 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 the prices payable represent a fair level of pay for the providers of those services, as well as fair pay between providers of similar services.

I reassure the Committee that we do not expect to see the rules being used to give a premium to private providers to encourage them to enter the market. We do not expect to pay the independent sector 11.2% greater than the NHS equivalent cost, as the King’s Fund briefing on independent sector treatment centres set out in 2009. Nor do we expect commissioners to pay for 100% of the contract value regardless of whether the activity reached the contracted level. Instead, the new payment scheme delivers what the NHS has asked for to implement its long-term plan. For that reason, we encourage Opposition Members not to press the amendment to a Division, but I may be pressing them in vain.

The Government will also, I am afraid, oppose amendment 100, which would require the NHS payment scheme to be approved by the Secretary of State. The NHS payment scheme will be published by NHS England, following consultation with relevant providers and commissioners, and, where relevant, the publication of an impact assessment. Integrated care boards and relevant providers will be able to make representations and formally object in response to consultations on the NHS payment scheme, as they can with the national tariff. Where the percentage of objections exceeds the prescribed threshold for either ICBs or relevant providers, or both, NHS England must further consult the representatives of the ICBs and providers that were objecting. NHS England may then publish a revised payment scheme, with another consultation for significant changes. It will also be able to publish the proposed scheme without amendment, but will be required to publish a notice stating that decision and setting out the reasons for it.

The Government are responsible for setting out overall funding for NHS England, who in turn will continue to be required to have regard to fair levels of reimbursement for providers in setting the details of the payment scheme. The Department and NHS England will continue to work closely together in the development of the NHS payment scheme, as we do with the national tariff. However, as a last resort, derived from clause 37 powers of direction, the Secretary of State will be able to require NHS England to share the NHS payment scheme before publication. The Secretary of State will also be able to direct NHS England not to publish a payment scheme without his approval, and about the contents of the payment scheme under his general powers of direction under clause 37.

Although we do not expect to need to use the powers of direction to intervene in this area, they can be used and will act as a further safeguard against unfair payment scheme provisions, as well as allowing for appropriate parliamentary accountability for funding flows in the NHS. The consultation requirements in schedule 10, and the general powers of direction, allow for sufficient Government oversight and accountability for the payment scheme, and further specific provisions would be inflexible and unnecessary. [Interruption.] I will shorten my remarks. [Hon. Members: “No!”] I am happy to go on and on, but I fear the Committee might wish me to conclude. In that context, I will highlight to the Committee that, as with the national tariff, fair levels of reimbursement are a key principle of the legal framework reflected in NHS England’s duty in subsection (6) of proposed new section 114A(6) to have regard to differences in providers’ costs and the different range of services that they provide for the purpose of securing that prices and the overall payment scheme result in a fair level of pay to different types of providers.

I will also highlight and draw to the Committee’s attention provisions in proposed new section 114C as inserted by schedule 10, which makes clear that, before publishing the payment scheme, NHS England must consult integrated care boards, relevant providers and any other person that NHS England thinks appropriate. It must also provide an impact assessment of the impact of the proposed scheme.

[Karin Smyth]

There is a lot of drawing up of complicated documents and costings and then a lot of complicated consultation and decisions on whether the Secretary of State will or will not decide whether he wants to be involved in looking at what the final solution is. Does the Minister have any idea of when we might see the final NHS payment system under the new arrangement?

[Edward Argar]

I would not prejudge the passage of the legislation and how the House might judge it, but I look forward to such a scheme being introduced expeditiously, if I may put it that way to the hon. Member. I hope I can also reassure the Committee in respect of amendment 107, which was not selected but raised issues pertinent to the clause more broadly. This is important. It is right that the amendment was not selected—I appreciate that it was not tabled by a member of the Committee—but it does highlight issues that we need to put on the record. I appreciate the impulse behind it.

Although NHS staff pay and conditions are outside the scope of the proposed payment scheme and are protected by provisions made elsewhere, unions and other representative bodies may wish to be reassured that their members are able to go to work in appropriately funded services. I hope I have given reassurance on that point and set out why I feel the amendment, although I am grateful that it was not selected, would be unnecessary, as the Bill already requires NHS England to consult with integrated care boards, relevant providers and any other person the NHS thinks appropriate before publishing a payment scheme. It must also publish an impact assessment of the proposed scheme, ensuring that any potential consultation is properly informed of the potential effects of the scheme. I appreciate that the amendment was not selected, but I put those points on the record as I can understand the intent behind the amendment and I wanted to offer those reassurances. I hope I can persuade Opposition Members not to press amendments 84 and 100 to a vote, but I may be unlucky in that respect.

Clause 66 introduces schedule 10, which amends the Health and Social Care Act 2012 by repealing the national tariff and replacing it with the new NHS payment scheme. The national tariff has for many years improved access to services and driven up quality across the NHS, but as we move towards a more integrated system focused on prevention, joint working and more care delivered in the community, we need to update the NHS pricing systems to reflect new ways of working since the tariff was introduced, and in the light of the covid-19 pandemic.

The new NHS payment scheme will build on the success of the tariff. It will support stronger collaboration than ever before, with shared incentives for commissioners and providers of services to improve quality of care and promote sustainable use of NHS resources. The scheme will move away from a wholly payment-by-activity approach to an approach that supports more joined-up ways of delivering services, with commissioners and providers working together to deliver the best quality care.

The new payment scheme will remove perverse incentives for patients to be treated in acute settings and allow more patients than ever before to be treated closer to home and in the community. It will allow NHS England to guide the health system, through the development of guide prices for entire care pathways, while ensuring that local systems have the necessary flexibility to deliver high-quality care and use NHS resources sustainably.

The payment scheme will specify rules that commissioners must follow when determining prices paid to providers of NHS-funded healthcare services. It will allow significant flexibility over the current pricing scheme, and allow rules to set prices, formulas and factors that must be considered when determining prices paid. It also allows for in-year modifications to the rules, to reflect changes in the costs of providing services.

Crucially, the scheme will also allow the NHS to set prices for public health services commissioned by the NHS, on behalf of the Secretary of State, such as maternity screening, to allow for seamless funding streams for episodes of care. These changes to increase the flexibility and reduce transactional bureaucracy associated with the current tariff are, we believe, crucial to integrating care and tackling the elective backlog. I therefore commend this clause and schedule to the committee.

[Alex Norris]

Clause 66 is exceptionally important, so I cannot promise the same brevity as the Minister. I think the rules work slightly differently on the hard stop on a Thursday than they do on a Tuesday.

Health and Care Bill (Twelfth sitting)

Edward Argar Excerpts

Committee stage
Thursday 23rd September 2021 Public Bill Committees

[Karin Smyth (Bristol South) (Lab)]

It is a pleasure to see you in the Chair this afternoon, Mr McCabe. You missed the start of an exciting debate about the NHS payment system; I am sure you are grateful not to miss the end of it.

The complexities of NHS funding are hardly mentioned in the Bill, and some hon. Members may think thank goodness for that, but I urge them to take a bit more account of clause 66—as my hon. Friend the Member for Nottingham North has said, it is a short one—because we are talking about over £100 billion of taxpayers’ money, rising to 40% of the Government’s annual spend. It is particularly important that we understand how and where that money is spent and to be assured that it is spent effectively and efficiently.

In large part because of the data collection journey that it has been on for some 20 or 30 years, we know that the NHS is the most efficient system we could have, as has been reviewed in numerous reports during that time. We have ways of looking at variations across the country and across a city such as my own, and that can only be a good thing. There are people—I am not suggesting there are any in this Committee Room—who think the NHS is a continuous money pit, is inefficient and could be operated better in another way, and part of understanding that argument is to understand the data and the way in which the money is spent, particularly the costings.

As I said in my earlier intervention on the Minister, about the process that has now been embarked on of producing a payment system, this clause is really important and really quite concerning. We have no idea when this payment system is going to be available.

[The Minister for Health (Edward Argar)]

Before the hon. Lady asks more questions, I may be able to reassure her by adding to what I said this morning as I have now discussed this further. I said “expeditiously”; I am willing to go further on the Floor of the Committee Room now and say that I would expect the scheme—I may be creating a hostage to fortune—to be published in the course of 2022. I hope that gives her a little reassurance; she will now hold me to that.

[Karin Smyth]

There is an army of accountants out there suddenly looking at their abacuses and speeding up the work they are doing.

My hon. Friend the Member for Nottingham North mentioned coding. The basis on which we know how much things cost—we can then compare things, look at efficiency and so on—is coding. We know there has been some up-coding over the years, but we also know that it took a large effort to train up and try to reward coders, who are often the lowest of admin staff, to recognise how important they are to the system.

Part of that was a drive for competition, payment by results in foundation trusts and so on, but it seems that that is all going to be swept aside by the Bill in the interests of co-operation—that is another word for collaboration, which is something we all support. I do think that running through this Bill is a problem of throwing the baby out with the bathwater. In the 1970s and early 1980s, the NHS really had no idea what things cost and what value they brought. We had no way of objectively understanding how scarce resources were being allocated. In a publicly funded system, that should worry us all, particularly as we in Parliament are the guardians of the public’s money.

We can argue about how much money will be saved by not having the current system. I am not sure that much money will be saved by abolishing the current system, although the Minister may be able to assure us about this point today. I gently advise the Minister and the Secretary of State to take a great deal of interest in this and consider how the NHS will produce such a system in 16 or 17 months at the maximum, as we have just heard. The data on which the system is predicated—the collection of that data, and the use of it to inform clinical and managerial practice—will continue, but, without the incentives around competition and price and the competing agenda of recovery and the management of large hospitals in particular, it will be quite a tall order.

The Secretary of State and the Minister might want to look at the issue in a bit more detail. The Minister outlined quite a complicated process about how we will get to this scheme and a lot of consultation. Although I am all for democracy, as we embark on our conference season the Minister might want to consider at some point why a scheme should go out to quite so much review and consultation by the providers in the system.

Perhaps I could say something here about how the issue affects our local system. When we start to iron it all out and see the impact assessment on the impact—classic NHS terminology—on our local communities, there will be, for want of a better phrase, a bun fight in all our local communities. Again, as my hon. Friend the Member for Nottingham North outlined earlier, when we talk about payment by results it is, of course, acute sector trusts that are the major drivers. Mental health, learning disabilities, community services, and GP services are outwith some of that funding scheme.

Many providers then wanted to come on to the system because they felt that it was more rewarding financially and better for their bottom line. The fact that those services are outwith the scheme remains a problem. I can see why the Government want to change that, but it is not quite as simple as they might want to make out. My hon. Friend has talked much about whether we start competing on price, but now that we know that competition on price is not being permitted, that does throw out a lot of other issues, particularly those around the procurement system.

With regard to amendment 84, the Minister made reference to independent sector treatment centres and incentives for getting the private sector in under previous Governments. We can all banter about the politics of that, but the key task for the Labour Government was to incentivise and change practice in a monolithic system, to drive down waiting lists and times. The question that I leave hanging for the Minister is, given the movement to a new payment system, how will the patient voice, waiting times and waiting lists be managed and incentivised in a central block payment system, which is what I think we are looking at?

Furthermore, with regard to our amendment, the private sector, having no responsibility for education, training and the large crumbling estate, should be able to offer any kind of services at a lower price than the NHS by any logic of efficient running. Ensuring that it is not offered more is the very minimum that we should be demanding. Given that the private sector should have a lower-cost base than the public sector, perhaps it should offer a cheaper price.

Does the Minister have a view on whether paying by results will be anywhere in the new system? Are we to continue following the changes made during covid, by which I mean the block grant system, which allows for baseline costs, a bit of variation for the population, and perhaps some deduction for efficiency and top-ups for various programmes—a bit like the old days when we mysteriously drew down pots of money from the centre for various programmes across the country? What is the balance between that block funding, payment by results and programme funding? Will there be an assessment of the impact of this change, particularly on reducing lengths of stay, as a measure of efficiency in the system, or on reduced waiting times and waits for diagnostics?

It would be good to nail down a few of these key principles in the Bill. The Secretary of State should really approve any scheme and give Parliament a look in; we should understand, as local representatives, what the impact is on our local system and whether we are gaining or losing money, or whether this is just £100 billion-plus going into a central pot and then seeing what happens—that cannot be sustainable.

Private providers should certainly have no say in the rule-setting, as this is a public service; if it is not a market, it is not a market. We are going to be able to debate this only when we know what it is. Given that the Minister has given a big push to the abacuses across the country, with a deadline of somewhere in 2022, for a Bill that we are expecting to put into a new system for April 2022, this situation is not satisfactory for us as representatives. There must be some way—perhaps this will be debated when the Bill leaves this place—for us to understand the broad principles and criteria. We know that there is going to be guidance from NHS England, but if it is going out for consultation, re-consultation and re-consultation, then redrafting and at some point the Secretary of State is going to see it, at some point Parliament should have a say or have a look at that and we, as local representatives, should understand what the impact is on our local communities.

We should also understand what the impact is on the balance between the acute sector, and the community and primary sector—and mental health and learning disability services. Another real concern about the Bill, which I will keep referring back to, is the cartel between the acute trusts and this new integrated care board, and the cutting out now of GP primary care commissioners, and the rolling back on the aims of the primary care trusts to switch the movement of the NHS to be focused not just on the money and where the big money is being spent, but on the service for patients and the public.

The crucial point for the Government will be: how are they going to use the financial mechanisms that exist to recover the backlog and put the NHS back on an equal footing? We have been asked to pay more for the new part of social care as well. As we continue to ask our constituents, the taxpayers, to pay more for what is a good, efficient service that does use its money well—we know that and we want to keep knowing that—how are we going to be able to persuade them of that in the future if we have this amorphous block allocation of money and no incentive to keep focused on efficiency and, in particular, on data collection?

[Edward Argar]

It is a pleasure, once again, Mr McCabe, to serve under your chairmanship. I fear I may not persuade Opposition Members not to press amendment 100—but you never know, so I will try my luck. The hon. Lady made a number of points and I responded to one when she kindly took an intervention; the only caveat I should add is that that, as she has alluded to, is subject to the passage of this legislation. I would not wish to pre-judge the mood of this House. With that in mind, the aim would be to publish in 2022, in time for the start of the 2023-24 financial year, to allow those systems to do the work they need to do.

The shadow Minister, the hon. Member for Nottingham North, asked, “Why use clause 37?” I think he was referring to the clause rather than me as being a “blunt instrument”—well, I will charitably assume that he was. The reason is simply that the setting up of the payment scheme is an operational issue, and in practice—I will turn in a moment to the strategic, broad points the hon. Lady made—we would not expect to intervene in the day-to-day running of the NHS as a matter of course. However, the hon. Lady is right to say that the payment scheme and the mechanism for payments is a powerful incentive to shape activity and how the NHS operates. I can reassure her, I hope, in one respect: I will certainly take a close interest, within the bounds of appropriateness, as will be set out in the Bill and the guidance underpinning it, in what the payment schemes look like. She is right in terms of the impact. She is also right—again, this could be career limiting; I hope the Whip does not note this down—to highlight some of the levers and mechanisms that the previous Prime Minister, Tony Blair, used in the early 2000s to make sure the money that he was investing in the NHS was driven through system and producing results.

--- Later in debate ---

In my four years in this place, I have championed the TUC’s Dying to Work campaign, which calls for employment rights to be frozen at the point of terminal diagnosis. This might not be quite the right vehicle for that, but it does enshrine, at the terrible point when a person receives that awful diagnosis, that at least a package of support kicks in for them. I am interested to hear from the Minister how, if not through this amendment, that might be done.

[Edward Argar]

Before I turn to the substance of my contribution, let me say that I am not aware of the specifics of the issue that the hon. Member for Nottingham North raised, but if he writes to me, I will pass it on to my officials and see whether I can look into it for him.

I am grateful to the hon. Member for Bristol South for bringing this important discussion on end-of-life care before the Committee today through her amendment. Amendment 93 would add a provision to the regulation-making powers in relation to patient choice, requiring that any regulations made under the power must make provision so that anyone with a diagnosis of terminal illness is offered a conversation about their holistic needs and their wishes and preferences for the end of their life. This would include addressing support for their mental and physical health, wellbeing, financial and practical matters and social relationships.

Such regulations would require that, where that individual lacks capacity for such a conversation, it is offered to another relevant person, and that a relevant authority must have regard to the needs and preferences recorded in such conversations in making decisions about the procurement of services.

It is of course incredibly important that anyone at the end of their life, whether or not they have been diagnosed with a terminal illness, has the opportunity to discuss their needs, wishes and preferences for their future care, so that they can be fully taken into account. There is already ongoing work across the health and care system to support this aim, including a commitment within the NHS long-term plan to provide more personalised care at the end of life. There is also a recently updated quality statement within the National Institute for Health and Care Excellence on advance care planning.

Furthermore, the ministerial oversight group, which was recently established following the CQC’s review of “do not attempt cardiopulmonary resuscitation” decisions during the covid-19 pandemic, is also developing a set of universal principles for advance care planning to further support health and care professionals in having appropriate and timely discussions with individuals at the end of life. I hope that the reassurance that I was able to offer the hon. Member for Bristol South in our discussion on a previous clause did help.

At this moment, I will pause briefly to join the hon. Member for Nottingham North and others in paying tribute to the work of Marie Curie, which does amazing work day in, day out. Through its work on this, it has helped to raise, in the context of the Bill, the profile of this issue.

I should also say to the hon. Gentleman that I recall his work, when we were relatively new Members in this place, on the TUC’s Dying to Work campaign. I have considerable sympathy with the campaign, and I pay tribute to him for his work back in the days when I was a Back Bencher and able to engage more directly with campaigns. I also pay tribute to the TUC for its work in this area, because it is extremely important. I hope that he will forgive me if I do not stray into other Departments’ policy remits, but the issues that he was bringing to the fore were important ones and that continues to be the case, so it is right that I acknowledge his work.

We know that patient choice is a powerful tool for improving patients’ experience of care, and we intend to ensure that effective provisions to promote patient choice remain. I do not feel that it is appropriate for it to be written into primary legislation. I am grateful that the hon. Member for Bristol South said she does not intend to press the amendment, but she makes her point.

[Karin Smyth]

I am grateful to the Minister for his response. He mentioned the ministerial oversight group on advanced care planning. Would he be able to indicate when we will hear from that review—if not now, perhaps in writing?

[Edward Argar]

I am happy to write to the hon. Lady to communicate that information to her.

We know how important patient choice is, and not just in terms of individual choice, although it is of course vital in that context, but also in helping drive the system to continuously improve. We take the view that it should be determined through regulations. We have chosen that approach to allow the legislation to be flexible and to reflect changing priorities and new policies in relation to patients’ rights to choice.

The shadow Minister raised the process and mechanism for complaints. The individual would in the first instance complain to the ICB, as the commissioner and main body providing and co-ordinating health services in their locality. If they are not satisfied with that, they could then escalate that complaint to NHS England. It is not straight to the top, as we all know through our casework. We recognise and advise our constituents to go through the complaints process, and only at the final stage does it reach Ministers and NHS England or ombudsmen or other national bodies. That would be our approach.

Regulations on patient choice have previously been made under section 75 of the Health and Social Care Act 2012. Opposition Members will of course be deeply saddened that that section is being repealed by the Bill, including its procurement elements. In so doing, the Bill also revokes the regulations covering patient choice, so clause 67 ensures that patient’s rights to choice continue to be protected.

The clause adds similar powers, including those relating to guidance and enforcement of the standing rules, into the National Health Service Act 2006, and introduces a requirement for the Secretary of State to make regulations on patient choice. The power to make guidance and enforcement of patient choice will be held by NHS England, following the planned merger with NHS Improvement, with the complaints process that I set out earlier. The clause will give NHS England powers, which NHS Improvement currently holds, to resolve any breaches of patient choice.

There is currently a wide range of choices that people should expect to be offered in the NHS services they use—for example, choosing a GP and GP practice and choosing where to go for your appointment as an outpatient—and the clause will allow for those and other aspects of patient choice to be preserved. The clause will make sure that, under the new model, bodies that arrange NHS services are required to protect, promote and facilitate the important right of patients to make choices about who provides those services.

We know that patient choice is an incredibly powerful tool for improving patients’ experiences of care. The clause will ensure that effective provisions to promote patient choice remain, will strengthen existing choice rights and will continue to make them a requirement of the decision-making bodies that commission healthcare services. Without the clause, patients’ right to choice would be removed along with section 75’s removal. NHS bodies would not be under duties to protect and promote patient choice. Clause 67 reinserts the right and inserts schedule 11.

Schedule 11 provides further details of the powers given to NHS England to resolve any breaches of the patient choice requirements imposed on an ICB. It requires NHS England to publish a procedure outlining how it will resolve failures of an integrated care board to comply with patient choice, and lays out the reporting and appeals process. It also allows NHS England to treat inaccurate, misleading or incorrect information from an ICB as failure to comply, which will, I hope, encourage the full and accurate engagement of an ICB in addressing a failure.

People should expect to be offered a wide range of choices, as I have alluded to, and the clause and schedule will allow for that. NHS England will be able to ensure that ICBs are required to protect, promote and facilitate that important and powerful right. We know how important that is for individuals and for driving the right behaviours in the system and to improving care.

[Mary Robinson (Cheadle) (Con)]

I am grateful to the Minister for highlighting this issue with such importance. We know that patient choice is vital when a person gets to those end-of-life stages and has a terminal illness. Could I request that consideration is also given to timeliness around choice-making? For some people, particularly those suffering with motor neurone disease, their disease can move quite swiftly, so timeliness in those conversations is important. I would be grateful if consideration could be given to that, and I am heartened by what I hear from the Minister.

[Edward Argar]

My hon. Friend is absolutely right about timeliness, both from the system, in initiating those conversations, and as something that all of us need to pay heed to as individuals. Before the pandemic and before she stood down at the 2019 election, I held an event in my constituency with the former right hon. Member for Loughborough, Baroness Morgan of Cotes, about thinking and making choices early and preparing ourselves for getting older—things like preparing a will and powers of attorney. All too often, for very understandable psychological reasons, many of us do not want to think about such things, because they are an intimation of mortality. However, it is important that as individuals and as a system and a society we think and plan early, because it can make such a huge difference to the quality of our older years or the end-of-life period.

Therefore, if I may, Mr McCabe, I commend clause 67 and schedule 11 to the Committee.

[Karin Smyth]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 67 ordered to stand part of the Bill.

Schedule 11 agreed to.

Clause 68

Procurement relations

--- Later in debate ---

[Jo Gideon (Stoke-on-Trent Central) (Con)]

I have listened with great interest to the points made by the hon. Lady and by the shadow Minister, the hon. Member for Ellesmere Port and Neston, but I do not recognise my NHS as being a sort of binary choice between public and private sectors.

During the pandemic, we have seen the incredible work across sectors; I am glad that the shadow Minister mentioned the voluntary and community sector, and charities, because that sector has largely been left out of people’s comments. Possibly it was convenient to leave it out because it shows that the breadth of the NHS family is more than the NHS itself; it is very much about everybody working together. For me, that is what integrated care is all about. I welcome the mention of the voluntary and community sector.

When we look at NHS procurement, we also need to focus on prevention as well as on clinical treatments because the wording of new clause 12 seems to focus very much on clinical treatments. We all agree, I think, that the purpose of integrated care is to have a big focus on the prevention piece, and the NHS family must surely include the third sector and private sector providers that are specialists in that area. For me, there is no conflict.

[Edward Argar]

I welcome the sentiments underpinning some of Opposition Members’ comments about our changes to section 75. I am nothing if not prepared to listen and be pragmatic, and I am glad that they at least welcome that aspect of the Bill.

I will address directly a number of Opposition Members’ points. My right hon. Friend—I mean my hon. Friend the Member for Stoke-on-Trent Central, but it is surely only a matter of time before she is right honourable—was absolutely right about the NHS family being wider than the NHS itself. All these organisations are involved; to be fair to the shadow Minister, the hon. Member for Ellesmere Port and Neston, he mentioned the voluntary sector and particular organisations that have done amazing work in the past year and a half. In fact, they do that work every year, and day in and day out, working hand in hand with the NHS. I put on the record my appreciation of the independent sector providers for what they have done during this pandemic to support the pandemic response.

The shadow Minister asked a very specific question about what activity had been undertaken, what money had been spent and what assessments had been made, including of value for money. I do not know whether I have written to him already, but a number of colleagues from across the House have written to me and I have set out, in broad terms, the number of patient episodes that have been provided by the independent sector. If he would like me to write to him in a similar vein, I am very happy to do so; my officials have heard that commitment and I will adhere to it. Regarding the broader point that he made about value for money, cost and how money has been spent, those details will be published later in the year in the usual way, when the accounts for the last year have been audited. They will be published; I make that commitment to him.

The shadow Minister raised a number of other specific issues and I will address one head-on before addressing the substance of the amendments. Essentially, he said that the NHS should be deemed the preferred provider by default almost, citing the words of Dr Chaand Nagpaul. Dr Nagpaul and I have our differences of opinion, shall I say, but he is an eminent clinician and performs a very important role, and I put on the record my respect for him and for the principles that he articulates on many occasions.

I believe that the key defining feature should be what delivers the best outcomes for patients, rather than simply having a default presumption. Now, that may well regularly be, as Dr Nagpaul asserted, the NHS. However, I think we should start from the presumption of what delivers the best services and the best outcomes for patients.

The shadow Minister asked—I think he asked this, but if it was the hon. Member for Bristol South I hope she can forgive me—what regime would apply to the Department. My understanding is that that would continue to be the Public Contract Regulations 2015 in the context of the Department itself. The hon. Member for Ellesmere Port and Neston suggested that in the next couple of years we would do the next reorganisation; I can reassure him that I am not necessarily sticking to the new Labour playbook of 1999, 2001, 2003—doing something almost every two years.

The hon. Gentleman’s broader point was about the involvement of private sector providers. He will be aware of this, because he knows his NHS and health history, but one of the key points came in 2004—the first time the then Government opened up clinical services to tendering by the private sector, in that case for out-of-hours services. Again, “any qualified provider” dates back to 2009, under the title “any willing provider”, as it then was. It was exactly the same scheme, and all that happened in 2012 was that the name was changed from “any willing” to “any qualified” provider; the scheme was brought in under the Government led by Prime Minister Brown.

Governments of all complexions have amended and changed the clinical regime to recognise that there is a role, as there always has been, for private and voluntary sector providers and, of course, for the NHS at the heart of it. None of that puts at risk a taxpayer-funded NHS that is free at the point of delivery. For the record, I reassure the hon. Gentleman, as he would expect me to, that in the context of trade deals the NHS is not for sale: it never has been, and it never will be.

Turning to the detail of the amendments, amendment 95 would change the scope of the regulation-making powers in this clause. Currently, these will govern the procurement of healthcare services for the purposes of the health service; this amendment would broaden the provision so that it extends to all services required by the health service.

The NHS procures many services, but has specifically asked us to introduce a new, tailored provider selection regime that would replace section 75 and enable it to arrange healthcare services in a more flexible manner and one that fosters integration and collaboration. The NHS has told us that the current competition and procurement rules, particularly the PCR 2015 rules, are not well suited to the way healthcare is arranged in the context of the services the NHS provides. They create barriers to integrating care, disrupt the development of stable collaborations and can cause protracted processes with wasteful legal and administration costs, while adding little value to patients or the taxpayer.

Regarding the hon. Gentleman’s specific question, I am afraid the individual costs over the years since 2012 would have been borne at a local systems level, so I suspect that they are not agglomerated together in a national figure. However, I understand his reasons for asking.

When NHS England consulted on the new provider selection regime earlier this year, it suggested specific key criteria to be used in decision making under the regime, tailored towards the effective arrangement and delivery of healthcare services. The proposed criteria include integration and collaboration, and that services should protect patient choice and focus on tackling inequalities. Having a power to introduce procurement measures specifically for healthcare services will enable procurement decisions to focus on such tailored criteria, and to create a regime that works best for the health service.

However, it is right that non-healthcare services—cleaning services, administrative services and others—should, and will, still fall under the PCR 2015 and, in future, the new Cabinet Office procurement regime, which is currently being considered. This will ensure that these services are still arranged in a way that continues to add the best value to the healthcare system.

We know there may be cases in which it is essential that a service is procured as part of a healthcare service contract—I think that was one of the hon. Gentleman’s points. It is for this reason that we have included the ability for regulations made under this power to include provision in relation to mixed procurements, where other goods and services are procured together with healthcare services.

We are working closely with the Cabinet Office and with stakeholders across the health service to ensure that the regulation of mixed procurements of healthcare and other services works effectively for the appropriate arrangement of healthcare services and for the arrangement of wider public services, with respect to their distinct characteristics. Should the hon. Gentleman wish to write to me and ask me to forward his letter to the Cabinet Office to ensure it is cognisant of his views, I am happy to do that.

Amendments 96 and 99 and new clause 12 in effect make statutory NHS providers and general practitioners the preferred provider of NHS-funded services, but our intention is not quite as rigid as what the hon. Gentleman would wish. As I have said, the vast majority of NHS care has and will continue to be provided by public sector organisations, but successive Governments of all political affiliations have allowed the NHS to commission services from the private and voluntary sector, to improve accessibility and experience for patients, to increase capacity swiftly or to introduce innovation.

It is the strong view not just of this Government but of the NHS that local commissioners are the best people to determine what services a local population needs. The best interests of patients, the taxpayer and the population, rather than dogma or ideology, should guide those decisions, and that is what this Bill aims to deliver. I know that the hon. Gentleman is certainly not dogmatic—he may be ideological, but he is certainly not dogmatic—so I hope he appreciates the sentiment behind that statement.

Amendment 99 would mean that a contract for the provision of healthcare services could not be awarded to a body other than a relevant body as defined in the clause unless a full formal competitive tendering process had been followed. This requirement would need to be set out in the regulations made under proposed new section 12ZB.

Amendment 96 would require that regulations include the power for ICBs to commission services provided by an NHS trust or foundation trust without retendering. Regulations would also need to require an ICB to conduct a public consultation and publish a business case where it wished to put out to competitive tender a service currently provided by an NHS provider for contracts over an agreed value. They would also need to require an assessment to be made of alternative ways of providing a service using NHS providers before a contract with a non-NHS provider were extended or renewed. It would require any procurement regulations to be based on the assumption that the NHS is the preferred provider. Regulations would also need to add a requirement on providers to pay and provide terms and conditions of employment to their staff that are at least in line with those of the NHS.

In addition, the amendment would require NHS England to publish a report on the proportion of contracts subject to the regulations made under the new power that are awarded to different types of providers, and would require both NHS England and ICBs to publish a plan for reducing private providers’ provision and increasing the capacity of NHS providers to provide those services. As the shadow Minister set out, it would require ICBs to publish in full bids received for contracts, contracts signed and reports of contract management.

By way of context, the NHS has told us that the current competition and procurement rules are not well suited to the way healthcare is arranged. That is why we are creating a new provider selection regime that provides greater flexibility, reduces bureaucracy on commissioners and providers alike, and reduces the need for competitive tendering where it adds limited or no value. I fear that the amendments would start reimposing a degree of that bureaucracy. The absence of competitive tender processes does not mean an absence of open, transparent and robust decision making. Our proposed new regime is designed to allow transparency, scrutiny and due diligence in decision making, but without all the barriers and limitations associated with running full tender exercises.

NHS England has laid out a series of reasons in its public consultation why competitive tendering may not be suitable in every case. We do recognise the value of competition in particular cases, but this is about introducing an element of greater flexibility, rather than rigidity. NHS England has proposed that, having considered a set of key criteria, the decision-making body may have reasonable grounds for choosing either to continue with the incumbent provider where it is doing a good job and the service is not changing, or alternatively, where the service is changing, of selecting one provider or group of providers or of course holding a competitive tendering process.

Structuring the new provider selection regime around such criteria will ensure that the factors taken into account by commissioners are those relevant to the health service, while still retaining flexibility in the types of provider from which commissioners can commission. Amendment 99 would mean that these regulations go further than the existing rules under the PCR 2015. Those regulations allow for an exception to competitive tendering where competition is absent for technical reasons, but this provision would not allow for that, nor for an exception in relation to a procurement for an extremely urgent case.

Transparency was a keen concern of the hon. Gentleman. Regulations and statutory guidance made under new clause 68 will set out rules to ensure transparency and scrutiny of decisions to award healthcare contracts under the new provider selection regime. The regulation-making powers specifically allow for the imposition of requirements for the purposes of ensuring transparency and fairness in arranging services, which will allow us to design a regime to ensure open, transparent and robust decision-making, including requiring decision-making bodies to keep records of the rationale for their decisions.

We do not consider it necessary to publish all bids received for contracts or the detailed content of all contracts. Doing so would have the potential to prejudice the commercial interests of the parties involved, including NHS commissioners and providers as well as those bidding.

We consider these amendments to be unnecessary. Indeed, we fear that they might actively undermine what the NHS is telling us it needs from the private selection regime to secure high-quality, safe and good-value services. Therefore, I hope that I might tempt the hon. Members not to press their amendment to a vote. I have a feeling, though, that we might face a Division on it in the near future.

Let me move briefly to the clause 68 stand part debate. The clause inserts a new section, 12ZB, into the National Health Service Act 2006.

[The Chair]

I think we want to stick with the amendments.

[Edward Argar]

And then we will discuss clause 68 stand part separately?

[The Chair]

Yes.

[Edward Argar]

In that case, I nudge the Opposition to consider withdrawing their amendment, but I may be unsuccessful.

--- Later in debate ---

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

I will be brief because we covered key aspects of clause 68 in debates on the amendments. The clause inserts proposed new section 12ZB into the NHS Act 2006. Section 12ZB allows the Secretary of State to make regulations setting out the regulatory framework for the procurement of healthcare services, to better meet the needs of the NHS.

Section 12ZB provides further information about the content of those regulations. They may contain provision in relation to the objectives of procurement, and they may contain provisions ensuring transparency, fairness and effective management of conflicts of interest, as well as provision for the purpose of verifying compliance with the regime. The new section also allows for NHS England to publish guidance about compliance with the new procurement requirements to which relevant authorities, as defined in the section, must have regard.

The NHS has sent us a clear message that the current regime for arranging healthcare services is not working. It is confusing, overly bureaucratic and does not fully support the integration and efficient arrangement of services and collaboration in the best interest of patients, which, of course, run through the Bill like a golden thread. Through the clause, we will develop a new provider selection regime for the NHS and public health—a bespoke NHS regime that will give the NHS and local government more discretion over how they arrange healthcare services. Informed by the consultation run by NHS England earlier this year, it will aim to enable collaboration and collective decision-making—recognising that competition is not the only way of driving service improvement. It will aim to reduce bureaucracy on commissioners and providers alike, and to remove the need for competitive tendering where it adds limited or no value.

We recognise that in many cases competition can be beneficial for procurement. Where a competitive tender is the best way for an NHS commissioning body to secure value and quality in its healthcare provision, it will be used. However, it will no longer be the default that contracts in the NHS are automatically put out to tender. All decisions about provider selection will continue to be made in an open and transparent way, considering key criteria and applying them to decision making, in the best interests of patients and the taxpayer. I commend the clause to the Committee.

[Justin Madders]

I will not repeat all my comments from earlier, to save the Committee’s time. I have two remaining specific questions, which I hope the Minister can address. The clause says that regulations “may” be produced. Can he state for the record that there will be regulations? Can he also give us some indication of when they are likely to be made and when they are likely to take effect?

[Edward Argar]

I can reassure the hon. Gentleman that “may” is the technical language used in drafting such legislation, but we intend that they will be made. I am afraid I will disappoint him on the second part of his question, because I would not presume to say exactly when; that will be down to the passage of this legislation and then the usual wait and the discussions through the usual channels on securing an appropriate slot for the regulations. I hope I have given the hon. Gentleman a modicum of reassurance.

Question put and agreed to.

Clause 68 accordingly ordered to stand part of the Bill.

Clause 69

Procurement and patient choice: consequential amendments etc

[Justin Madders]

I beg to move amendment 97, in clause 69, page 62, line 26, at end insert—

“(1A) In the National Health Service Act 2006, in section 272(6), after paragraph (za), insert the following paragraph—

‘(zaa) regulations under section 12ZB,’”.

This amendment would require a draft of procurement regulations under new section 12ZB of the National Health Service Act (inserted by clause 68) to be laid before, and subject to approval by resolution of, each House of Parliament.

I will not detain the Committee long on this amendment. Following on neatly from our previous discussion, it requires that the regulations, which I am now assured will be produced, are subject to a resolution of approval by both Houses. I do enjoy spending time in Delegated Legislation Committees with the Minister, and I hope we will be able to do that again as a result of this amendment’s being accepted.

[Edward Argar]

I am, as ever, grateful to the hon. Gentleman. The amendment would require a draft of procurement regulations under new section 12ZB of the National Health Service Act to be laid before, and subject to approval by resolution of, each House of Parliament. As set out in our delegated powers memorandum, the powers created by clause 68 amend the NHS Act 2006. In line with the vast majority of regulations made under that Act, these powers will be subject to the negative procedure in section 272(4) of that Act.

As demonstrated by the passage of the Health and Social Care Act 2012, there is significant parliamentary interest, both in this House and the other place, in the rules for determining how healthcare services are arranged. However, it is vital that we strike the right balance between democratic scrutiny and operational flexibility. The negative procedure provides that balance, ensuring transparency and scrutiny, while also providing sufficient flexibility to ensure that the regulations continue to drive high-quality services and value for money.

We have consulted extensively on the proposals for these regulations to ensure that we are delivering the flexibility, transparency and integrated approach that the NHS has asked for. The engagement exercise undertaken in early 2019 collected views from across the health sector, and the proposals put forward by NHS England around procurement gained widespread support, with 79% of respondents agreeing or strongly agreeing with the proposals.

Earlier this year NHS England consulted on further detail of the proposed regime that should apply when healthcare services are arranged in future, following removal of the current requirements. NHS England received a range of responses from NHS national and representative bodies. In addition to written feedback, it met NHS colleagues and external stakeholders. We have been and continue to be as transparent as possible in our approach to these proposals. Therefore, I suggest that the hon. Gentleman amendment’s is unnecessary.

[Justin Madders]

In the light of the Minister’s comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

I will be very brief. The clause will remove the specific healthcare procurement rules that currently apply to NHS commissioners when arranging clinical healthcare services. Specifically, it will repeal sections 75 to 78 and schedule 9 to the Health and Social Care Act 2012 and revoke the National Health Service (Procurement, Patient Choice and Competition) (No.2) Regulations 2013. It also makes other minor, consequential amendments in relation to these changes and the introduction of the power to make a new provider selection regime for procurement of healthcare services under clause 68.

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[The Chair]

With this it will be convenient to discuss the following:

Clauses 71 and 72 stand part.

That schedule 12 be the Twelfth schedule to the Bill.

Clause 73 stand part.

[Edward Argar]

I will try to be as brief as I can, while giving the Committee the information it wishes to have.

This package of measures is aimed at promoting collaboration in the NHS, reflecting a shift towards integration between commissioners, providers and other partners as a way of improving the healthcare people receive. Clause 70 allows for the removal of Monitor and the Competition and Markets Authority’s duties to co-operate in the exercise of their functions as concurrent competition regulators. Instead, they are replaced with a duty on NHS England to share regulatory information with, and provide assistance to, the CMA where the CMA requires it to exercise its functions.

Clause 71 removes the Competition and Markets Authority’s role in reviewing mergers solely involving NHS foundation trusts, NHS trusts or a combination of both. The CMA has led a number of investigations into NHS provider mergers or acquisitions in recent years. Although it has approved all but one merger, the investigations have been costly and time-consuming for the organisations involved.

We recognise the CMA’s important role in investigating alleged infringements of competition law and particular markets if it sees issues for consumers with reducing competition. However, as has been alluded to, the NHS is not a true market, and it has become clear that the CMA is not the right body to review NHS mergers. Instead, NHS England will continue to review all NHS provider mergers to ensure they have clear benefits for patients and the taxpayer. The CMA will retain its merger control powers in relation to the private healthcare and pharmaceutical industries, where competition plays a greater role. The NHS should be able to make decisions about provider mergers itself. Without this clause, NHS provider mergers will still be subject to costly, time-consuming investigations.

Building on the experience of the last few years, the Bill will clarify the central role of collaboration in driving performance and quality in the system. As part of that, under clause 72, we are looking to remove Monitor’s role as a concurrent competition regulator. However, although we are removing Monitor’s competition regulation functions, it is right that NHS England should continue to share regulatory information with and provide assistance to the CMA so that the CMA can carry out its functions. The clause will ensure that the CMA has the information and assistance it needs to do that in respect of its competition functions to prevent anti-competitive behaviour in the wider sector. That will ensure that the CMA can continue to make sure that the healthcare sector works for consumers, patients and the taxpayer.

The clause removes Monitor’s competition functions, which it exercises concurrently with the CMA. It also inserts schedule 12, which makes consequential amendments in relation to the removal of Monitor’s competition functions. The Health and Social Care Act 2012 allowed Monitor to exercise some of the functions that the CMA holds under the Competition Act 1998 and the Enterprise Act 2002, but solely in relation to the provision of healthcare services in England. Those included powers to take action on anti-competitive agreements and conduct in the sector and powers in relation to mergers in the sector.

The Bill will enhance collaboration between different NHS commissioners, providers and local authorities. We therefore expect that NHS England’s primary role, following its merger with Monitor, will be to support commissioners and providers to deliver safe, effective and efficient care, rather than to act as an economic or competition regulator.

While competition will continue to play an important role, including through patient choice and the new provider selection regime, it is right that the duties and role of the merged NHS England give greater weight to fostering collaboration and integration rather than enforcing competition, and that competition regulation is left to the CMA. The concurrent competition duties and functions of Monitor should therefore be removed. Schedule 12, inserted by clause 72, makes the necessary consequential amendments to take account of the removal of Monitor’s competition functions. The clause allows NHS England to work collaboratively with organisations to deliver the best possible services to patients.

Finally, clause 73 removes the CMA’s role in reviewing contested licence conditions. The licence conditions have not changed substantially since they were first agreed in 2013. However, NHS England and NHS Improvement’s oversight of the NHS has changed significantly. Their primary role is to support the delivery of safe, efficient and effective care. The merged NHS England, as provided for under this Bill, should be able to set its own licence conditions for providers and regulate providers of NHS services without needing to refer matters to an external competition regulator such as the CMA.

NHS England will remain under duties to consult with local organisations on revised licence conditions. That, alongside the removal of the CMA’s review functions, ensures that any decisions remain in the interests of the NHS as a whole. In addition, NHS England’s accountability arrangements to the Secretary of State and Parliament offer a further safeguard against disproportionate changes to licence conditions. Sufficient safeguards, such as those that I have mentioned, ensure that providers have input into any proposed changes, without the need for oversight from a third party.

We therefore believe that these measures deliver the changes that the NHS has been asking for to help it deliver the long-term plan and recover from the pandemic. I therefore commend them to the Committee.

[Justin Madders]

I will not detain the Committee long, but perhaps we need a minute to pause, because, as my hon. Friend the Member for Bristol South said on Tuesday, this marks the end of an era. Monitor is gone, competition is no more, and procurement is gone—I think—and become bespoke, to be determined in more detail in the regulations. Perhaps even more stark is the fact that ICBs now have providers on the board, having jettisoned the GPs, and that NHS England is now both an actual commissioner and a systems manager for both commissioners and providers. It feels like we are going back to the future.

As the Minister said, these clauses end the role of the Competition and Markets Authority. This is the final nail; it is perhaps the final recognition that the wild promises made about the 2012 Act have failed to achieve what they said they would. The expectations that Lansley set out back then have failed to produce any desirable results. I do not know whether Government Members wish to shed a tear at this point for the end of these measures, but, for Opposition Members, health is not a commodity; it is a right. Health is not a product, and the NHS is not—and never can be—a market.

As we see the end of the ideological attempt to create a market, Opposition Members cheer the bidding into history of this failed experiment, which should never have occurred. Turning to the actual substance of the clauses, as the Minister set out, they do what is necessary to achieve that aim.

Question put and agreed to. 

Clause 70 accordingly ordered to stand part of the Bill. 

Clauses 71 and 72 ordered to stand part of the Bill.

Schedule 12 agreed to.

Clause 73 ordered to stand part of the Bill.

Clause 74

Special Health Authorities: removal of 3 year limit

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clauses 75 and 76 stand part.

[Edward Argar]

Clauses 74, 75 and 76 repeal the three-year time limit on special health authorities, restate the requirements for special health authorities and NHS trusts to keep proper accounts and records, and repeal the powers of the Secretary of State to make a property or staff transfer scheme.

Together, along with the provisions in the Bill to merge NHS England and NHS Improvement and the powers we will discuss in part 3 of the Bill in a few weeks’ time, these technical changes will help ensure that we have flexibility in the arm’s length body landscape to support the delivery of a world-class healthcare system.

Clause 74 repeals legislative provisions that currently impose a three-year time limit on any newly established special health authority. When the three-year time limit was initially imposed under the Health and Social Care Act 2012, it was envisaged that any future special health authority would have time-limited functions and therefore be temporary in nature. This has not proved to be the case.

The NHS Counter Fraud Authority is the only special health authority created since the time limit was introduced. The Government consider it unnecessary for the NHS Counter Fraud Authority, or any other special health authorities that are established in future, to undergo the process of extending their lifespan every three years. As well as repealing the time limit, the clause sets out changes to the statutory instrument used to create the NHS Counter Fraud Authority, to reflect the fact that there is no longer an abolition date.

Clause 75 simply tidies up provisions in the current legislation in respect of requirements to keep accounts. It restates the requirements for special health authorities and NHS trusts to keep proper accounts and records. It also restates a number of requirements in relation to the auditing and publication of accounts. This clause does not create any change in existing arrangements.

Finally, clause 76 abolishes powers taken in the Health and Social Care Act 2012 to transfer property, rights and liabilities from bodies abolished or modified by that Act. Those powers are now spent, so we are removing the clause to ensure neatness of the statute book, especially as a number of bodies in the 2012 Act are being abolished by this Bill. However, we have retained the ability to make transfer schemes in respect of previously transferred property and rights.

The Bill allows property, rights and liabilities that have been transferred previously under section 300(1), to subsequently be transferred to a Minister of the Crown, NHS England, an integrated care board, an NHS trust or foundation trust, or a qualifying company. That will ensure clarity that rights, property and liabilities are properly allocated and maintained, and not lost to the NHS.

These technical changes will support the wider intentions of the Bill to have a flexible and responsive national architecture for managing the healthcare system. I therefore propose that these clauses stand part of the Bill.

[Justin Madders]

I will not detain the Committee for long. We are enjoying the Minister’s conversion as regards the folly of the 2012 Act, this being another example of things not turning out as originally envisaged. As he said, these clauses are necessary and we will not oppose them.

Question put and agreed to.

Clause 74 accordingly ordered to stand part of the Bill.

Clauses 75 and 76 ordered to stand part of the Bill.

Clause 77

Abolition of Local Education and Training Boards

Question proposed, That the clause stand part of the Bill.

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[Edward Argar]

Clause 77 is a relatively short clause, which seeks the abolition of local education and training boards—these committees of Health Education England will, by the provisions of the clause, be abolished. In consequence, as set out in the legislation, we amend the Care Act 2014 to reflect this abolition. This is a substantive provision, but it is of a technical nature, to reflect the evolution of the provider landscape. I propose to make no further comments at this stage, but I suspect the shadow Minister may wish me to respond.

[Justin Madders]

I have a couple of questions for the Minister. We would more accurately describe this as a reflection of the reality on the ground, and how local education and training boards have not really been the vehicle for change that they might have been. Their original rationale was to

“build a system that is responsive to the needs of employers, the public and the service at local level.”

It seems odd that this is happening, given that the thrust of the rest of the Bill is to increase local autonomy, but I understand that the regional people boards will be taking up the majority of the slack. It raises the question of how exactly the undoubted variation in recruitment and training needs within ICBs and regions will be addressed, and how ICBs will interact. I would like to hear from the Minister about that. There is also a concern from the British Medical Association that this could mean the loss of dedicated local support systems for GP trainees, and there is some need for clarity on how that function will be met.

[Edward Argar]

The shadow Minister is right in surmising that once LETBs are abolished, their functions will be discharged by HEE directly in the manner he has set out. On his specific questions, HEE will continue to have responsibility for workforce planning and will engage with regional people boards, integrated care boards and the regional directorates of NHS England to carry out this function. Those responsibilities will be set out in a report that we will publish describing the system for assessing and meeting the workforce needs of the health service in England, as debated in relation to clause 33—to which we may yet return, either on the Floor of the House or in the other place.

We are not removing local or regional workforce planning from the statute, as the hon. Gentleman suggested; HEE will continue to have responsibility for that workforce planning. The LETBs were sub-committees of HEE and reported to the HEE board in any case, so clause 77 just removes some of the rigidity in respect of how HEE had to operate. As is the theme throughout this legislation, this clause seeks to give a greater degree of flexibility and permissiveness to allow the system to adapt to changing needs. On that basis, I ask that it stand part of the Bill.

Question put and agreed to.

Clause 77 accordingly ordered to stand part of the Bill.

Clause 78

Hospital patients with care and support needs: repeals etc

[Alex Norris]

I beg to move amendment 98, page 68, line 22, at end insert—

“(2A) A social care needs assessment must be carried out by the relevant local authority before a patient is discharged from hospital or within 2 weeks of the date of discharge.

(2B) Each integrated care board must agree with all relevant local authorities the process to apply for social care needs assessment in hospital or after discharge, including reporting on any failures to complete required assessments within the required time and any remedies or penalties that would apply in such cases.

(2C) Each integrated care board must ensure that—

(a) arrangements made for the discharge of any patient without a relevant social care assessment are made with due regard to the care needs and welfare of the patient, and

(b) the additional costs borne by a local authority in caring for a patient whilst carrying out social care needs assessments after a patient has been discharged are met in full.

(2D) The Secretary of State must publish an annual report on the effectiveness of assessment of social care needs after hospital discharge, including a figure of how many patients are readmitted within 28 days.”

Clause 78 is the final clause of part 1, but it is an important one, and we hope that the amendment improves it. I will be interested to hear the Minister’s views. This all relates to discharge to assess, where patients are discharged from hospital into the community setting and have their care needs assessed at home, or wherever they have gone from hospital, rather than waiting to be discharged from hospital and having to stay there longer than they clinically need to before the assessment takes place. Importantly, this is something that has been trialled during the pandemic. There is a lot of vulnerability at that point, and this process will matter to a lot of people. It is right that we give it proper consideration, and I think we ought to tighten it up.

I will confess that I have gone back and forth on the principle of discharge to assess, and I have had this conversation with colleagues in recent months. When the Bill was published, my first instinct on this clause, as former local authority social care lead, was a negative one. I felt—I still have this lingering doubt—that there was a real risk of patients essentially being parked in the community to the detriment of their health, with the obligation and cost put on local authorities. Of course, in many cases, some of that will be borne by continued healthcare funding. However, in the end that will become a local authority responsibility for each individual, and there will be a significant risk of them being readmitted shortly afterwards.

Local authorities are already scandalously underfunded to meet the social care needs of their population. Adding some of the most vulnerable people to that list and to the quantum of need that needs to be met will add greater risk, so I have serious reservations. This is not a conceptual debate, and that makes life easier; we have evidence to work with. Through no one’s planning, we have essentially run a de facto pilot scheme during the pandemic, so we know of what we talk. We have a sense of what is going on on the ground, and clause 78 will put it on a permanent footing.

On matters relating to local government, I always fall back on my former colleagues in local government. Their views on this are very clear, and I have had this conversation with them a lot. It always ends up with me saying, “Are you sure?” However, we should not miss their evidence. They say:

“The repeal of legislation related to delayed discharges is good news. This paves the way for the continuation of discharge arrangements which have worked well during the pandemic. The emerging evidence is that going home straight from hospital is what people want.”

I can certainly understand that. They also want greater clarity on the future of this de facto pilot from next month, in the interregnum between when the Bill becomes law and when the funding runs out next month. That is a very reasonable request, and I hope the Minister can respond. The strength of feeling from local government colleagues—our experts by experience—cannot be ignored, and that is why we are seeking to improve rather than prevent this innovation. It does need improving.

Important concerns were raised in the written evidence from Carers UK, which says:

“Under the CC (Delayed Discharges, etc.) Act 2003 a carer’s assessment can be requested and if so, a decision must be made about what services need to be provided to the carer, whether by social services or a consideration by the NHS, to ensure that the ‘patient is safe to discharge’.”

That will be repealed by clause 78. However, they will still be able to fall back on the Care Act 2014, so the carer will get a carer’s assessment under that if they wish. Presumably, that will now take place post-discharge. That is quite a significant change. A great deal of people will become family carers overnight. They might not be conscious that that will happen, but before anybody has made any assessment of their capability to do so, they will quickly find themselves operating as family carers for very vulnerable people immediately post discharge. By the time they get the carer’s assessment, they may well have been struggling to cope for a significant period of time. That could have some dreadful consequences, which is why amendment 98 states that there must be an assessment within two weeks. Obviously, we would want it much more quickly than that, but two weeks is a bare minimum backstop.

I do not think that this is catastrophising. According to research that Carers UK submitted, 26% of carers had not been consulted about discharge before the discharge of the person they care for, and a third were consulted only at the last minute. I do not think that is setting families up to succeed. If the Minister thinks that that will get better as a result of these innovations, we would welcome that, but I would like to understand why he thinks that might be the case and how the situation will look better. Carers UK recommends putting greater responsibility on the integrated care board to have oversight of how discharge to assess is working for the individuals in their care and across their footprint more generally. That is what we have sought to recommend with amendment 98.

The concerns of Carers UK are echoed by the British Association of Social Workers, and social workers, like family carers, have first-hand experience of the trial. The association worries about there being a move away from the fundamental point that the wellbeing principle is uppermost, and its evidence is concerning:

“A survey of Social Workers conducted in December 2020 involved in hospital discharges highlighted that the vital contribution of social work in the multidisciplinary team was being marginalised by the medicalisation of people’s journeys out of hospital. Most importantly, social workers felt that the voice of the individual was lost”.

It is quite significant to say not only that skilled staff would not be able to play their normal role in the process but that the individual’s voice would not be there.

The worst manifestation of the provisions in the clause would be for it to be in the system’s interest to move people out of hospital, because that would then be the priority. We need to make sure that that is not the case. The British Association of Social Workers would rather that the clause was not in the Bill at all, but we have not gone that far and have sought to improve it by putting a maximum two-week wait time in the Bill. That would be prudent. The amendment would also centre the integrated care board in the management and oversight of the process. If the integrated care board is to act as a system leader and integrator, surely such a system process—this is the ultimate system process—that touches on the borders between institutions ought to be within its purview. Otherwise, where will the oversight come from? Who will hold the different parts of the system to account?

I hope that the Minister addresses the concerns I have expressed, because this is an important and, in the plainest-speaking sense, risky decision. There are ways to mitigate that and we have suggested a good one in the amendment. I am keen to hear the Minister reflect on that.

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Of course, if those people stay in hospital, they get some sort of support and care, and throughout the winter, families will not support the discharge of their loved ones. That is a difficult place to be. I have seen, as we all have, situations in which the safest thing for a person to do is to remain in hospital, even if they do not need acute care. However, that is no place for anyone to be if they do not need such care, and we would not want to get to that place. If the Minister does not accept the amendment, he would be wise to use the recess, before the Bill goes to the other place, to put in greater provisions in this area. If we all accept that moving out of hospital is a good thing, many more safeguards must be put in place to support families who find themselves becoming carers overnight, as well as people who have nobody to care for them.

[Edward Argar]

I am grateful to the hon. Member for Nottingham North and the hon. Member for Bristol South. I knew that the hon. Member for Nottingham North and I had a shared background in local government, but I did not realise that it may have covered the same portfolio. I share his view on two points in particular. First, we have had the opportunity, of necessity, during the pandemic to see how the approach might work in practice. My instinctive reaction is that I can see how it works from the perspective of the system and the health service but, with my old council hat on, I would say, “How does it work from our perspective?” What we have seen throughout the pandemic has not been without its challenges, but it has broadly worked.

Like the hon. Gentleman, I am always happy to speak to my local councillors, who will not hold back in telling me what they think is working and what is not. However, I do think that this is the right approach when implemented properly. We know that if people stay in hospital longer than is medically necessary, it affects not only the system but individuals’ physical and mental health. It is therefore right that we get people home or to an appropriate interim place where they can be cared for and continue their rehabilitation in the right setting.

The amendment would introduce a new requirement for local authorities to carry out social needs assessments either before a patient has left hospital or within two weeks of discharge. Integrated care boards would have to agree the process with local authorities, including any penalties when local authorities fail to assess people within two weeks. It would also introduce a requirement for an annual report to be produced

“on the effectiveness of assessment of social care needs”

post discharge. As I hope I alluded to in my opening remarks, I entirely appreciate the intention of the amendment—all patients must receive the care that they need on being discharged—and understand where the hon. Gentleman and his colleagues are coming from, but I am not sure that it is the best way to advance that objective.

Existing discharge guidance states that health and social care systems must determine the most appropriate discharge pathway for each person to ensure that they receive the interim care and support they need, pending full assessment. Legislation already requires the NHS to meet people’s health needs, and local authorities must still assess and meet people’s adult social care needs. We are co-producing new statutory guidance on how the existing statutory duty for health and social care partners to co-operate will apply in relation to discharge. By way of reassurance, where local areas follow the discharge to assess model, unpaid carers are still entitled to a carer’s assessment where they are not able to care or need help. A carer’s assessment should be undertaken before caring responsibilities begin for a new caring duty or if there are increased care needs.

As all colleagues who have been involved in local government or the NHS will know, the devil is in the implementation rather than the detail in this case. We must ensure that the system works. The entitlement is there, and we must ensure that that pulls through into practical realities. The hon. Gentleman will be aware that the discharge guidance also states:

“Before discharge a determination must be made about the status and views of any carers who provide care, including that they are willing and able to do so.”

Evidence broadly suggests that when long-term needs assessments are carried out at the point of optimum recovery, that leads to a more accurate evaluation of needs and more appropriate care packages. Many people discharged from hospital require longer than two weeks to recover; we fear that requiring social care needs assessments to be completed within two weeks of discharge would create an extra layer of bureaucracy. In practical terms, it would not necessarily function in people’s best interests.

Our extensive engagement with health and social care partners has highlighted how current bureaucratic discharge requirements, including penalties for local authorities, can damage relationships and create discharge delays, and they do not support collaborative working across sectors. We fear that creating a new penalty for local authorities for failing to carry out assessments would again risk creating a tension within the system, which would go against the spirit of the integrated working that the Bill seeks to support and the good co-operation that I would argue normally and generally occurs. Our existing clause creates freedom for local areas to develop discharge arrangements that best meet their local needs.

I fully appreciate the need for accountability, which is why we are working with NHS England to publish hospital discharge data from 2022 onwards that will include data on the destination and discharge pathways being used to support people after they leave hospital.

For those reasons, I gently encourage the hon. Gentleman to consider not pressing his amendment to a Division.

[Alex Norris]

I am happy to say that I will consider that request; obviously, I have heard what the Minister has said. I was slightly heartened to hear the point about guidance. I suspect that if we do not see something exactly like what I propose in the amendment, we will see something very similar to it being put in the guidance.

However, we do not have that guidance at this point, which leaves us with two alternatives: either we press the amendment to a Division or we do not. If we do not, we will not be opposing the stand part debate, which means that we might create the impression that we have waved through something that we are concerned is too loosely defined. For that reason, we have to press the amendment to a Division.

Question put, That the amendment be made.

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Question proposed, That the clause stand part of the Bill.

[Edward Argar]

I will endeavour to be relatively brisk; I think that we have covered some of the issues pertaining to the clause in our discussion of the hon. Gentleman’s amendment.

The clause repeals legislative barriers to the discharge to assess model, in order to better align legislation with current best practice. During the pandemic, local authorities and the NHS developed innovative ways to support better discharge from hospital to community care. The clause is crucial in enabling local areas to build on those partnerships to adopt the discharge approach that best meets local needs, including the discharge to assess model.

The clause will enable the safe and timely discharge of people to a familiar environment where possible. Individuals receive recovery and re-enablement support, and are assessed at the point of optimum recovery. This will enable a more accurate evaluation of their long-term care and support needs. The provision does not change existing legal obligations on NHS bodies to meet their local population’s health needs, and local authorities are still required to assess and meet people’s needs for adult social care.

In addition to those responsibilities, we are co-producing discharge guidance with health and social care partners, setting out how the existing statutory duty in the NHS Act 2006, which requires health and social care partners to co-operate, will apply to discharge. Our guidance will be clear that no one should fall through the gaps so that people receive the right care in the right place at the right time. Discharge to assess will not change the thresholds of eligibility for continuing healthcare—CHC—or support through the Care Act 2014. The clause includes consequential amendments to other pieces of legislation. Those are needed to remove references to pieces of legislation that we are repealing with clause 78 and to tidy up the statute book.

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[Edward Argar]

I concur with the sentiments that the hon. Gentleman has expressed. It is absolutely right not only to have the right model in place but that that model moves swiftly and effectively to provide the services required.

Question put and agreed to.

Clause 78 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Steve Double.)

Health and Care Bill (Thirteenth sitting)

Edward Argar Excerpts

Committee stage
Tuesday 19th October 2021 Public Bill Committees

[The Chair]

Before we start, I have a few notices. Welcome to Committee Room 14. Please stand to catch my eye because this is such a long room, although if you are doing anything naughty at the back I will see it. I should say that today is my birthday, but wishing me a happy birthday will get you no advantages. Electronic devices should be put on silent mode. No food or drinks, except water, are permitted during the sitting.

The House encourages Members to wear masks when they are not speaking and to give one another space when seated and when entering and leaving the room. Thankfully, in this Committee Room that is easy to do. Hansard colleagues would be grateful if Members could email their speaking notes to [e-mail].

Clause 79

Information Standards

[The Minister for Health (Edward Argar)]

I beg to move amendment 117, in clause 79, page 69, line 15, leave out “services” and insert “care”.

This amendment has the effect that information standards may be set for public bodies that exercise functions in connection with the provision of any health care in England, and not simply NHS services.

[The Chair]

With this it will be convenient to discuss the following:

Government amendments 118 to 121.

Clause stand part.

[Edward Argar]

It is a pleasure to serve under your chairmanship, Mr Bone. As a member of the Government, I am well aware that seeking to curry favour with you in the Chair is a futile task, but none the less I wish you a happy birthday.

The amendments ensure that the drafting of the clauses covers all healthcare, whether delivered by public bodies or by the independent sector on behalf of the NHS or not, and that the relevant persons are captured by the requirement to comply with information standards. Those are matters of technical detail, and ensure that the changes made by clause 79 are coherent and consistent.

Amendment 117 makes minor changes so that information standards can apply to public bodies that exercise functions in connection with the provision of healthcare in England. It ensures that information standards can be applied to public bodies, even if the healthcare is not provided as part of the NHS. Similarly, amendment 118 ensures that information standards can apply in the processing of non-NHS and NHS healthcare information.

Amendments 119, 120 and 121 make consequential changes as a result of the previous amendments. Without those changes, there could be uncertainty about whether information standards can be applied to healthcare information generated outside the NHS. Without the amendments, we might not be able to ensure that data relating to NHS services—such as data about services provided in private patient units or by independent sector providers—flows through the system in a standardised way so that it is always meaningful and easy to understand for any recipient or user.

Clause 79 amends the Health and Social Care Act 2012. It allows the publication of mandatory information standards relating to the processing of information, including its transfer, collection and storage. Health and adult social care providers must currently have regard to information standards, but the clause would require providers to comply with them. The clause allows for the application of mandatory information standards to private providers as well. It requires regulations to be made about procedures for creating information standards. The clause also includes a power to require information from providers for the purpose of monitoring compliance with information standards.

The measures will help ensure that information flows through the system in a standardised way so that it is easily accessible and useful, and they will help to ensure the security of that information when it is processed. Given that publicly funded providers are already required to have regard to information standards, the clause will cause minimal disruption to compliant providers but will enhance the Department’s ability, on behalf of the public, to deal effectively with cases of non-compliance.

By applying information standards to private providers, the clause aims to improve the experience of patients who move between publicly and privately funded services by their own choice, such as individuals who choose elective surgery by a private provider. It does that by enabling the setting of standards that encourage the frictionless movement of information between those providers, with the aim of supporting timely and appropriate patient care decisions.

We consider the clause a crucial enabler for the creation in its broadest sense of a modern heath and care service whose systems are integrated and responsive to the needs of patients and users. I commend it to the Committee.

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to resume proceedings on the Bill with you in the Chair, Mr Bone. I would extend birthday greetings to you, but I know that Tom Brady and the Tampa Bay Buccaneers are already giving you all the joy that you need at this time of the year.

[Alex Norris]

I thought that might get more traction with you.

I also take the opportunity on behalf of Opposition Members to pass our sincere condolences to Government Members and to pay tribute to our friend Sir David Amess. He was a wonderful man: funny, kind and caring. I say that now because my final conversation with him was about the Bill, which precluded me from joining him on a trip. He commended me on my diligence but also cautioned me not to work too hard. I will always remember that; it was classic David.

As the Minister said, we have reached the data part of the Bill. It is important for everything we talked about in part 1, because all the new cultures that we seek to foster will fall over if the data does not work and, as he said, flow freely back and forth between organisations. At the end of the day, ensuring that data can port between different organisations is our problem to solve, not that of the patient or the individual. Therefore, if we are to have properly joined-up care, it is vital that those who provide care have a full sense of who they are caring for and what is needed.

I will not cover the Opposition’s really good amendment to the next clause, which would improve it further, until we get to it. In that spirit, we do not intend to divide the Committee on this group of amendments or on the clause more generally, but I have a couple of points to address, which I hope the Minister might come to in his summing up.

On the clause in general, the Opposition support putting the entire health and care system on the same footing for information standards. As we heard in oral evidence, one of the major blockers is the myriad data systems used across the health and care landscape, many of which cannot talk to each other. When I was an adult services portfolio holder in my local council, I saw how hard it was sometimes even for council systems to talk to each other—I do not know whether that was remarkable or inevitable—never mind systems across different organisations and, in this case, the public, private, and community and voluntary sectors. That is a real challenge. I do not think we can remove that completely—systems may look different because of their different purposes—but there must be some attempt to standardise.

The Opposition do not oppose the clause, but proposed new section 6B in subsection 2(c) allows organisations to opt out—we might want organisations to be able to do that in some circumstances—and proposed new section 6C provides that regulations will cover when that is allowable. However, it is hard to know whether the clause will work until we have seen whether the regulations are strong enough and set a high enough bar on opting out. Will the Minister confirm that the measure allowing for opting out will be very much exceptional and that we will not see any nonsense about commercial confidentiality? We want data to flow across sectors, and that confidentiality has traditionally been one of the barriers to that.

Let me turn to Government amendments 117 and 118, which will expand the scope of the organisations covered. That is good. If we are to share data between social care and more traditional healthcare services, that includes a big landscape of non-NHS providers and perhaps even non-local authority providers, and it is right that information standards should be aligned. There must be a common basis on which to build. The Minister said that in general most organisations are probably already in that space and paying the due regard that they need to, but I fear that these things will be easier in concept than in execution. I am keen to learn what assessment the Minister and his officials have made of how ready the disparate providers in this landscape are to meet these new requirements, whether he thinks there will be a transition period, and whether providers will be helped to do this. Otherwise, the implementation of this strong concept in the Bill will not work. I hope the Minister can address that.

[Edward Argar]

May I put on record my gratitude to the hon. Gentleman for his kind words about our late colleague? I suspect that the Health team and the shadow Health team will also speak of him in oral questions in the Chamber in a little while. The hon. Gentleman’s anecdote was all too typical of Sir David and his approach to these things. I think the last time I spoke to Sir David was at our party conference; I had to do something on the platform, and he seemed mildly bemused by the fact that I was rushing off to have my make-up done before I went before the cameras. He then insisted on posing for a photograph with me. It was typical of him. We all miss him terribly in this place, as of course, most importantly, will his wife.

I am also grateful to the hon. Gentleman for his support, in broad terms, for clause 79 and the Government amendments. He is absolutely right about the importance of data flowing freely and safely for the benefit of patients. That is why the clause strengthens the wording of the Health and Social Care Act 2012, so that it says “must…have regard to” and “must…comply with”.

The hon. Gentleman asked a number of questions. First, he talked about the option of opting out from regulations. I can offer him reassurance on that; yes, I hope that its use would be exceptional, rather than the rule. Our assessment is that there is already widespread compliance with what we are seeking to do here, but as he rightly says, we have to make sure that we have as robust a framework as possible, because it is up to us to make this work for the patient, rather than their having to work their way around a challenging framework.

The hon. Gentleman’s final point was about the burden of execution. He is absolutely right; as we all know in this place, and from our previous careers in local government—we talk about this a lot—something can look immaculately thought-through and put together on paper, but when we hit the reality of practical implementation, there can be significant challenges. It is not our assessment that there will be significant burdens or challenges with implementation; I go back to my point that our understanding is that the vast majority of these requirements are already adhered to. However, I am happy to keep the matter under review, and to make sure that we tweak the implementation if we need to, and are sensitive to the reality on the ground.

Let me put a bit more flesh on the bones on the subject of the waiver—the opt-out, as it were—as we may touch on the subject when we come to the hon. Gentleman’s later amendments and in subsequent clauses. The thinking behind the waiver is that there may be circumstances in which an organisation feels that it genuinely cannot meet a published information standard that applies to it. That is why there is the waiver power. It could apply to use it, but that request would have to be considered very carefully by officials before it was granted.

I hope that I have given the hon. Gentleman some reassurance, but he knows, I hope, that I seek to be pragmatic in much of what I do, and in the implementation of the provisions, I will seek to apply a degree of common-sense pragmatism.

Amendment 117 agreed to.

Amendments made: 118, in clause 79, page 69, line 21, at end insert—

“(aa) in subsection (3), for ‘services’ substitute ‘care’;”.

This amendment makes it clear that the Secretary of State’s power to set information standards extends to information concerning health care other than NHS care.

Amendment 119, in clause 79, page 70, line 2, at end insert—

“(d) in subsection (7)—

(i) at the appropriate place insert—

‘health care’ includes all forms of health care whether relating to physical or mental health and also includes procedures that are similar to forms of medical or surgical care but are not provided in connection with a medical condition;”;

(ii) omit the definition of ‘health services’.”

This amendment is consequential on Amendments 117 and 118.

Amendment 120, in clause 79, page 70, line 29, at end insert—

“(3A) In section 251C (continuity of information: interpretation)—

(a) after subsection (6) insert—

‘(6A) “Health services” means services which must or may be provided as part of the health service in England; and for that purpose “the health service” has the same meaning as in the National Health Service Act 2006 (see section 275(1) of that Act).’;

(b) for subsection (7) substitute—

‘(7) Adult social care’ and ‘public body’ have the same meaning as in section 250; and ‘processes’ and ‘processed’ are to be read in accordance with the meaning of ‘processing’ in that section.” —(Edward Argar.)

This amendment is consequential on Amendment 119.

Clause 79, as amended, ordered to stand part of the Bill.

Clause 80

Sharing anonymous health and social care information

[Alex Norris]

I beg to move amendment 109, in clause 80, page 71, line 15, at end insert—

“(4A) Before the power in subsection (1) may be exercised, and every five years thereafter, the Secretary of State must review, and lay before Parliament a report of that review, the possibility of combining the exercise of that power with the exercise of the powers under which—

(a) the General Practice Data for Planning and Research programme, and

(b) other data-sharing programmes

are run.”

I am moving this amendment in my name and those of my colleagues. There has been some disappointment that on part 1 of the Bill we have not been able to move the Government particularly far from what was originally presented in the Bill. As has been said a number of times, this Bill ought to drive integration in health and care services, but instead we really have a reorganisation Bill, with a promise from the Prime Minister to return with an integration White Paper in due course—when presumably some configuration of all of us will come back and do all this again. It is hard to think that we have not left some opportunities on the table, so I hope we can do better on parts 2 to 5 of the Bill, and I do not think there is a better place to start on that than amendment 109, which would significantly help the Government with an issue that they have been struggling with for more than a decade.

It is obligatory for Health Ministers and shadow Health Ministers to start by saying that data saves lives, and it does. It tells us what is happening in our communities and our country and how we may need to change services to meet the needs of populations. But if it is done right, it can also tell us what will happen in the future and what future needs we will have to meet. For the purposes of designing health and care services, that is golden information. It gives us the chance to get ahead of the curve, to make good early investments and to avoid dreadful workforce gaps, which we are seeing at the moment and which have been created over the last decade.

We are fortunate that there is no country in the world better set up for high-class use of data than ourselves. We have a single health system in each of the four nations covering our entire populations. Of course, our data is spread over more places than simply NHS databases. If we can get it organised, we ought to have the most rich understanding of our population’s health and of the outlook for the future. What an extraordinary gift that is, but we are not using it effectively enough at the moment and we can do much better.

I remember, early in my stint as shadow Public Health Minister, meeting a group of dentists, one of whom said to me that they can not infrequently recognise the signs of certain eating disorders by the impact that frequent vomiting has on the back of a person’s—in these cases, generally a young person’s—teeth. They found it hard to understand why they had no idea whether anyone else who provided care for that individual, or perhaps even the individual themselves, knew that that had happened, because they had absolutely no broader healthcare information about the person. Of course, there are important circumstances in which we need to create firewalls to protect privacy, and we would want people to have only the information that they needed to do their job properly, but in this case the clinician felt like they were flying blind and unable to provide the very best care for this person as a whole person rather than caring just for the teeth of the person.

As an Opposition, we want to see data used well, wisely and in an integrated manner, and if there has really been only token integration in part 1 of the Bill, why not see the real thing in part 2? As I have said, the history here for the Government is chequered. Only this summer, through the General Practice Data for Planning and Research programme, the Government sought, with a characteristic, I might say, lack of touch, to grab all the data from England’s GPs without explaining to patients why they wanted it, what they would do with it, who would use it and who would not use it. Again, it feels as if it is more than a three-word slogan: not enough time was taken to explain this, and the result was entirely predictable.

According to a survey done by Which?, 55% of people had heard of the scheme and, of those who had, 71% felt that the NHS had not publicised the scheme well. Of those unaware of the scheme, nearly 40% stated that they would now be likely to opt out of it. Fifty per cent. of the respondents who were aware of the plans said that they had heard about them through news or social media rather than official sources. Forty-two per cent. said that hearing about the scheme made them trust the NHS less—that was a particularly startling finding. And nearly one third of those who knew of the scheme and had opted out of it had found the opt-out process overly complicated. What a mess. In the end, we saw 1.4 million people opt out, despite how hard it had been made to do so, and the plans were soon punted into the long grass, to return at a date not specified.

This is a real hammer blow for the confidence in how the state and the country handle data. These were the headlines on 13 and 14 October alone. The Bracknell News had, “Thousands of people in Bracknell Forest have opted out of sharing their medical records”. The Somerset County Gazette had, “MORE than 10,000 people in Somerset West and Taunton have opted out of sharing their medical records”. The Lancashire Evening Post had, “Thousands in Preston block bid to share medical records”. The Wirral Globe had, “Tens of thousands of people in Wirral have opted out of sharing their medical records”. The Bolton News had, “Nearly 20,000 Bolton patients opt out of sharing their medical records for research.” There were similar headlines in the Shields Gazette, Hemel Hempstead Gazette, the Hartlepool Mail and more. If it were not so serious, it would be funny.

--- Later in debate ---

[Karin Smyth (Bristol South) (Lab)]

Unfortunately, Mr Bone, you missed our last sitting, in which I relayed to other Members my long career in the NHS and my experience on these matters, but I will start in the spirit in which I left off. Having worked at a clinical commissioning group at the time of the care.data episode, I absolutely concur with the comments made by the Labour and SNP Front Benchers, my hon. Friend the Member for Nottingham North and the hon. Member for Central Ayrshire.

We have had a lost decade, which is a great shame because the use of such data—we have learned much more about data and science during the pandemic—can save lives. My hon. Friend the Member for Nottingham North mentioned meeting a patient who could perhaps have been helped better. At the end of the day, that is what we want to make happen.

My experience inside the health service will not be everybody’s, but on information governance the attitude to data is very well developed and sophisticated, and people take it incredibly seriously. When we started on the care.data episode, the value of that really seemed self-evident in the system.

We need to bear in mind, as we look at the issue as legislators, that the people who deal with it day to day to effect what they see as positive change may be operating on one track and be completely taken by surprise by the public reaction. I remember trying to understand it myself; I am not a data specialist, but I tried to understand the different channels of what was being tried at the time. I explained to more senior managers that it did not sit right with me—I did not understand where it was going or what it meant for me. If I did not understand it, I knew that if it were not explained carefully, as the hon. Member for Central Ayrshire says, the general public would not either.

There is a missed opportunity. I ask the Minister to consider our very helpful Opposition amendment, not just in his role as a political leader in the Government, but by thinking about the rest of the system and how we can support it to do what it needs to. We absolutely need to bring the general public with us. Because of the mistakes of the past, I would argue that that we now require quite a mammoth exercise: not just differentiating between types of data, but considering who owns it, how we give it and what powers we will have in future.

As my hon. Friend the Member for Nottingham North said, the opt-out was really quite an incredible exercise over the summer. I think that has gone below the political radar in terms of the numbers of people who have taken that really quite difficult step. Part of this, as we will come to later, is about trust in GPs and GP data, which is where so much of our individual source data goes. The role of GPs also has to be brought very carefully along the path, because that data is of course very valuable for them.

The commercialisation concerns people, but beyond that, this is about our very essence—our trust in the system and the clinicians we see, who most of the time are our GPs. The Government need to step back—although not for too long, because they have already stepped back for a decade—and consider what is the best public exercise that they could embark on to resolve this problem, as the system and all of us really need.

Accepting our amendment in the spirit in which it was moved would be a step in the right direction. If the Government do not accept it, at the very least we should understand what they propose in its place.

[Edward Argar]

I am grateful to the hon. Member for Nottingham North for tabling amendment 109. I appreciate where he is coming from; as I understand it, his amendment is intended to ensure that the clause does not require health and care organisations to provide information that they could already be required to provide under existing powers. He talked about consistency and a single approach, and he is right.

The hon. Member for Bristol South is absolutely right, as is the SNP spokesperson, the hon. Member for Central Ayrshire, about the need for us—the Government, the system and indeed all of us—to better explain and reassure people about the fact that data saves lives and about how it is used. The hon. Member for Central Ayrshire was right to draw a distinction between pseudonymised and anonymised data. She was equally right to highlight that pseudonymised data is not relevant under the power, which is about anonymised data. In a sense, the reassurance is there, but it is incumbent on us to make it clear to people.

--- Later in debate ---

[Alex Norris]

I thank colleagues for their contributions, which I thought were really good. This is an important area, and it is important that we give it a proper look. The points that the hon. Member for Central Ayrshire made about the different types of data were important, and the run-through of their benefits and disbenefits was well made. I know that we will get to them again when we debate future amendments, so I will not prejudge that conversation. I still feel strongly—this relates to what the Minister said—that we have reached a point in the public conversation where there is no differentiation left, and that is the point that Simon Madden made. Because the temperature of the discussion has been elevated, they will be seen as one. That is what I have sought to address in my amendment.

My hon. Friend the Member for Bristol South was right to say that we have had a lost decade. That is, sad because it means that there have been healthcare improvements that we have not made. Over that time, extraordinary workforce gaps have emerged, and we would perhaps have been able better to plan around them if we had had a greater sense of the growing healthcare needs in our population. She is right that getting public trust back will be a “mammoth exercise”. That is why we have advocated for getting everything under one roof, in a single process.

The Minister mentioned that we all have a responsibility to explain data, and that it is important to make the arguments that we make in here out in our communities. I agree, but I feel I have much less of a responsibility to do that when the process is snuck out over the summer at short notice, without our ever having had a conversation about it. There could have been some effort to build consensus. I would have been willing to have difficult conversations with colleagues and constituents about it on that basis, but the way the process was handled made it impossible to defend. It left right hon. and hon. Members in the very strange circumstance of helping people to opt out of a system while thinking that that was not a good decision for them, or for anybody. As local representatives, we have a responsibility to people who ask for help.

I still do not get the sense from what has been said since then, publicly or in these proceedings, that the Government really understand the public message that they have sent, and I fear that that means we will keep repeating this conversation. In the amendment I simply ask that before the powers in the clause are turned on, a statement is made about how we seek to use these processes, and any other data processes, and handle them as one piece. That feels like a very modest ask.

I am going back and forth on whether to press the amendment to a Division. The Minister’s offer was a kind one, and I am conscious that I am putting a lot of this at his door. He did not create this process, but he is here speaking to part 2, so it is at least half him. Perhaps, when the dust has settled from what happened over the summer, we can have a conversation soon between Government and Opposition Members about how to do such things differently in future.

[Edward Argar]

I am happy to reassure the hon. Gentleman that either I or the relevant portfolio-holding Minister will happily have that conversation with him.

[Alex Norris]

I am grateful for that, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 121, in clause 80, page 71, line 20, leave out “250(7)” and insert “251C(6A)”—(Edward Argar.)

This amendment is consequential on Amendment 120.

Question proposed, That the clause, as amended, stand part of the Bill.

[Edward Argar]

As we alluded to in our discussion on amendment 109, the clause inserts a new section into the Health and Social Care Act 2012. It has the sole objective of increasing the sharing of anonymous data for the benefit of the health and adult social care sector. The provision applies only to information that is in a form that does not identify any individual or enable the identity of any individual to be ascertained. It allows health and social care public bodies to require such information from other health and social care public bodies and from others who are commissioned by public bodies to provide health and adult social care services. As we discussed in relation to amendment 109, the provision requires those bodies to share only information that they already hold in anonymous form; they are not required to process information held in order to render it anonymous.

The use of “anonymised” in the title of the inserted chapter is a typographical error to be corrected. It does not reflect a change in the policy intention, nor does it have any practical impact on the clause. Anonymous information—information that does not identify any individual or enable the identity of any individual to be ascertained—can already be shared without the need for safeguards to ensure privacy and confidentiality. The provision will mean that public bodies will be able to require such information to be provided to them for the benefit of the health and adult social care sector.

The hon. Member for Nottingham North made an important point about understanding the message from the public on data. He may have a different interpretation, but I think the message was, “Data saves lives, but it is our data. We want to know and approve of how our data is used and have control over it.” People recognise that data can improve care and treatment, but it is their data and they want to be reassured and comfortable about how it is used and the safeguards that are in place, and that it is their choice rather than something that is done to them.

The new power to require sharing of anonymous information will complement section 251B of the Health and Social Care Act 2012, which places a duty on certain health or social care organisations to share information about an individual with certain persons where that will facilitate the provision of care to the individual and it is in the individual’s best interests. Both measures underline the importance of sharing data proportionately and appropriately to improve services and care.

The clause will also complement key provisions in the Bill, supporting those that strengthen the duty to co-operate across the health and care system. Regulations will provide for exceptions. Issues such as minimising the burden on providers and protecting commercially sensitive information may be taken into account when introducing exceptions. It is intended that proposed new section 251D(1), which allows for anonymous information to be required, will not be commenced until the regulations are made and the exceptions are clear. Given the extensive debate that we have had on amendment 109, I will stop there and commend the clause to the Committee.

Question put and agreed to.

Clause 80, as amended, ordered to stand part of the Bill.

Clause 81

General duties of the Health and Social Care Information Centre etc

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

The clause amends the Health and Social Care Act 2012 and requires NHS Digital, when exercising its functions, to have regard to the need to promote the effective and efficient planning, development and provision of health services and of adult social care in England. NHS Digital must have regard to that alongside various other duties, and the clause requires it to have regard to the need to balance those duties.

In addition, subsection (3) makes clear that NHS Digital may share information for purposes connected with the provision of healthcare or adult social care, or the promotion of health. That is intended to address previous confusion about when NHS Digital can share data by clarifying that it can share data for purposes such as planning the delivery of services and medical research. This will ensure that NHS Digital has the right powers and duties to collect, share and otherwise process data proportionately, appropriately and with due regard to protecting privacy.

--- Later in debate ---

[Alex Norris]

As the Minister says, the clause deals with the Health and Social Care Information Centre, known to its friends as NHS Digital. This is a crucial body, and everything we have heard in debate so far, and in part 1 of the Bill, makes NHS Digital’s role even more central. The provisions in the Bill are modest; to use the Minister’s preferred language, they are de minimis. NHS Digital will be crucial as the body that can bring together, under one roof, information held by various organisations, and that can make sense of multiple systems in order to get the right information out, which is difficult. As we have heard, the history is chequered.

I hope that when the Minister sums up, we will at least hear a commitment that goes beyond what is in the Bill, and that NHS Digital is empowered to get a grip on our data across the entire piece. This is very much in the spirit of what I just talked about; there are multiple processes, all of which will at some point go through NHS Digital, which makes it an important clearing house. I hope Ministers will have a keen eye on its resources, and technical expertise. There is a real need for the organisation to demonstrate leadership, politically and at official level, and to pull the system together. I hope that we will hear a little about that, and about the outlook for NHS Digital. I am grateful for the point about private companies’ data; I will not reiterate that.

[Edward Argar]

I am grateful to the shadow Minister for his remarks and their tone. I hope that I can reassure him, in the few brief moments that I will take to sum up, that we recognise entirely NHS Digital’s current and potential role in helping to pull the piece together, adopting an holistic approach to data, and making sure that there is a coherent data strategy that works. I am confident and reassured that it has the technical expertise and resources to continue to develop its work and deliver for people in this country. I also reassure him that it continues to be a key priority of Ministers and the Secretary of State to ensure that NHS Digital has the tools it needs to do the job, so that, to go back to the thread that has run through our debate this morning, it uses its data to save more lives and provide more treatment, and does so in a way brings the public and our electors along with it. I hope that reassures him, and I am grateful for his remarks.

Question put and agreed to.

Clause 81 ordered to stand part of the Bill.

Clause 82

Collection of information from private health care providers

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

Clause 82 enables NHS Digital to require private healthcare providers to provide data, where this is necessary or expedient in order to comply with a direction by the Secretary of State to collect information. It does this by amending section 259 of the Health and Social Care Act 2012.

This provision will enable a consistent approach to the use of data, supporting improved safety and quality across private and NHS health services. The need for this was underlined by the Paterson inquiry, which examined the case of Mr Paterson, a breast surgeon who worked both privately and for the NHS and was found guilty of wounding with intent in relation to unnecessary surgery. NHS Digital has been working with the Private Healthcare Information Network to develop the acute data alignment programme. These provisions will support that work and enable data to be required from private providers where it is needed.

This provision is needed to ensure that the system has the information it needs to better understand the quality and safety of services across private healthcare and the NHS. NHS Digital will be able to exercise this power only where it has been directed to establish an information system by the Secretary of State, and information from private providers is necessary or expedient for that system to be established or to operate. That means we can ensure that demands on private providers are proportionate and necessary, and that they do not duplicate other requirements.

Clause 82 will provide NHS Digital with the powers it needs to contribute to the work that is being done to address issues of patient safety and quality identified through the shocking case of Ian Paterson. I therefore commend the clause to the Committee.

[Alex Norris]

We think that this measure is particularly important. Private companies must play their role in the process and share their information, just as we would expect the NHS and local authority bodies to do. However, we want clarity that there will be no refuge to be had from hiding behind bogus confidentiality on commercial grounds. That is not explicitly recognised in the Bill, but I am hoping that I have read this right and the Minister can confirm that that is because proposed new section 251ZA, which clause 79(3) will insert into to the 2012 Act, allows the Secretary of State to compel the provision of that information if they judge it to be necessary.

[Edward Argar]

That is my understanding. If I have misunderstood, I will, of course, correct the record for the shadow Minister.

Question put and agreed to.

Clause 82 ordered to stand part of the Bill.

Clause 83

Collection of information about adult social care

[Alex Norris]

I beg to move amendment 143, in clause 83, page 73, line 23, after “assistance” insert

“or any form of reablement and rehabilitation provided under section 2 of the Care Act 2014 to reduce the need for care and support”.

This amendment is consequential on NC47.

[Alex Norris]

These measures would bring reablement and rehabilitation provided under section 2 of the Care Act 2014, for the purpose of reducing the need for care and support, into the purview of the Care Quality Commission. Unlike other adult social care functions, rehabilitation and reablement services are not currently part of regulated adult social care activities. There is no reporting, guidance on service standards, monitoring or inspection. That is despite the fact that rehab activities carry a level of risk similar to that of other adult social care interventions. This is particularly pertinent because rehabilitation services will be critical for those who are recovering from long covid.

One example that would fit into this category is vision rehabilitation. There is evidence from the Royal National Institute of Blind People that there are individuals who have been waiting since 2018 for their vision rehab. That will, of course, have been affected by the pandemic. However, those waiting more than two years, who have had this very profound change in their lives, need to develop new skills that they previously would have relied on their sight to achieve. The sooner that can be done, the better, because there are going to be so many other obstacles to adapt to.

The pandemic alone is not reason enough to offer comfort there. In the RNIB’s research, an inquiry made to lead councillors for adult social care in England last year found that about four in 10 did not know that vision rehabilitation formed part of that portfolio. An element of that will be because it is an unregulated function. Having been such a portfolio holder, I remember that you are very conscious of regulated provision in your area, because of the seriousness that comes with that, and I want to explore this gap a little.

Of course, the past 18 months have been extraordinary circumstances. Being a regulated activity on the same level of other adult social care activities would not fix the problems on its own, but it would have made a difference. It would certainly have given those gaps greater prominence. That might have been the beginning of addressing them. Indeed, there is a sense in the sector that this level of regulation would improve the visibility and priority of these services to senior managers and lead members by allowing for better data collection, for guidance, for quality standards to be developed by the National Institute for Health and Care Excellence, and for inspection services by the Care Quality Commission.

I will not say much more on that. It may well be that this is not the best mechanism to do those things, but I would be keen to understand why this particular element of adult social care is unregulated when so much effort is put into regulating other elements of it. Rehabilitation and reablement are particularly important.

[Edward Argar]

I am grateful to the shadow Minster for tabling the amendment and enabling us to have this discussion and air this issue. I understand his intentions in the amendment and new clause 47. It is right that social care services are appropriately and effectively regulated, and this includes rehabilitation and reablement. However, I do not believe that the amendment and the new clause are the right way of achieving the intended outcome.

Where providers carry out regulated activities as defined under schedule 1 to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, rehabilitation and reablement services are already within the scope of the CQC’s activities. As such, most rehabilitation and reablement services are CQC registered and are usually carrying on the regulated activities of accommodation, personal care, and treatment of disease, disorder or injury.

The definition of social care in section 9 of the 2008 Act is already sufficiently broad to cover reablement and rehabilitation provided under section 2 of the Care Act 2014. If there are concerns about the scope of CQC regulatory activities in relation to these services, they would perhaps be more appropriately picked up as part of the ongoing review of the 2014 Regulations. That work would probably sit better there. We intend to publish the response to that public consultation on the review in due course. For that reason, I would encourage the hon. Gentleman to withdraw the amendment and perhaps seek to use that process and that review as the mechanism by which to further air these issues.

[Alex Norris]

I am grateful for that reassurance. That does provide comfort, certainly on the CQC aspect. The driver behind the amendment was as much that the CQC sharpens its focus for local authorities. I am not quite sure that we have got to the point where this will close that gap. However, there is a good mechanism by which to do so, so I might pursue this later, rather than pushing it to a Division.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

This clause inserts a new chapter 3 into the Health and Social Care Act 2012, relating to information about adult social care. It introduces a new power for the Secretary of State to require regulated adult social care providers to provide information relating to themselves, their activities or individuals they have provided care to. The information may be sought only for purposes connected with the health or adult social care system in England, and its processing will need to comply with the UK general data protection regulation. Disclosure of commercially sensitive information is restricted under new section 277B(2).

As the shadow Minister set out, the clause enables the Secretary of State to delegate this function to the Health and Social Care Information Centre—known to its friends as NHS Digital—or to a special health authority, or to arrange for other persons to exercise them. Any such person would be subject to the restrictions on onward disclosure set out in new section 277B in the same way as the Secretary of State.

The clause is crucial for helping us to fill data gaps, understand more about self-funders and better manage emergency situations. Data from local authorities can show only part of the picture, as individuals who privately fund care have little or no contact with a local authority. That needs to be addressed to support local authorities to manage provider markets and secure improved outcomes for all receiving care and support.

The provisions will support a consistent and transparent approach to the processing of data across privately and publicly funded care to enable improved safety and quality of provision. Without that data, our ability to effectively identify and manage emerging risks and issues and to take appropriate action will be restricted.

The clause will enable us to collect higher-quality and more timely information, fill data gaps, support high-quality provision of services, and manage risks at local, regional and national levels. I therefore commend it to the Committee.

--- Later in debate ---

[Edward Argar]

I am, as ever, grateful to the shadow Minister. On his final question, about the burden of the additional data that we want to collect, which is a fair one, the aim is to reach a point where we can collect and share data across the sector in a way that minimises those collection burdens. That will include giving careful consideration to the frequency and nature of data collection. We will seek feedback from those engaged in the process and carry out appropriate assessments of it.

The capacity tracker, which is a web-based digital insight tool that we used to collect provider data in near-real time to help manage the pandemic, currently has a very high completion rate. We do not anticipate that any further mandated collection will create a significant burden in addition to that tracker. We learned during the pandemic that it is one of the things that will have beneficial applications in future. The capacity tracker currently operates on a voluntary basis, but it has high sectoral coverage—about 95% of adult social care providers are voluntarily using it. That, I suspect, is motivated by the infection control fund incentives, but our intention is to make it as simple and as easy as possible for people to continue using the tracker without imposing a burden on them. We recognise, however, that if those incentives are not there, the balance of burden and compliance changes, so we are looking at longer-term collections, which would likely be required far less frequently than the frequent iterations involved in managing a pandemic.

We therefore believe that we have struck the right balance, but I assure the hon. Gentleman that we will continue to keep the matter under review and seek to strike the appropriate balance.

Question put and agreed to.

Clause 83 ordered to stand part of the Bill.

Clause 84

Enforcement of duties against private providers

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

The clause inserts a new chapter into the Health and Social Care Act 2012 dealing with the enforcement of information provisions. It enables regulations to be made to impose financial penalties on private providers that, without reasonable excuse, fail to comply with an information standard or a requirement to provide information, or that provide false or misleading information. I am sure that you, Mr Bone, and members of the Committee will be pleased to hear that the regulations will be subject to the affirmative procedure in Parliament. This allows us to provide for enforcement in respect of private organisations, which are not subject to usual accountability mechanisms and judicial review in the same way as public bodies. The clause also provides for the regulations to set out details such as the amount of the penalty, as well as safeguards such as notice of the penalty and an opportunity for the person to make representations and to appeal to the first tier tribunal. 

Clause 84 enables the Secretary of State to direct a special health authority to exercise the enforcement functions under regulations made under these new provisions and to give directions to the special health authority about the exercise of those functions. That provision and the related information provisions in the Bill are part of the wider strategy for health and care data, which aims to ensure more effective use of data across health and adult social care to deliver better treatment for patients, better health results for people who need care and support, and better decision making, research and support for those on the frontline. Our expectation is that those aims will be delivered through the commitments in that data strategy, including the legislative changes that we are making. The use of fines or, in the case of public bodies, judicial review is—as always—a mechanism of last resort but an important part of achieving those aims. I therefore commend the clause to the Committee.

[Alex Norris]

The clause is an important counterpart to clause 82. If private organisations do not comply with their duties, enforcement will be necessary, although we hope it will not prove to be so very often.

As the Minister said, much of this has been left to regulations, so we are flying a little blind, but his point about the affirmative procedure is welcome as we will have a chance to revisit the issue. Ahead of that, however, we suggest that the Government consider two things in formulating regulations. First, a private company should not be able to pay its way out of its responsibilities. The fine alone should not discharge the notice, and instead the information should still be forthcoming.

Secondly, in pursuit of that, under section 54 of the Modern Slavery Act 2015 the Secretary of State has the power to injunct a company and stop it trading if it does not comply with its responsibilities to publish a statement on modern slavery and its supply chain. A similar provision in the Bill would be highly effective. I hope that the Minister and his officials will consider that when they formulate the regulations. We will have a further debate on this at that juncture.

[Edward Argar]

I am happy to bear in mind those sensible points as we look to the formulation of regulations. I am grateful to the shadow Minister.

Question put and agreed to.

Clause 84 ordered to stand part of the Bill.

Clause 85

Medicine information systems

[Dr Whitford]

I beg to move amendment 65, page 77, line 3, at beginning insert “Subject to subsection (3A),”

This amendment, together with Amendment 66, would allow specified people and organisations who are required to provide information for a registry or information system to provide information to NHS Digital in pseudonymised form.

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[Alex Norris]

I congratulate the hon. Member for Central Ayrshire on her amendments and the case she made for them. I remember with fondness that during proceedings on the Medicines and Medical Devices Act 2021 we were able to offer constructive ways in which information regarding medical devices could be collected and used. We managed to move the Government on that. I hope we have similar success on these proposals too, because those were arguments well made.

Amendments 65 and 66 get to the heart of building confidence regarding data among the general public. There is widespread understanding about anonymised data and about datasets so big that individuals cannot be recognised, but we know that sometimes, if we want more detail, and particularly around rarer conditions or in rural and more isolated communities, we risk identification. Giving our information leaders the tools with which to protect individuals while still delivering the desired outcome is a sound principle and is part of hearing the message that was sent from our constituents, so we can start to rebuild trust. Providing such extra tools would be proportionate.

Turning to amendment 64, devolution is at its best when the four nations can exercise the advantage of local knowledge and leadership but collectively harness separate oversight to tackle collective challenges. That is important, particularly for the use of data. I strongly believe it will be in the interests of people across the United Kingdom for all four nations to have similar systems of standards and alignment on data. I am conscious that the challenges in north Nottingham will be similar to the challenges in north Cardiff, but devolution may well mean that services in Cardiff are different from those in Nottingham; that is part of the process. It can also mean that the outcomes are different, and we may want to know that, so that one community can, if it wants to, change to replicate what another is doing. I am not arguing against common usage; I think it is important, but we do not want a situation where the Secretary of State seeks to act with overbearing control as a first among equals. The mutual benefits of sharing data are so clear to all parties that they ought to be able to be agreed on a good-faith and negotiated basis. It should not need compulsion from the Secretary of State; in fact, that would be a significant failure. Therefore, the opt-out specified would be proportionate in this case.

Amendments 61 and 62 are crucial. The general practice data for planning and research process fell over because a significant part of the population did not trust the Government to handle their data appropriately. There is widespread concern about the Government’s relationship with big commercial entities, whether in the planning process, political donations or covid contracts. They are not scare stories or political fluff; they are real issues, they are in the public consciousness, and there is a sense that that relationship and the balance with the commercial sector is not one where the calibration is right.

On data, we must at every opportunity send the loudest possible signal that there are irremovable firewalls between people’s data and commercial usage. That works on two levels. First, as mentioned there is a lack of trust that the data will not be handed over to big commercial companies. We know that the mega-giants in social media have an insatiable desire for our data, and the old adage that social media is only free because our data is the product rings true. The NHS is not like a social media platform, though; it is free at the point of use, but we have paid for it through our taxes. It is not a free service we get in return for sharing our data, and there is no mandate to simply pass on the information collected as a result of our healthcare.

Let us be honest: what confidence would we have in sending the Government to negotiate with these companies? We have seen the painstaking process involved in just getting them to pay tax in this country; I would not, with full confidence, send a Prime Minister to negotiate a fee for our data, because I suspect we would end up paying the companies. This is an opportunity to be absolutely, immovably and irreversibly clear that we do not think that they should be near this data.

Secondly, it is worth reiterating that it is not as simple as just not handing data over. Even through legitimate and beneficial use of data, we are still at risk of getting a bad deal. For example, we no doubt want to use population-level healthcare to work out what conditions we may need new treatments for in the future. For that reason, we want researchers to use this data, and from that new treatments and drugs will emerge. Big pharmaceutical companies stand to gain from this, so how is it to be accounted for? We have a stake and have played a part in that process, so we ought to have a share of the benefits. How will the premium that we pay for the new treatments reflect the contribution that we have made—bluntly, where is our dividend? Those are the reasons that the GPDPR process fell apart, and why there is so much suspicion about the Government’s handling of data more generally. If we keep repeating the same approaches we will get the same outcomes. This is a moment to change that and to send a signal that our data will be protected from commercial interests; I hope the Minister will meet this moment.

Finally, on amendments 60 to 63 and 67, I will not rehearse the arguments I have previously made. I can conceive of times when NHS bodies, local authorities, community and voluntary sector providers or private sector providers might fall short of the expectations we have of them on data sharing, and exceptions where the Secretary of State may need to step in. That is why the Opposition have supported earlier clauses in part 2. That is a reasonable and proportionate way of ensuring that the data sharing regime is an enabling regime. I cannot think that applies to the devolved nations. All four nations are partners in the common pursuit of improving health outcomes; we may diverge in approach, but the common goal is the same. I cannot conceive that there will be such a divergence on data that it would be legitimate and wise to resolve it by working without shared consent. I hope, in the light of the arguments made, that the Minister will revisit that point.

[Edward Argar]

To the point made by the hon. Member for Central Ayrshire about the relationship with Edinburgh, while it is correct that a number of these clauses, and a large part of the Bill, were not finalised in their drafting until a day or two before publication, it is important to say that since the beginning of this year Scottish Government officials have had sight of the intentions and have been discussing with UK Government officials the wording and content of these clauses. I appreciate that this is not necessarily the same as a Minister seeing the exact wording, but that relationship and transparency has been there at that level.

I also put on record my gratitude to Humza Yousaf, the Cabinet Secretary for Health and Social Care. I spoke to him a week or two ago, and with tragic timing, in that conversation he asked me to pass on his best wishes to James Brokenshire for his recovery. I know that they got on well, and I hope that I have a similar relationship with Humza, who is pragmatic, and I appreciate the work that he is doing on this. We continue to talk, because I am keen that we have that healthy relationship and it is my intention that we respect the Sewel convention and work together to come to an agreed position. It is challenging because there are genuine differences of principle on how things should be interpreted, but I am committed to working with him, as he is with me, to find a way to reach a common position that respects everyone’s principles and approach.

The medicine information systems clauses give us an important opportunity to ensure we have the highest quality evidence on which to base critical regulatory decisions. If we get this right, there is real potential, which has been alluded to by all Members, to take a step forward in the way medicines are monitored, risks are identified and action is taken to protect patients. We need to provide for the most effective operation of this system to realise the full benefits for patients across the UK.

The detailed operation of the system will need to be carefully considered further as we develop the regulations under the clause. It will probably be important that the systems are able to receive information that is fully identifiable to ensure accurate linkage and deduplication of data. That is necessary to ensure that the information system is able to capture a comprehensive picture of a patient’s treatment to generate robust evidence, and that if a patient moves from one area of the UK to another, they are not lost from the registry.

Robust decision making on patient safety must be made using accurate data, which can only be achieved by processing identifiable data from the four nations to create the UK-wide information system. That necessitates precise data linkage due to the nature and potential rarity of harmful events based on multiple identifiable data points. It is proportionate to use identifiable data to understand potentially adverse patterns early.

Patient-identifiable information is also necessary where inclusion in a registry is to be used as a risk minimisation tool, where a patient needs to be identifiable in the registry to their healthcare providers, or if information systems are linked with wider safety monitoring mechanisms already in place, such as the yellow card scheme, through which the public and healthcare professionals can report adverse incidents experienced with a medicine to MHRA, to further strengthen the data it collates.

It is not necessary to make provision in the Bill, because the powers in clause 85 give the ability to follow the most appropriate approach on the collection and disclosure of data, following discussion with stakeholders on the detail of the future regulations. The confidentiality and security of patient data and the reassurance that offers to patients is paramount. I hope I can assure the hon. Member for Central Ayrshire and other Members that all data held in a medicines information system will be processed in compliance with data protection legislation, which places crucial safeguards on the use of that information. That includes data principles such as lawfulness, fairness and transparency, purpose limitation and data minimisation—meaning that the minimum necessary information will be collected to meet the required purpose.

I recognise the importance of ensuring the appropriate and proportionate use and access to information in a medicine information system. As part of our consultation on the regulations to establish and operate a medicine information system, we will engage with patient groups and other stakeholders across the UK, as well as the devolved Administrations, on the content and scope of the system to ensure we do what is right for patients.

On amendment 64, at official level we have been in discussions with the devolved Administrations since February about the provisions in the Bill, particularly those for which at an early stage we identified a shared agreement that legislative consent was required. Clause 85 is one of those. I would like to put on record my gratitude to those officials—we often talk at ministerial level, but they worked very hard for some time in the spirit of finding a way forward that works for everyone. Let me say the same in respect of the devolved Administrations, who have spent considerable time working with us.

Without going into too many details, because those discussions are continuing, I have had constructive discussions with the Cabinet Secretary for Health and Social Care in Edinburgh. I am keen, as he is, to do what we can to move those discussions forward. I hope we will be able to provide further reassurance over any outstanding areas of concern to the DAs, and where necessary and agreed, to table amendments ahead of Report. I hope that gives the hon. Lady some reassurance that I am directly engaged with the Cabinet Secretary and I will continue to be so. I am due to have another conversation with him in the coming days, and I have in my bundle another draft letter I am due to send him addressing some of the details of the granular points we are now looking at. I hope we will be able to make progress.

For medicine information systems to be truly effective as a tool, they need to cover all patients using the medicine across the UK. The regulatory decisions taken on the basis of the data collected will apply to the licensing of that medicine across the whole of the UK. My concern about Scottish Ministers choosing whether Scottish providers should or should not participate in the information system is that it could risk a fragmented approach, which is why we are having those discussions at policy level.

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[Dr Whitford]

I welcome the Minister’s constructive comments. Obviously, I am not party to the consultations that are going on. I am still disappointed that there was not provision for both consultation and, where necessary, legislative consent. As the Minister clarified, those registries will absolutely contain individual patient data. As a surgeon, of course I support the principle of registries and how they are put together, but the responsibility for data in NHS Scotland and in the other devolved nations lies with the Health Ministers of those nations. It is disappointing that there was nothing put in these provisions.

I hope that the consultation goes forward. I will therefore not push the amendments. Obviously, I reserve the right to table amendments at a later stage. However, it is important that the Government recognise that the same concerns that we have heard around GP data in England would then apply in Scotland, where we have not taken any kind of commercial approach in the past, and that there will be a recognition of the role of those health Ministers. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

As we have discussed in the context of the various amendments, clause 85 inserts a new chapter, 1A, into the Medicines and Medical Devices Act 2021. It introduces a new power to make regulations that would provide for one or more medicines information systems to be established and operated by NHS Digital. The power may be exercised only for the specified purposes set out in the provision: namely, purposes relating to the safety, quality and efficacy of human medicines and the improvement of clinical decision making in relation to human medicines. The clause sets out the types of provisions that could be made by the regulations and, to ensure full engagement, includes a mandatory public consultation requirement that must be fulfilled before any regulations are made.

Medicines information systems will enhance the capture and collation of information on the uses and effects of specific medicines across all four nations, including medicines prescribed to patients by the NHS and private healthcare providers. That information will be used by the Medicines and Healthcare Products Regulatory Agency to enhance post-market surveillance of medicines by enabling the development of comprehensive UK-wide medicines registries, which will be used to drive improvements to patient safety. The evidence generated through medicines registries can be used to inform regulatory decision making, support local clinical practice and provide prescribers with the evidence needed to make better-informed decisions. For example, where safety concerns have led to the introduction of measures to minimise risk to patients, comprehensive medicines registries will enable early identification and investigation of cases where those measures are not being followed, so that additional action can be taken to improve safety at national, local or individual patient level.

The clause also ensures that we have the right powers to promptly modify what data is collected by NHS Digital as the need for new or different information about a medicine emerges in the light of changing or developing public health needs. That will provide the ability to rapidly respond to emerging risks to patient safety if and when they develop.

Given the overarching aims of the clause, it makes sense that the provisions will ultimately sit within the Medicines and Medical Devices Act 2021, which has a similar power for establishing information systems for medical devices in section 19. To ensure the effective operation of both the medicines information systems and the medical devices information systems, the clause also introduces necessary technical amendments to the MMD Act.

The clause drives forward improvements to the safety measures that protect patients in the UK against avoidable harm from medicines, and supports the need for the establishment of registries as recommended in the independent medicines and medical devices safety review, published last year. The clause directly supports putting patient safety at the heart of regulatory decision making. It will ensure that we have robust and comprehensive evidence to address public health concerns, and enable mechanisms to track the use and effects of medicines, based on public health needs. I therefore commend the clause to the Committee.

[Alex Norris]

I had intended to go the entire period that I am in this place, however long that might be, at least trying to be a young Member, if not a new Member, but clause 85 amends a piece of legislation that I was on the Bill Committee for previously, so I feel that I cannot do that now. That is really startling. Nevertheless, as I said earlier, I and the hon. Member for Central Ayrshire argued strongly for this in Committee on that Bill, and I certainly would want to see this used properly and developed. With all the daily treatments that there are—and certainly when it comes to the medical devices that are inserted into people on any given day and on every day of the year every year—we really ought to know what those things are and, when there is a problem, be able to deal with it quite quickly.

I will make one final point. The Minister references, quite rightly, the independent review—the Cumberlege review. We will be revisiting the matter in the new clauses, because the Government have not done the job properly on that review. Although there are elements in this clause that make good on some of the commitments, there are very significant things that have been left out and that the Government do not intend to do, and they have really let down the families by not doing them, so we will be returning to that point, and I hope to find the Government in listening mode when we do.

[Edward Argar]

I have nothing further to add to what we have said, save that I am always in listening mode when the shadow Minister is making his points.

Question put and agreed to.

Clause 85 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Steve Double.)

Health and Care Bill (Fourteenth sitting)

Edward Argar Excerpts

Committee stage
Tuesday 19th October 2021 Public Bill Committees

[The Chair]

With this it will be convenient to discuss the following:

Amendment 69, in clause 87, page 80, line 7, at end insert—

“(2A) Regulations under this section which make provision affecting the functions of Scottish Ministers may not be made unless the Secretary of State has consulted the Scottish Ministers on that provision.”

This amendment would put a duty on UK Ministers to consult Scottish Ministers on regulations making provisions on conferring of functions on the Scottish Ministers or amending or removing functions from them in reserved areas before these regulation making powers are exercised.

Amendment 68, in clause 87, page 80, line 33, at end insert—

“(5A) Regulations under this section to which subsection (5) applies may not be made without the consent of—

(a) the Scottish Ministers, if they contain provision for a body to exercise a function that is exercisable in relation to Scotland,

(b) the Welsh Ministers, if they contain provision for a body to exercise a function that is exercisable in relation to Wales, or

(c) the Northern Ireland Ministers, if they contain provision for a body to exercise a function that is exercisable in relation to Northern Ireland.”

This amendment would require the Secretary of State for Health and Social Care to obtain the legislative consent of the devolved governments before powers in this clause are exercised.

Clause 87 stand part.

Amendment 70, in clause 88, page 81, line 17, at end insert—

‘(4A) Regulations under this section to which subsection (4) applies may not be made without the consent of the—

(a) Scottish Ministers, if they contain provision for a body to exercise a function that is exercisable in relation to Scotland,

(b) Welsh Ministers, if they contain provision for a body to exercise a function that is exercisable in relation to Wales, or

(c) Northern Ireland Ministers, if they contain provision for a body to exercise a function that is exercisable in relation to Northern Ireland.”

This amendment would require the Secretary of State for Health and Social Care to obtain the legislative consent of the devolved governments before powers in this clause are exercised.

Clause 88 stand part.

Amendment 71, in clause 89, page 82, line 13, at beginning insert “Subject to subsection (6A),”

This amendment, together with Amendment 72, would require the Secretary of State for Health and Social Care to obtain the legislative consent of the devolved governments before powers in this clause are exercised.

Amendment 72, in clause 89, page 82, line 19, at end insert—

“(6A) Regulations under section 87 or 88 containing provision by virtue of section 131(1)(a) and repealing, revoking or amending provision made by or under—

(a) an Act of the Scottish Parliament may only be made with the consent of the Scottish Ministers,

(b) a Measure or Act of Senedd Cymru may only be made with the consent of the Welsh Ministers, and

(c) Northern Ireland legislation may only be made with the consent of the Northern Ireland Ministers.”

See explanatory statement to Amendment 71.

Clauses 89 to 92 stand part.

[The Minister for Health (Edward Argar)]

It is a pleasure, as ever, to see you in the Chair, Ms Elliott. The existing arm’s length body landscape has remained largely unchanged since the Health and Social Care Act 2012 reforms. As the health service has evolved, this structure has led to a fragmentation of roles between different organisations, and sometimes competing priorities being disseminated to providers. We have seen ALBs, with all their differing functions and operations, responding as rapidly as possible during the pandemic. Building on this recent energy and innovation, and the value of working flexibly, this power provides a mechanism to support a more responsive and adaptive system than the current structure allows. Using these powers—to transfer functions to and from ALBs—the system will be able to respond to differing challenges more swiftly.

Clause 86 sets out the definition of “relevant bodies” that is used in part 3 of the Bill. This definition is relevant to clause 87, which provides the Secretary of State with a power to transfer functions between relevant bodies, and to clause 88, which provides a power to delegate functions of the Secretary of State to relevant bodies. The bodies covered by this definition are all public, sponsored by the Department and operating in the health sector. In many instances they have complementary functions where there could be material benefit to elements of joint delivery.

This definition does not include a number of health and care-related bodies, including the National Institute for Health and Care Excellence and the Care Quality Commission, which we have determined should not be covered by the powers in part 3 of the Bill due to the nature of their advisory, regulatory and/or public health functions. The clause therefore establishes the non-departmental public bodies in scope of the power to transfer functions set out in clauses 87 to 92.

I am grateful to the hon. Member for Central Ayrshire for tabling amendment 69, which seeks to ensure that Scottish Ministers are consulted before a transfer of functions in reserved areas is carried out. Clause 92 sets out the Secretary of State’s duty to consult any body to which the proposed change relates, as well as the devolved Administrations if the draft regulations apply in their jurisdictions and relate to matters that are within the legislative competence of their legislatures, or in respect of which their Ministers exercise functions.

If functions exercisable by Scottish Ministers are impacted, Scottish Ministers would, in our view, already be consulted under the current wording. We do not consider it appropriate, therefore, to consult a devolved Administration on reserved issues where it can be shown that they do not impact on it in any way. We have committed to setting out further detail in the memorandum of understanding, both in terms of early engagement and the formal consultation process, when it is appropriate.

Amendment 68 seeks to introduce a requirement for devolved Administration ministerial consent if a proposed transfer of a function includes a function exercisable in relation to a devolved Administration and involves a body with a requirement for representation of Wales, Scotland or Northern Ireland on its board. Clause 87 confers a power on the Secretary of State, through secondary legislation, to transfer functions between the relevant bodies listed in clause 86.

That is not a power to take away services that are currently provided by the relevant arm’s length bodies that are in scope; the power allows only for moving the existing functions around within the current landscape in order to provide greater flexibility. If it is used, it will be to make necessary and helpful changes to the ALB landscape, such as enabling professionals with complementary expertise to work more closely together, as they have in many areas in response to the ongoing pandemic.

Many functions relate to England only, and when bodies do operate in devolved areas it is often through mutual agreement. We fear that it would be disproportionate to require consent each time the power is used. We consider this to be primarily about improving administrative effectiveness.

We recognise that there are arrangements to ensure that devolved Administrations’ interests are recognised and represented at board level. Clause 87 makes explicit provision for the continuation of any existing board representation for devolved Administrations on the body to which relevant functions are transferred. We believe that that provision, alongside the current commitment to consult that is set out in the Bill, and underpinned by a detailed memorandum of understanding between the UK Government and the devolved Administrations, provides the opportunity to engage in a thorough and meaningful way throughout the entire process. However, as I alluded in my response to the hon. Lady’s previous amendments, I will continue to engage with Ministers in each of the devolved Administrations to further explore whether—to build on what I have already said—there is anything more we can do to provide reassurance ahead of Report.

Clause 87 confers on the Secretary of State the power to transfer functions between the relevant bodies listed in clause 86 using secondary legislation. Clause 87 sets out the conditions that would need to be met for the Secretary of State to use that power—namely, to improve the exercise of those functions with regard to efficiency, effectiveness, economy and securing appropriate accountability to Ministers, with the aim of improving patient outcomes.

The Secretary of State can, through regulations, modify the functions and constitutional or funding arrangements of the affected bodies, and, with the exception of NHS England, abolish a body if it has become redundant as a consequence of the transfer of functions. That will be done by way of a statutory instrument laid before the House under the affirmative procedure. The Secretary of State must also make provision for maintaining representation of the interests of the devolved nations where there is the pre-existing requirement in the constitution of the body from which the function is transferred. That provision, together with clause 88, ensures a more agile and flexible framework for key health bodies that can adapt over time.

Our arm’s length bodies want to work together more closely, and the covid-19 pandemic has demonstrated the value of working flexibly. Building on that recent energy and innovation, the clause provides a mechanism to support a more responsive and adaptive system than the current structure allows. Amendment 70 would introduce a requirement for devolved Administration ministerial consent if a proposal to transfer a function involves the transfer of a function exercisable in a devolved Administration and a transferring body with devolved representation on its board.

Clause 88 confers a power on the Secretary of State, through secondary legislation, to delegate functions that may be delegated to special health authorities to any of the relevant non-departmental public bodies listed in clause 86 instead. The clause gives the Secretary of State the power only to delegate the Secretary of State’s functions. It does not create any power for him or her to do anything in respect of the functions that devolved Administration Ministers direct those special health authorities to perform in the devolved nations. As with clause 87, clause 88 makes explicit provision for the continuation of any existing board representation for DAs on the body to which its functions are transferred.

I set out in our debate on amendment 68 the Government’s reasons for opposing the imposition of a consent requirement on the use of the power in clause 87. We oppose a consent requirement in clause 88 for the same reasons. A further reason for opposing a requirement for the consent of the devolved Administrations to the power in clause 88 is that the clause simply allows the delegation of functions of the Secretary of State. The Secretary of State already has the power, in effect, to move any of his or her functions between different special health authorities. That does not require the consent of the DAs. Clause 88 merely extends that provision, so that the Secretary of State may delegate their functions to one of the NDPBs. For that reason, I encourage the hon. Member for Central Ayrshire not to press her amendments, but I will wait to hear what she says when she speaks to them shortly.

As we have already discussed, clause 88 gives the Secretary of State the power to make regulations providing for a relevant body to exercise some of their functions. As with clause 87, that would be done by way of a statutory instrument laid under the affirmative procedure. Since special health authorities exercise functions of, and are subject to, direction by the Secretary of State, the Secretary of State already has the power to provide for a function currently exercised by one special health authority to be exercised instead by another. The special health authorities that currently exercise functions on behalf of the Secretary of State are the NHS Business Services Authority, NHS Blood and Transplant, the NHS Litigation Authority, now known as NHS Resolution, the NHS Counter Fraud Authority and the NHS Trust Development Authority, which is merging with NHS England as part of this Bill.

As outlined in clause 87, this clause sets out that, by virtue of clause 131, the Secretary of State can use that power to make consequential, transitional or saving provision to modify the functions, constitution or funding of either affected body. The Secretary of State must also make provision for maintaining representation of the interests of the devolved Administrations where there is the pre-existing requirement in the constitution of the body from which the function is transferred. This clause, together with clause 87, provides vitally needed flexibility for the health system.

I am grateful to the hon. Member for Central Ayrshire for tabling amendments 71 and 72 and thereby bringing these issues before the Committee for debate. These amendments seek to ensure that devolved Administrations have the power of veto over any consequential changes that may be needed to devolved legislation. I note that in her evidence to the Committee Baroness Morgan, the Welsh Minister for Health and Social Services, also expressed concern about this power, as well as the general power to make consequential amendments in clause 130, which she linked it to.

During my discussions with Lady Morgan about the Bill, I have set out why I believe these powers are necessary and appropriate. I hope I have been able to provide some reassurance to this Committee; it is my intention to provide further reassurances on this matter throughout the Bill’s passage, and I continue to talk to the relevant Ministers in the devolved Administrations.

The power to make consequential amendments to devolved legislation provided for by clause 89(6) is entirely limited to matters that are genuinely consequential upon regulations and will be largely technical in nature, such as name changes post transfer. The substantive power is to make the transfer of functions, and the consequential amendments flow directly from that. For the statute to work, those consequential changes should not be subject to consent requirements in their own right.

There are precedents for this type of power to make consequential amendments to devolved legislation in many other Acts, and indeed reciprocal powers for devolved Administrations to make consequential amendments to UK Acts of Parliament. It is worth noting, in the context of the ALBs that we are concerned with in these clauses, that Welsh legislation in 2013 made consequential amendments to the Human Tissue Act 2004 of this place. We fear that seeking to introduce new consent requirements on consequential amendments to devolved legislation would be unnecessary and could risk unbalancing current delicate constitutional relationships.

Clause 89 details the scope of those powers referenced in clauses 87 and 88, namely the powers for the Secretary of State to transfer functions to and from relevant bodies and to delegate the Secretary of State’s functions to them. Clause 89 sets out the detail of what may be done when using these powers, which gives useful clarity as to the powers’ scope. Subsections (1) to (3) set out what may be included in regulations when modifying the functions of a body, the constitutional arrangements or the funding arrangements.

The clause also sets out certain types of powers that may be repealed and re-enacted, but not created, at subsection (4). For example, the power cannot be used to create a new criminal offence, but can be used to repeal or re-enact an existing one so that it moves with a relevant function if appropriate.

As the functions of the relevant bodies are set out in primary legislation, it will be necessary to amend, repeal or revoke such primary legislation when providing for a transfer of functions. The power to do this is provided at subsection (5). Future legislation that relates or refers to the relevant bodies in question may also need to be amended.

It is also necessary for there to be powers to amend devolved legislation—I suspect this is where the hon. Lady and I may have a slight divergence of interpretation or of view, but we will see. There are references to the relevant bodies in devolved legislation, which may need to be amended in order to refer to a new body to which a function is transferred to ensure the effective operation in law of that transfer.

Regulations made under these powers will be subject to the affirmative procedure. That ensures that Parliament can scrutinise the use of the power, including any necessary amendments made to primary legislation, following consultation with the relevant parties, as set out in clause 92. It is an important provision that will allow transfers and delegations of functions to be made effectively.

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[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to resume with you in the Chair, Ms Elliott, and to move on to part 3. Of the various parts, it has possibly had the least impact on my mailbag, but it is important. I am a little troubled by some of the provisions and want to probe them a bit.

The Minister gave a good and characteristically cogent explanation of what is in the Bill, but not of why it is there. That explanation was much shorter, so I want to come back to that because I do not think it is clear what problem the Government are seeking to solve. Has a significant risk to the health and wellbeing of the nation been caused by the Secretary of Secretary’s inability to remove functions from one organisation to another more quickly? I do not think that is the case. The Minister made the point about a rather fractured service and the need to be able to act more swiftly. I will revisit those points shortly.

Clause 86 specifies the organisations that the Secretary of State can delegate or transfer functions to: Health Education England, the Health and Social Care Information Centre, the Health Research Authority, the Human Fertilisation and Embryology Authority, the Human Tissue Authority and NHS England. I was surprised not to see the UK Health Security Agency in that list and I hope the Minister will come back to that.

Clause 87 allows the Secretary of State to move functions between the organisations, and clause 88 provides for the Secretary of State to permit them to exercise functions on the Secretary of State’s behalf. Are we really saying that there are not decent, appropriate and effective ways to do that already? For example, the UK Health Security Agency is a relatively new body and it will take time for it to settle in and find its level. Do we really believe that there are no mechanisms to ensure that it can exercise functions on the Department’s behalf, or that there might be a public health information function currently exercised by NHS England that the agency might be better able to deliver in the future, but cannot because it is not covered by this legislation? I find that hard to believe. Are we saying that there will be an alternative route for that? I cannot understand why there would be a different way of doing that.

If that is really necessary, why is the Government’s instinct to do it by regulation? If there are problems today that perhaps the past challenging 18 months have revealed, we have got primary legislation here, so we could make whatever changes the Secretary of State wishes to make to the organisations on the face of the Bill. Obviously, that would not help with new and emerging problems, but what are they? What examples have happened recently? It feels as though we have a solution in search of a problem to solve.

Clause 87(3) basically prevents the Secretary of State from abolishing NHS England. Well, we would hope so—that seems wise—but what of the other agencies? The Health and Social Care Information Centre was formed by the Health and Social Care Act 2012; the Health Research Authority and Health Education England were created by the Care Act 2014; the Human Fertilisation and Embryology Authority was formed by its own Act in 1990; and the Human Tissue Authority was created by the Human Tissue Act 2004. Are we really saying that we need a more direct ministerial route to dissolve or amend these bodies?

We have recent precedent for this: over the course of the past couple of weeks, or certainly over the past few months, the Government have taken Public Health England apart, taking some functions for themselves and creating a new organisation with the remaining ones. They were perfectly able to do it in that case, which would seem to me to be a very drastic case. Now, we think that was a very bad thing to do—I will continue to make that argument—but what I cannot understand is why, if the Government were able to do that then, they would not pursue the same routes in the future.

I would not argue the case against clauses 88 to 91, which form the blueprint for these powers, but I would argue against the rationale for them existing at all. Amendments 68 to 72 again seek to protect the devolved settlement: as the Minister has said, clause 92 provides for devolved nations to be consulted on changes that are within their legislative competence, but I am concerned that that consultation might not go far enough. If we consider a policy area as a devolved matter, that surely requires consent. I have heard some response to that point from the Minister, but we may well hear a little bit more.

Clause 92 lists who the Secretary of State “must consult”. As well as devolved nations, it includes the organisation in question and then anyone else the Secretary of State wishes to consult. That list does not expressly include the public or experts in the relevant discipline, for example, and I do not think that is sufficient. In reality, the decision over Public Health England was a rash one, made in its early stages by individuals who are not really involved anymore. In all honesty, nobody would have made the decision that was made: it was a situation in which, despite our desperate attempts to give the Government room to do so, they never quite managed to climb down. However, talking to the public and to experts would have helped the Government make a much better decision in that case, and I am surprised not to see those groups included on the face of the Bill. I hope that we will get an assurance that at least in the Minister’s mind, “anyone else the Secretary of State wishes to consult” would involve some experts, if not the public. I very much hope it would.

To conclude, we have gone back and forth on this topic in recent days, and we cannot support the provisions in this part of the Bill. They are Executive overreach, and there are recent examples of why these powers are unnecessary, because the Government can already do these things. During the proceedings on the Bill, the Minister has frequently told us that our amendments are not necessary because they are already covered elsewhere. I am going to gently turn the tables and suggest that these powers exist elsewhere, and therefore these provisions are not necessary.

[Edward Argar]

I am grateful to colleagues for their comments and contributions. The short answer to the shadow Minister, the hon. Member for Nottingham North, is that comparing the UK Health Security Agency, for example, to what we are discussing here is in a sense comparing apples with pears. This is about non-departmental public bodies. UKHSA is an Executive agency, so it is already directly under the power of the Secretary of State, hence why the Secretary of State was able to make those changes. This is about the different categorisation of two subordinate bodies of the Department—NDPB versus Executive agency—which is why this section of the Bill deals with NDPBs, for which that power is currently not the same as it is for an Executive agency such as UKHSA. It is a technical point, but hopefully that gives the hon. Gentleman some explanation of the difference in approach.

[Karin Smyth (Bristol South) (Lab)]

I am grateful for that clarification, but I believe—perhaps the Minister will comment—that that makes the comments from my hon. Friend the Member for Nottingham North about Executive overreach even more pertinent and well made than they were in the first place. The fact that these are public bodies that are subject to the Commissioner for Public Appointments, which is something the Minister might come on to later, means that their quasi-independence is more significant, not less, and that they are governed accordingly.

[Edward Argar]

I will turn to that issue, but before I do I will address the question of why I think this is a proportionate and necessary change in the powers. As we have seen during the pandemic, there can be rapid changes and moves in the functions of those NDPBs, and we therefore cannot have a process that preserves in aspic a particular set of functions in primary legislation. I believe this is a proportionate measure that allows for flexibility around those functions around NDPBs, although in my view it does not encroach on the way they operate, hence the non-departmental public body point that the hon. Lady made. It strikes an appropriate balance.

The other point the hon. Member for Nottingham North made, which shades into the points from the hon. Member for Central Ayrshire, is that where a policy area is devolved, it should be that devolution settlement that takes primacy. The challenge is that, in a number of areas here, we see almost a hybrid of reserve powers and devolved powers.

We will come on to this after we have debated the Health Service Safety Investigations Body part, but it is a good illustration, so I will use it as an example here: if we look at reciprocal healthcare arrangements, which we will come to, the implementation or impact on the ground is to a degree devolved; it is about the organisation of health services in a particular area. However, the power to make international agreements is reserved.

Therefore, in spaces such as this, we come across complex challenges where there is no clear delineation for how to respect the devolution settlement and not intervene in aspects that are clearly devolved, while also striking a balance such that the devolved Administrations do not have a power of veto over a reserved matter. Those are the complexities we are wrestling with in a number of areas here, and I think that goes to the heart of the issues that the hon. Member for Central Ayrshire has been raising.

[Dr Whitford]

The Minister mentions the UK Health Security Agency, which was suddenly created in the middle of the pandemic—supposedly out of Public Health England, so I am not quite sure whether Public Health England still exists. There were comments made at the time by the then Secretary of State that this would now be a UK-wide body and would therefore override Public Health Scotland. Since the Minister raised this matter, I would be grateful if he could clarify, because that is exactly the nub of the issue, whether they are executive agencies or arm’s length bodies: it is suddenly enforcing a change in structure on the devolved Governments, when our Public Health Scotland is totally integrated with our health service.

[Edward Argar]

The hon. Lady makes a couple of points there. First, on the transition with Public Health England, to avoid a cliff edge—in the context of some of my conversations with the hon. Member for Nottingham North about different aspects of policy, that is perhaps not the best word—in the transition between two organisations, we have had for some months parallel running of the two. I believe, relying on my memory, that Public Health England finally transfers all its functions and ceases at the end of this month, and then we will see that transition. We have both in being for the time being, to ensure smooth operation of the actual functions they perform.

My understanding of the hon. Lady’s specific point about the public health arrangements that work in Scotland and that are a matter for the Scottish Government is that those relationships and that way of working will be able to continue. However, we saw in the European Union (Withdrawal Agreement) Act 2020 and the withdrawal agreement a way of working regarding the health security provisions that has a UK approach to working but fully involves each of the devolved Administrations, because we recognise that the threats are national—as in four nations—and we have seen that diseases and public health threats do not stop just before they get to Berwick, and vice versa. Therefore, we are keen to look at this in a four-nations way, and we have just been looking with the Scottish Government at the public health framework and how we work with it.

I am trying to reassure the hon. Lady that there is no intention to undo what works, but there is a recognition of the need for us to continue to work as four nations together on this. I hope she will be reassured that that helps to respect the devolution settlement; I suspect she may wish to probe me further in future debates, but that, of course, is what we are here for. I encourage hon. Members not to press their amendments to a Division.

Question put, That the clause stand part of the Bill.

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[The Chair]

With this it will be convenient to discuss the following:

Amendment 127, in schedule 13, page 204, line 7, leave out “Secretary of State” and insert

“Chief Executive of NHS England”.

This amendment would give the Chief Executive of NHS England the power to appoint members and the chair of HSSIB.

Amendment 128, in schedule 13, page 204, line 18, leave out

“with the consent of the Secretary of State”.

Amendment 129, in schedule 13, page 204, line 21, after “HSSIB” insert

“, one of whom is to be the Chief Finance Officer,”.

Amendment 130, in schedule 13, page 204, line 32, leave out “The Secretary of State” and insert

“A majority of non-executive members following a vote”.

This amendment would give a majority of non-executive members the power to remove a person from office following a vote.

Amendment 131, in schedule 13, page 204, line 37, leave out sub-paragraph (4).

This amendment would remove sub-paragraph 4 from schedule 13 of the Bill, which confers powers on the Secretary of State to remove a person from office in HSSIB.

Amendment 132, in schedule 13, page 206, line 12, leave out “Secretary of State” and insert

“Chief Finance Officer of HSSIB”.

This amendment, together with amendments 133, 134, 135 and 136, would give the Chief Finance Officer of HSSIB power over remuneration for non-executive members of HSSIB.

Amendment 133, in schedule 13, page 206, line 14, leave out “Secretary of State” and insert

“Chief Finance Officer of HSSIB”.

See explanatory statement to Amendment 132.

Amendment 134, in schedule 13, page 206, line 16, leave out “Secretary of State” and insert

“Chief Finance Officer of HSSIB”.

See explanatory statement to Amendment 132.

Amendment 135, in schedule 13, page 206, line 19, leave out “Secretary of State” and insert

“Chief Finance Officer of HSSIB”.

See explanatory statement to Amendment 132.

That schedule 13 be the Thirteenth schedule to the Bill.

[Edward Argar]

I will endeavour to make progress before the Division in the House. Clause 93 is the first clause in part 4, which establishes the health services safety investigations body. This new body will build on the work of the Healthcare Safety Investigation Branch, which became operational in 2017 as part of NHS Improvement. Part 4 makes provision to establish an independent statutory body to investigate qualifying incidents that occur in England during the provision of healthcare services that have or may have patient safety implications.

Crucially, HSSIB’s investigations and reports are about learning from incidents across the healthcare landscape and will help to foster a strong learning culture. We want to ensure that we learn from what has gone wrong before, which ultimately will ensure that patients get the best care, which they rightly deserve. HSSIB’s investigations will not assess or determine blame, civil or criminal liability, or whether action needs to be taken in respect of an individual by a regulatory body. Instead, its investigations will identify risks to the safety of patients and address these by facilitating the improvement of systems and practices in the provision of healthcare services in England.

There have been calls for some time to put the Healthcare Safety Investigation Branch on an independent statutory footing. We previously introduced proposals to do that in the Health Service Safety Investigations Bill, which was introduced in the other place in October 2019. Unfortunately, that Bill did not progress past Second Reading because Parliament was dissolved for the general election. However, the Government are committed to reducing patient harm by improving the quality of health investigations and developing a culture of real learning. We are using this Bill to deliver that world-leading innovation in patient safety. I will take this opportunity to pay tribute to my right hon. Friend the Member for Mid Bedfordshire (Ms Dorries) for all the work she did on this when she was Minister of State for patient safety.

Clause 93 specifically establishes HSSIB as the body to take forward systemic patient safety investigations. It also gives effect to schedule 13, which sets out arrangements for HSSIB’s constitution and governance, and provides details of its membership and its financial and reporting obligations. I am proud that this will be one of the first independent healthcare bodies of its kind in the world carrying out systemic investigations. The independence of the new body’s investigations will give the public full confidence in its investigation processes and its ability to deliver impartial conclusions and recommendations. The aim will be to learn and not to blame.

On the practical side, schedule 13 also allows the making of transfer schemes to ensure a smooth transition when HSSIB is set up. The intention is that following the NHS England and NHS Improvement merger, which we have discussed earlier, the functions of the current Healthcare Safety Investigation Branch will sit with NHS England until such time as HSSIB is established as a separate statutory body, so the transfer scheme provisions in the schedule provide for a transition from NHS England to HSSIB.

The amendments that have been tabled focus largely on the membership and responsibilities of, and the appointments process relating to, HSSIB’s board. Amendment 127 would remove the responsibility of the Secretary of State to appoint the chair and non-executive members to the board, and would instead give that responsibility to the chief executive of NHS England.

HSSIB will be a non-departmental public body and will therefore meet the criteria to be added to the Public Appointments Order in Council, which lists those bodies whereby the non-executive member appointments are bound by the Cabinet Office’s governance code on public appointments, which are regulated by the Commissioner for Public Appointments. It is standard practice to have the Secretary of State appoint non-executive board members to a public body. Making that the responsibility of the chief executive of NHS England could bring into question HSSIB’s independence, especially when it is investigating issues that might involve or lead to recommendations for NHS England. That would risk reducing public trust in HSSIB, which I think we all agree will be paramount in gaining public support for the work it does, and it could undermine the acceptance of its recommendations.

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[The Chair]

I remind hon. Members that with this we are considering amendments 127 to 135 and schedule 13. I call the Minister to carry on from where he left off.

[Edward Argar]

I am grateful to you, Ms Elliott, and I challenge colleagues to remember what I was saying just before the Division.

On amendment 130, having the non-executive members remove one of their own members—essentially, their colleague—could very likely create a conflict between board members, because I would not expect that to be an easy decision for any of them. Of course, we want an effective, cohesive and united board with the Secretary of State stepping in only when a real issue needs to be addressed.

We would not expect those powers to be used very often, and ideally they would never need to be used. However, it is important to have those safeguards, which would allow action to be taken quickly should there be concerns about a non-executive member of the board.

Finally, I will speak about amendments 129 and 132 to 135, which look to mandate the creation and role of a chief finance officer for HSSIB. If I have understood the wording of amendment 129 correctly, the intention is to ensure that the chief finance officer of HSSIB is one of the executive members. As HSSIB is an independent NDPB, the recruitment of the executive members will be led by the non-executive members. It will be for them to take decisions about the composition of the executive members of the board, taking into account the balance of skills and experience required to lead the organisation in its vital work.

If the non-executive members were of the view that a chief financial officer’s skills would help the board’s work and complement the knowledge, skills and experience held by the existing non-executive and executive members, this would be a board role. There is nothing in the Bill, as it is currently drafted, to prevent the non-executive members from doing that.

It will be important for HSSIB, as an independent body, to be fully on top of finance and accounting decisions, and that is already reflected in the Bill. The constitution, which is set out in part 1 of schedule 13, includes a number of requirements in relation to funding and finance to ensure that that is managed correctly by HSSIB. For example, paragraph 12(1) of schedule 13 expressly states that HSSIB must exercise its functions economically, as well as effectively and efficiently. Paragraph 16 relates to the use of income from charges, and paragraphs 18 and 19 relate to the accounts of HSSIB. It is for HSSIB to decide how best to ensure it fulfils these duties, but I hope it is reassuring that the constitution underlines the importance of running HSSIB economically and the requirements for annual accounts, as would be expected of a public body.

Amendments 132 to 135 look to remove from the Secretary of State the responsibility to set the remuneration for non-executive members of HSSIB, and to give that power to the chief finance officer instead. The amendments present some challenges, which I will outline here.

In respect of public appointments, the governance code for public appointments states that

“Ministers must be consulted before a competition opens to agree the job description for the role, the length of tenure and remuneration.”

A number of non-departmental public bodies follow this code, such as the Care Quality Commission, the Human Tissue Authority and the Human Fertilisation and Embryology Authority, to name a few. There is no reason why the arrangements for HSSIB should differ from those of other non-departmental public bodies.

We wish to ensure the independence of HSSIB’s board, and I know that hon. Members feel strongly about that, too. Giving a chief finance officer control over the remuneration of non-executive members means that the Secretary of State and, via the Secretary of State, Parliament would not have full oversight of how public money is spent. Although I am sure that the non-executive board members would act with the utmost integrity, we must ensure that the legislation supports them to do so as far as possible, and that we do not deviate from standard practice in public appointments. For those reasons, I ask hon. Members not to press their amendments, and I commend this clause and schedule to the Committee.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

It is a pleasure to see you in the Chair this afternoon, Ms Elliot. I am grateful to the Minister for setting out the Department’s position on the clause and the accompanying schedule. The proposed amendments relate to the establishment of HSSIB. As he has said, it builds on the work carried out by the Healthcare Safety Investigation Branch, which was established without statutory basis in 2016 and became operational in April 2017.

The Public Administration and Constitutional Affairs Committee identified in April 2016—more than five and a half years ago—that this legislation was necessary, and I am pleased to see that it is finally being brought forward. The Health Service Safety Investigations Bill, which was introduced in the House of Lords in 2019, did not proceed because of the calling of a general election, on which the Opposition do not wish to linger.

As other members of the Committee may have done, I have raised with the Healthcare Safety Investigation Branch both system-wide issues and individual matters on behalf of constituents. My experience has suggested that there are wider issues that need investigating, so we welcome this opportunity to discuss and set out in legislation the powers and remit of the body.

Unfortunately, some details are lacking from part 4 of the Bill, which we think represents a missed opportunity to set them out a bit more precisely. We should not miss the opportunity to ensure that this body can truly improve healthcare, as we will demonstrate with our amendments, notwithstanding what the Minster has said. We are trying to do our utmost to ensure that HSSIB has the independence, the resources and the influence it requires to operate at its maximum potential. Lessons must be learned from the experience of the Healthcare Safety Investigation Branch, which has undoubtedly had some impact. However, in many ways, its work has not had the impact it might have had, because its reach has been limited for a variety of reasons that are entirely out of its control.

Keith Conradi, the chief investigator of the Healthcare Safety Investigation Branch, touched on that during the second sitting of this Committee, when he commented on how the branch had been operating in shadow form, without any real powers. We have discussed the powers of HSSIB, especially in terms of access to information and compelling people to co-operate with investigations. However, it is what happens after the final report, and ensuring that those recommendations are acted on, that will have the largest impact on patient safety and driving through improvements.

A recent example of the work of the Healthcare Safety Investigation Branch is its investigation into wrong site surgery, through the wrong patients being identified in outpatient departments. The reference for the investigation was evidence from the NHS national reporting and learning system that the incorrect identification of patients is a contributing factor in patients receiving the wrong procedure. The safety recommendation to NHS England was to lead a review of risks relating to patient identification in out-patient settings, and to assess the feasibility to enhance or implement systematic controls such as technological options or the use of the NHS unique identification number. NHS England responded by stating that the work would require an understanding of the true scale and impact of the risks through observational study, which would be resource heavy. It said that, without evidence of the risk, that would did not justify the cost. Hence, the recommendation was considered but not acted on.

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Basically, we are left to trust the Government and the individual to abide by the codes, and we have to trust the Cabinet Office to make sure that code is implemented, but we have no evidence to suggest that that will be the case. I am not sure what the Government will do about that, apart from maybe try to be a bit better and abide by their own codes and standards, laid down two decades ago, about how people should behave. The Minister is an honourable man; we cannot always choose who we work with, but he needs to take those points particularly seriously. I am sure that he will be subject to more scrutiny in the Lords and elsewhere about standards and this appointment. I hope that he can give us some assurance that the Department of Health will be abiding by the principles of the Cabinet Office codes far more strongly in the future than it has in the past.

[Edward Argar]

We have had the opportunity in this clause and these amendments to range more broadly in setting out the landscape and issues relevant to our debates on the forthcoming clauses. A number of questions were raised in the context of this debate, and I will aim to answer as many as I can.

The shadow Minister, the hon. Member for Ellesmere Port and Neston, talked about budgets and resourcing in his opening remarks. As he will be aware, schedule 13 provides for funding to be given as the Secretary of State thinks appropriate. We are clear that we want HSSIB to be adequately resourced to exercise its functions, but it is right that when a public body is spending public money, there is democratic oversight, because that money comes from the public purse. We are determined to ensure that it has adequate resourcing, but I believe it is right that the Secretary of State plays a key role.

The hon. Gentleman also asked, I think—he can shake his head if I misunderstood what he said—about the impact of any recommendations or decisions on individual trusts or the NHS, and their ability to act on them without it disproportionately affecting their resourcing and their plans. We are confident that, as we have seen with previously identified failings—not necessarily through this process, but in the past—trusts are able to address those recommendations. However, in cases where there is a major incident leading to significant reform, as has happened—I suspect we all hope that it does not happen again—resources can be made available to address a particular systemic failing across a much broader landscape. I cannot pre-empt decisions made by the Secretary of State or the Chancellor of the Exchequer in those circumstances, but I hope that the principle of adequate resourcing is established, as we all want.

The shadow Minister also expressed concerns that, at their heart, were about the organisation either not being, or being perceived to not be, sufficiently independent of the Secretary of State, because of the nature of the governance arrangements put in place around it. I do not think that is the case. We are adopting a standard approach to managing public appointments to a body of this sort. I would be more concerned if the NHS were responsible for appointments or funding, because although I do not want to pre-judge its work, I expect that HSSIB will more frequently be looking into and reporting on NHS bodies.

On some of the specific points on the role of the Secretary of State and the appointment of non-executive members and the chair of the board, I can give reassurance that that will be managed in line with the Government’s code for public appointments, regulated by the Commissioner for Public Appointments. I hear what the hon. Member for Bristol South says; she will not be surprised that I will avoid being drawn on individuals, but she made her point and made it clearly.

Regarding the chief investigator particularly, it would be normal for boards to have more non-executive than executive members—we see that in both the private and public sectors—and that ensures that one-step removal from the executive operation the ability to challenge within that board. That is reasonable. The chief investigator is a key figure in this body, and I do not believe that the approval by the Secretary of State can call into question the independence of the HSSIB. The Secretary of State will not appoint the chief investigator—that is the responsibility of the non-executive board—but it is right that the Secretary of State approves that appointment, ensuring the route of accountability. I can go a little further and offer some reassurance to the shadow Minister, in that I envisage the chief investigator appearing before the Health and Social Care Committee—the most appropriate Select Committee—before the appointment is made.

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Question proposed: That the clause stand part of the Bill.

[Edward Argar]

This clause sets out what HSSIB will be doing. Its remit will be to investigate qualifying incidents in England occurring in the NHS and also in the independent sector. Its aim is to improve learning from events of harm and reduce the risk of reoccurrence for future patients across the whole health system. The Bill defines qualifying incidents as incidents that occur in England during the provision of healthcare services and that have or may have implications for the safety of patients. Based on its findings, it will be for HSSIB to recommend improvements to systems and practices.

I want to come on to an important point about the role of investigations. The aim of the investigations will not be to apportion blame but to foster a strong learning culture and make sure that, ultimately, patients get the best care they rightly deserve, wherever they are patients. For that reason, we have specified that HSSIB’s investigative function is not for the purposes of assessing or determining blame, civil or criminal liability or action to be taken by a professional regulator in respect of an individual. That important point is reflected throughout the HSSIB provisions, including in respect of the requirements and admissibility of HSSIB reports. I will expand on those points when we reach those specific provisions. I hope that being clear on those points in legislation will foster a culture of openness and continuous improvement and learning, so that the whole of society benefits.

[Justin Madders]

As we have heard, the clause covers investigations of incidents with safety implications, confirming that qualifying incidents must take place in England during the provision of healthcare services, with the investigations identifying and addressing risks by

“facilitating the improvement of systems and practices”.

I do not know whether the Minister can neatly sum up what “facilitating” actually means in this context, but as we will cover in other clauses, there are certainly some concerns about how exactly improvements will be delivered—some have been touched on already.

Keith Conradi confirmed during his appearance before the Committee that currently, recommendations are monitored “informally” by NHS Improvement, and he suggested that a “pan-regulation-type body” might be needed to consider

“whether the outcome…mitigated the patient safety risk.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 61, Q79.]

That sounds like a suggestion that needs consideration, because it would ensure that recommendations made by HSSIB and the responses from NHS England, or whichever appropriate body is required to respond, are acted on and assessed.

If we are to improve patient safety, it seems unusual not to have any provision or mechanism to follow up on recommendations. Earlier, I referred to the recent investigation into the identification of outpatients, where, sadly, the recommendation was not acted on, largely because of the cost of complying with it. The Bill does nothing to clarify how funding will be made available to act on recommendations from HSSIB on improving patient safety. What mechanism will be in place for when recommendations are not followed, or for when they are followed but do not have the desired effect?

We must avoid the scenario in which HSSIB is essentially a toothless body whose well-intentioned recommendations are simply kicked into the long grass. In response to the Select Committee’s investigation into the safety of maternity services in England, the Healthcare Safety Investigation Branch stated that

“for various reasons, some trusts have struggled to recognise the information we are presenting to them or to prioritise the actions necessary to address the risks. We understand the many pressures on trusts and that maternity services are a product of systems not all within the full control of individual organisations; sometimes solutions do not appear easily achievable.”

In a nutshell, the Bill fails to set out how that very real problem will be addressed under HSSIB, which demonstrates why we have been arguing for further consideration of how monitoring and assessment of recommendations is to be delivered.

--- Later in debate ---

[Edward Argar]

I am grateful to the shadow Minister for his comments, at the heart of which was the question of who is responsible for implementing HSSIB’s recommendations, and how we can ensure that the wish for learning and improvement, which is the fundamental reason why we are doing this, has the desired effect.

We are clear that taking on the recommendations and implementing the recommended changes will be the responsibility of the organisation to which they are addressed. The Bill sets out what should happen when a report from HSSIB makes recommendations for future action. The addressees of the report must generally provide a response to the recommendations within the timeframe specified by HSSIB. That is not dissimilar to the way we are required to respond to reports by Select Committees, although occasionally we probably need to be a little bit more timely with one or two of those. The principle is the same: the recommendations are there and the body to which they apply will respond to them.

That response should set out the action that the addressee will take in relation to the recommendations. HSSIB may publish the responses to its recommendations. It is it right that HSSIB, as the independent body, may make that decision, because there may be reasons why it determines not to in a particular case. Without wishing to influence HSSIB, I hope that there will be transparency, where possible, in the recommendations and in the responses to them. I think that will foster learning across the system, rather than simply in the organisation within the scope of the recommendations.

I believe that is the appropriate approach and that it will see improvements, not least because I think those public bodies wish to improve. I hope that the culture created around HSSIB will continue to foster a willingness to learn and improve. I hope that offers some reassurance.

Question put and agreed to.

Clause 94 accordingly ordered to stand part of the Bill.

Clause 95

Deciding which incidents to investigate

[Justin Madders]

I beg to move amendment 101, in clause 95, page 86, line 37, at end insert—

“(10) Following any direction under subsection (2) the HSSIB may—

(a) request additional funding in order to carry out the investigation; and

(b) at the discretion of the chief investigator, decline to carry out the investigation.

(11) Following any direction under subsection (2) the Secretary of State—

(a) must have no further involvement with how the investigation is pursued;

(b) may not give a direction which directs the outcome of an investigation; and

(c) must have no involvement in the formulation of the investigation’s recommendations.”.

This amendment would ensure that HSSIB would maintain its independence following any direction from the Secretary of State to carry out an investigation and can request additional funding in order to carry out the investigation.

I hope my voice holds out, although I hope I will not be speaking for quite as long on this amendment. It addresses a familiar theme. It seeks to preserve the independence of HSSIB’s decision making, with particular reference to clause 95 (2), which gives the Secretary of State the power to direct HSSIB to carry out investigations.

The Joint Committee on the Draft Health Service Safety Investigations Bill raised concerns about the role of the Secretary of State in making representations about investigating an incident. The Government agreed to remove the mention of the Secretary of State to make it clear that the role would not amount to a direction by a Minister. In that light, it is difficult to understand why the Government have now decided to install a power on the Secretary of State to direct investigations. It is questionable whether such a power is even needed, if HSSIB falls into line with the practice of the Healthcare Safety Investigation Branch, which can accept referrals from anyone. If the Secretary of State has concerns relating to patients, he should surely be able to put those matters to HSSIB anyway, as anyone who has safety concerns can. HSSIB can then reach a decision based on the criteria that it has set out on whether to investigate, which we will return to later.

If HSSIB becomes the investigatory body for the Secretary of State, depending on how often the power is used, that could downgrade other safety concerns and also erode public, patient and staff confidence that HSSIB is a truly independent body. The Joint Committee on the Draft Health Service Safety Investigations Bill commented:

“Our witnesses were united in stating that HSSIB will be neither trusted nor effective unless it is, and is seen to be, independent of both health service bodies…and the Department of Health and Social Care. Only this will provide confidence that HSSIB will neither cover up failures by clinicians and trusts nor conceal issues that might cause political embarrassment.”

By allowing the Secretary of State the power to direct the investigations, trust in HSSIB is brought into question. The amendment would make it clear that if the power is needed—the Minister can try to convince us that it is—HSSIB could request additional funding in order to carry out that investigation, and the chief investigator would have the power to decline to carry out the investigation. It would also ensure that if the investigation does proceed, the Secretary of State has no further role once it has started. If this power is needed, we think the amendment would create sufficient safeguards to ensure the independence of HSSIB, by ensuring that the chief investigator cannot have its own judgment and decisions superseded by the Secretary of State.

[Edward Argar]

I am grateful to the shadow Minister for bringing this discussion before the Committee today. [Interruption.] I will talk for a little while to allow him enough time to have a glass of water to try to preserve his voice and mine for another few hours at least. As he set out, the amendment seeks to ensure that HSSIB would be able to make its own decision on whether to pursue an investigation requested by the Secretary of State and ask for funding; it would also ensure that if an investigation went ahead, the Secretary of State would have no influence on the detail of that investigation.

I reassure the hon. Gentleman that, as I said earlier, we remain fully committed to the independence of HSSIB, which is of course the reason why we want to establish it as a non-departmental public body with its own statutory powers. Under our approach, the Secretary of State would be able to direct HSSIB to carry out an investigation, but only if there has been an incident that has caused particular concern. The power to direct at subsection (2) is only in relation to carrying out an investigation; it is not about directing the outcome for an individual. That is an important distinction—we can ask them to do it, but it is not about directing the outcome. I believe that is right for the Secretary of State with responsibility for the health of the nation to have a power to direct the carrying-out of an investigation, so that he is able to respond to emergent or ongoing safety priorities or issues of concern, asking that they be considered.

The measure will ensure effective and proportionate accountability between the Department and its arm’s-length bodies, and between the Department and the House and the other place. However, while the Secretary of State may request an investigation, as I have said, he cannot direct the body on how to conduct any particular investigation and will have no role in it, as he does not have any such power. I hope that offers some reassurance to the shadow Minister. The measure therefore does not encroach on the independence of HSSIB’s findings, which are one of the key concerns that the amendments seek to draw out or shine a light on, so I hope I have provided some reassurance.

In addition, should HSSIB wish to discontinue an investigation, it may determine to do so, setting out the reason why it will not be investigating an incident. That would include any investigation, including one requested by the Secretary of State. HSSIB could discontinue an investigation, but would have to explain its thinking, which is not an unreasonable balance to seek to strike.

To turn to the question of funding, the amendment seeks to ensure that, in the case of a request by the Secretary of State to carry out an investigation, HSSIB may ask for additional funding. We have estimated, in our current analysis of workloads, HSSIB is likely to carry out up to 30 investigations a year, which allows sufficient flexibility to ensure that in the event that an investigation requested by the Secretary of State goes ahead, adequate resources remain.

On the process for the Secretary of State requesting an investigation, the limitations on the Secretary of State’s ability to be involved in the investigation, and the ability of HSSIB to determine whether it will pursue an investigation further, I hope that I have offered sufficient reassurance to the Committee. Therefore, I hope that the shadow Minister will consider withdrawing his amendment.

[Dr Whitford]

I want to raise with the Minister subsection (5), which calls on HSSIB to put out a statement on the issues that it is investigating with regards to an incident. However, that is right at the start of an investigation. Is he not concerned that, putting out a public statement of what the issue is at a point when no one has yet got to the bottom of that issue might be putting the cart before the horse? HSSIB might therefore twist the whole investigation into what its initial preconceptions are, instead of finding out the underlying cause.

--- Later in debate ---

[Edward Argar]

I take the hon. Lady’s point. That is not the intention, to prejudge or predetermine. It is what is sought with the investigation. I take the point about the language, which is important. The measure in essence requires HSSIB to notify the public that it is looking into a particular circumstance or complaint. I think “issues” still works, but I take her point that we cannot prejudge, and nor should HSSIB, where its investigation is going, which rabbit hole it will take it down, what it might find, but that is a point of language. I hope that I have reassured her, but I accept that we always need to be careful about the language.

[Justin Madders]

I am grateful for the Minister’s investigation, but I am still not clear why an additional power needs to be set out in the Bill. My understanding is that anyone can make a referral anyway, so why this has to be set out in black and white is a mystery to me. Despite what the Minister has said, it is important to have the amendment in the Bill, because it will give patients and the public confidence that there will not be interference or challenges that undermine the notion of independence. We will press the amendment to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Justin Madders]

I beg to move amendment 122, in clause 95, page 86, line 37, at end insert—

‘(10) The Secretary of State must by regulations lay out a process to challenge a decision made by HSSIB not to investigate a qualifying incident.”

This amendment would require the Secretary of State to put in place a mechanism through which any decision by HSSIB not to investigate a qualifying incident could be challenged.

We have had some discussion about the matters that may be chosen by HSSIB to be investigated, but it is probably more pertinent for the purposes of considering this amendment that we discuss what happens when HSSIB decides not to investigate. Amendment 122 would require a mechanism to be put in place so that any decision by HSSIB not to investigate a qualifying incident could be challenged. If the independence of the body and faith in its purpose are to be protected, it is essential that there is a mechanism whereby HSSIB decision making can be challenged. That is especially true when we consider the role of families in the investigation process.

My experience with HSSIB came when a patient safety concern was raised by a constituent, and after that concern was not investigated it brought home to me the distress and feeling of being let down by a refusal to investigate. Without a mechanism to challenge such a refusal, faith in HSSIB could be damaged by effectively creating a dead end to further inquiries.

I should point out that in the particular circumstances that I have just referred to HSSIB agreed to a meeting and it set out in more detail its reasons for not investigating, but that might not be possible in all situations. That meeting aided my constituent’s understanding of why their request was refused, but it did not actually mean that they agreed with HSSIB’s decision. Consequently, our view is that there needs to be some sort of process—we do not intend to set out today what it should be—set out in regulations to ensure that those who make a referral have the opportunity to articulate their concerns if that referral should not go on to be investigated. In conclusion, if the purpose of HSSIB is to improve patient safety, we should ensure that collaborative approaches are enshrined in legislation, and we believe that a mechanism along the lines of what we have set out in the amendment would go some way towards achieving that.

[Edward Argar]

I am grateful to the shadow Minister for setting out the background to his amendment, with which he seeks to ensure that a process is set out in regulations to allow the challenging of a decision by HSSIB when it has decided not to investigate a qualifying incident. However, I have to say that I do not think that this measure would necessarily be proportionate. The Bill already sets out, in clause 95 (8) and (9), that where HSSIB makes a decision not to pursue an investigation, it may explain the reasons behind that decision and communicate those reasons to those people with an interest.

It may be that the Government or others want to understand more about how HSSIB reached a decision, but setting out within regulations a fixed process to challenge HSSIB’s decisions would again risk being disproportionate. If HSSIB discontinues an investigation that it has started, then it must publish a statement that reports that it has discontinued the investigation and give its reasons for doing so. I believe that gives a high level of transparency in that circumstance.

I do not believe that it would be proportionate to take the same approach when an investigation has not even been commenced. The key theme running through these discussions, which we have heard about in our consideration of previous clauses, is the independence of HSSIB, and its ability to determine these matters and make its decisions in an independent way. I fear that this amendment sits slightly uneasily with that principle.

As I said, we intend HSSIB to carry out an estimated 30 investigations a year, so there is not the intention, even at the outset, that HSSIB should investigate all qualifying incidents. It is for HSSIB to determine that, so I do not think it would be the best use of HSSIB and its expertise to go through a formal process to explain why it has determined not to investigate incidents. We want HSSIB’s resource to go into investigating the qualifying incidents that it has determined to investigate.

I suspect we will return to this theme again in the course of our discussions, but I believe it is important that, as the expert body, HSSIB is given the autonomy to make its own decisions about what to investigate. Any such decision would of course need to stand up to scrutiny, and of course, as part of our own arrangements, we will need to ensure consistency, while at the same time ensuring that HSSIB’s autonomy is respected as it should be. That is a difficult balance, but it is one we need to ensure we strike. I therefore encourage the shadow Minister to not press his amendment to a Division.

[Justin Madders]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

During our debate on amendments 101 and 122, we discussed a number of the key themes that run through clause 95. This clause sets out that, as an independent body, HSSIB will be able to decide its own priorities and determine which qualifying incidents it investigates. We would expect this to be the result of referrals it receives, but also its own intelligence. The clause also gives the Secretary of State powers to direct HSSIB to carry out an investigation when, for example, there has been an incident that has caused a particular concern, and it allows the Secretary of State to request a report to be produced by a specified date.

I appreciate that, as we have heard today, some could argue that the clause could be perceived to encroach on the independence of HSSIB. I hope I set out in my earlier remarks why I do not take that view, and why I believe it is right that the Secretary of State, who has responsibility for the health of the nation, has such a power and is able to respond to emerging, ongoing safety priorities or issues of concern. I believe that this measure strikes the right balance, providing the Secretary of State with that flexibility while ensuring effective and proportionate accountability. HSSIB is not bound to follow the instruction, but it is bound to explain why it deems it unnecessary, or why it has determined it should not pursue a particular investigation request.

[Edward Timpson (Eddisbury) (Con)]

As a point of clarification, I notice that clause 95(2) gives the Secretary of State the power to direct both an individual investigation and

“qualifying incidents that have occurred and are of a particular description”,

but I wonder whether HSSIB, off its own bat and as part of its independent investigation, is able—as we were when I chaired the national Child Safeguarding Practice Review Panel—to look at a number of incidents in which there is a theme that it would want to investigate. For example, we looked at a number of cases of co-sleeping with babies, which gave us an opportunity to look at that issue in the round, rather than individual cases. Is that something that HSSIB will also be able to do?

[Edward Argar]

I am very grateful to my hon. Friend for making that point, and I put on record my gratitude—our gratitude—to him for his work, which he alluded to. He is right: one of the key things we would hope HSSIB would seek to do, where it was supported by the evidence, is to join the dots where there is a systemic issue—not just in an individual trust, for example, but an underlying issue for the Department or the NHS as a whole—and be able to reflect that in its decisions on what to work on and how to broaden the scope if it deemed that to be necessary.

Clause 95 provides that whenever HSSIB decides to undertake an investigation, it is required to make a public announcement, setting out briefly what it will be investigating and what it expects to consider during the investigation. I take the point made by the hon. Member for Central Ayrshire: that announcement should give the public an indication of the fact that something is being looked at, but it should not limit which leads—for want of a better way of putting it—HSSIB decides are worthy of investigation and of following. HSSIB will also be able to get in contact in advance with anyone who it thinks may be affected by the investigation. This may, for example, include patients, families or any individual who has referred the incidents to HSSIB, a trust or other healthcare provider.

Finally, there may be occasions when HSSIB decides not to investigate an issue or to discontinue with an investigation. Clause 95 covers those scenarios. If HSSIB decides to discontinue the investigation of an issue, we have set out that it should make a public statement explaining the reasons for doing so. If HSSIB decides not to investigate a qualifying incident, it will be able to give notice of the decision to those who it considers might be affected by it and to explain the reasons to those who have an interest in it.

I hope colleagues on the Committee will agree that the provisions are necessary for HSSIB to be in control of the qualifying incidents and to investigate and to ensure transparency about what investigations are being carried out or discontinued by the agency. We expect that the Secretary of State’s power of direction will be exercised extremely sparingly but it can ensure that crucial patient safety issues can always be focused on where appropriate. I therefore commend the clause to the Committee.

[Justin Madders]

These processes will be critical if HSSIB is to function properly. The Minister has had three or four attempts to explain why the Secretary the State needs the power to direct when he can make referrals anyway, but we are still to understand why that power needs to be there. If the Secretary of State asked HSSIB to undertake an investigation, it would jolly well get on and do it. That aside, we will not be voting against the clause.

Question put and agreed to.  

Clause 95 accordingly ordered to stand part of the Bill. 

Clause 96

Criteria, Principles and Processes

--- Later in debate ---

[Edward Argar]

Clause 96 outlines that HSSIB must determine and publish certain criteria, principles and processes, including the criteria that it will use when deciding which qualifying incidents to investigate. The hon. Gentleman’s amendment would require HSSIB specifically to consult trade unions and patients when considering or reviewing criteria, principles and processes. I am not convinced that that is the most appropriate approach.

The clause, which I suspect we will turn to immediately after the debate, includes a number of references to “patients and their families”. HSSIB will need to set out how it will involve them in investigations as far as is reasonably practicable. It will also need to ensure that such processes are easily accessible and understood by families and patients.

I am sure that families and patients will be very much part of HSSIB’s considerations, as they are for the current Healthcare Safety Investigation Branch. However, the decision about who is consulted is best left to HSSIB, which will be best placed to determine who is appropriate. Again, that goes to the point of independence and flexibility to follow the evidence and determine where it thinks is the most appropriate place to go.

Similarly, on trade unions, as I have said in the Committee, while on occasion I suspect I may not agree with them, I recognise the vital role that they play in our country’s democracy. Again, it is important that HSSIB can judge when or whether to consult with them, depending on the issue involved. An approach where some groups are specified in legislation as needing to be consulted but not others may give the impression that some organisations or groups carry greater weight. It is important that, as HSSIB looks at each qualifying incident, it can judge what is the most appropriate balance for consultation.

The amendment would also mean that specific groups would always need to be consulted when it may not be appropriate in each case, dependent on the circumstances under consideration. I therefore think it is right that it will be for HSSIB to make decisions as to who it considers appropriate to consult. I hope that, in the spirit of striking the right balance in preserving HSSIB’s independence, the hon. Gentleman might consider withdrawing his amendment.

[Justin Madders]

The Minister is right; it should be up to HSSIB to decide who it consults. That is why it is seems superfluous to have a requirement in the clause that it must consult the Secretary of State. However, I cannot imagine a circumstance in which HSSIB would not want to consult him or her. Indeed, I cannot imagine patient groups and trade unions not being part of the conversation in most circumstances. We think we will need to keep an eye on this as matters progress. However, we have made our point and will not press the amendment to a vote, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

Clause 96 provides that HSSIB determines and publishes the criteria it will use when deciding which qualifying incidents to investigate, as well as the timescales by which investigations will be completed. The clause therefore ensures that HSSIB will be transparent in how it will work and will have the flexibility to determine the most appropriate investigation methods depending on the type of inquiry. The current body, the Healthcare Safety Investigation Branch, has a wealth of experience and has been conducting investigations since 2017, so it already has a solid base to build on to inform the criteria, principles and processes for its future investigations.

--- Later in debate ---

[Justin Madders]

I beg to move amendment 124, in clause 97, page 88, line 15, leave out subsection (7) and insert—

“(7) The final report must be sent to the Secretary of State.

(8) Within 12 months of each final report being sent to the Secretary of State under subsection (7), a report must be laid before Parliament setting out the steps the Secretary of State has taken as a result.”.

The amendment seeks to ensure that each investigation report produced by the HSSIB is sent to the Secretary of State, who must report to Parliament on what steps have been taken as a result.

The clause deals with the final reports of HSSIB, which essentially will be about the manner in which improvements to systems and practices can be facilitated by the body. While the provision requires a final report to be published, only in subsection (7) is there a requirement for the report to be sent to the Secretary of State, and only in those cases where a direction has been given by the Secretary of State to investigate. Given the role of HSSIB, and to ensure that its functions are met, the amendment would require all final reports to be sent to the Secretary of State, who must present them to Parliament within 12 months outlining what steps had been taken. That would offer a safeguard and ensure some oversight from Parliament in considering HSSIB’s effectiveness and the improvements being made on patient safety.

As the Joint Committee on the Draft Health Service Safety Investigations Bill commented:

“There was widespread agreement among our witnesses that there would be more confidence in HSSIB’s independence were it to be accountable to Parliament rather than to the Secretary of State. When asked whether accountability to Parliament might not also be seen as political influence, Professor Toft responded that accountability through a cross-party committee was more likely to inspire confidence than to a single Minister, and that a committee was more likely to scrutinise and not to give directions.”

If there is to be faith in HSSIB, we must heed the Joint Committee’s warnings and ensure that the reporting mechanism is sufficient to ensure confidence in the body and to prevent reports from simply being filed away without scrutiny. I hope that the Minister will agree that confidence in HSSIB and its effectiveness to improve patient safety are integral and that he will support the amendment. There has been a little concern about placing requirements on the Secretary of State throughout proceedings on the Bill, so I hope that a requirement for him to present a report once every 12 months would not be too onerous but will be considered an appropriate and acceptable measure.

[Edward Argar]

Clause 97 deals with HSSIB’s final report following an investigation and sets out what a report should include, such as the overall findings, with analysis of what has happened. If the report concerns an investigation that the Secretary of State directed HSSIB to undertake, HSSIB will be required to send a copy of the report to the Secretary of State. I understand that the purpose of amendment 124 is to require the Secretary of State to consider the report and then report to Parliament within 12 months on what action has been taken as a result. Although I can certainly see that the purpose of the amendment is to ensure transparency, accountability and follow-up, I am not convinced that it is the right way to achieve that understandable and legitimate aim.

We expect HSSIB to conduct about 30 investigations a year, which means that the Secretary of State would need to report on 30 separate reports. I worry that that would be unnecessarily burdensome without delivering significant improvements in patient safety. The final HSSIB report will be published, and we expect that the recommendations will most likely be directed at and actioned by others. Organisations are required to respond to HSSIB’s recommendations, and HSSIB may publish those responses. Therefore, it is not necessary for the Secretary of State to publish an additional report, particularly if there is no action for the Secretary of State to take following HSSIB’s recommendations.

Parliament will be able to use its normal routes to hold Ministers to account and ask what progress has been made following these reports, which of course will be published by HSSIB and open to public scrutiny. I do not consider it necessary for HSSIB to send the Secretary of State a copy of the report, as this will be available to everybody without that additional step. I will therefore encourage the shadow Minister to consider withdrawing his amendment.

[Justin Madders]

The Minister makes some fair points, and we are aware that there are other channels to pursue these matters. However, it did seem a bit incongruous that the Secretary of State would have certain requirements on him if he directed a report but not otherwise. Again, we will see, as the body moves forward over the next few years, whether the scrutiny arrangements in place are indeed effective, so we will not press the amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

Clause 97 deals with HSSIB’s final report following an investigation. It sets out that a report should include the overall findings, with analysis of what has happened. It is important that the emphasis of any such report is put on identifying risks to the safety of patients and addressing those risks by facilitating the improvement of systems and practices in the provision of NHS services or other healthcare services in England. Therefore, HSSIB should include recommendations about how any risks should be addressed. If an investigation has been commissioned by the Secretary of State, HSSIB will be required to send a copy of the report to the Secretary of State.

As I have mentioned previously, we are clear that the purpose of any investigation is to address issues so that we improve patient safety. We want to ensure that the NHS gains as much as it can from all investigations, even if they may not always relate to the NHS. The clause therefore sets out that if the investigation relates to an incident that has not occurred during the provision of NHS services, HSSIB must consider whether the systems and practices in the provision of NHS services could be improved.

The clause also sets out that there should be no assessment of blame, civil or criminal liability, or whether regulatory action should be taken against an individual in the report. That is not the role of HSSIB investigations, and any such assessment would discourage individuals from speaking candidly to HSSIB and could result in lessons not being learned. HSSIB plays a complementary but very different role from the police and regulators. Finally, the clause allows HSSIB to release protected material as part of the report if certain criteria are met.

The purpose of this clause is to set out the expectations on reporting from HSSIB following an investigation. I therefore commend it to the Committee.

Question put and agreed to.

Clause 97 accordingly ordered to stand part of the Bill.

Clause 98

Interim reports

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clauses 99 to 101 stand part.

[Edward Argar]

These clauses continue on the same theme as clause 97 and focus on HSSIB’s reports. I turn first to clause 98, which essentially allows HSSIB to publish an interim report with findings, recommendations and conclusions before the final report. The aim of the interim report is to address urgent risks to the safety of patients or issues that are known early in an investigation, so that swift action can be taken and lessons can be learned across healthcare systems as findings emerge.

Clause 99 requires HSSIB to share a draft of an interim report or a final report with those who are likely to be adversely affected by it, and to seek their comments—that might be NHS staff or other participants. HSSIB may also share a draft report with any other person who they believe should be sent a copy, which might include patients and families. That is to ensure that the interim and final reports are robust and an accurate reflection of what has happened, adding to the rigour of the investigation. It also gives individuals an opportunity to respond to adverse findings in advance of publication of the report.

Clause 100 describes what needs to happen once an interim report or a final report is published by HSSIB. It requires the addressees of the report to provide a response to the recommendations within the timeframe specified by HSSIB, and HSSIB may publish the response. The clause will ensure that it is clear and transparent what actions will be taken to address the recommendations. The clause is drafted to ensure that it does not encroach on the devolved competence of Wales. For example, the duty to respond to recommendations would not apply to any body that is or could be established by the Welsh Parliament. HSSIB may still make recommendations to persons in Wales, and certain types of organisations would be required to respond—for example, a private sector organisation in the health sector. The clause will ensure that there is follow-up to the recommendations in the report from HSSIB.

Finally, clause 101 sets out that unless the High Court makes an order to the contrary, final and interim reports prepared by HSSIB following an investigation, including drafts of the reports, are not admissible in proceedings to determine civil or criminal liability, proceedings before any employment tribunal, proceedings before a regulatory body—including proceedings for the purpose of investigating an allegation—and proceedings to determine an appeal against a decision made in any of the above types of proceedings. That is a demonstration of our commitment, as mentioned before, that we want the investigations to provide useful learning and foster a continuous improvement mindset for the benefit of all patients, rather than apportion blame.

There may be circumstances whereby a person involved in the above proceedings applies to the High Court for the report to be admissible. In that case, it will be for the High Court to determine whether it is in the interests of justice for such information to be made admissible, using the test set out in the Bill: whether the interests of justice are served by admitting the report and outweigh any adverse impact on investigations by deterring people from giving information to inform an investigation and any adverse impact on securing the improvement of the safety of healthcare services provided to patients in England. I suspect this is a theme that we will explore when we debate subsequent clauses and amendments. I know that the hon. Member for Central Ayrshire will wish to explore it further when we reach those clauses.

Clause 101 clarifies the circumstances under which a report can be used in legal proceedings. It is an important element of ensuring that safe space works in the way we intend, strikes an appropriate balance and encourages individuals to speak to HSSIB in a candid way. However, we rightly also provide the High Court order safeguard, so that the interests of justice can also be taken into account where appropriate. We believe that strikes an appropriate balance in this particular context, and that these clauses set out important provisions regarding HSSIB’s reports. I therefore commend the clauses to the Committee.

[Justin Madders]

I am grateful to the Minister for setting out the provisions here, and the ability to produce interim reports under clause 98 is welcome. We can all envisage circumstances in which such action would be of benefit. I note that the requirement to circulate the report to all interested parties in draft form also applies to interim reports. On clause 99, which is about draft reports, I agree that it is right that HSSIB should be able to judge for itself to whom it is appropriate for the draft report to be made available. Under clause 99(4), however, is there a need for comments that are not accepted in the draft stage to be published alongside HSSIB’s response, explaining why those comments have not been accepted at the same time as the final report is published? I do not think that is something that needs to be prescribed in legislation, but it may be something that HSSIB considers doing in some form, and I would be grateful for the Minister’s comments on the desirability or otherwise of such a move.

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[Dr Whitford]

In clause 100 there is discussion about the response to the report, and that is crucial. If this ends up just being a job creation scheme within HSSIB, it will have failed utterly. Having spent more than three decades in the NHS and been involved in multiple designs, redesigns, stakeholder events and so on, a lot of things get filed in that little round filing cabinet in the corner. Therefore, the response to recommendations and their coming into effect is critical.

I was on the Joint Committee on the Draft Health Service Safety Investigations Bill under the hon. Member for Harwich and North Essex (Sir Bernard Jenkin), and we went through this in detail over months. In Scotland, our approach is the opposite. We start at the other end, which is trying to prevent. The Scottish patient safety programme has been working on that since 2007— reducing not just hospital deaths, cutting post-op mortality by 37% within two years of introduction, but expensive morbidity such as pressure sores or wound infections that have an impact on patients and on the NHS.

HSSIB is looking at the other end. Obviously, it does not apply in Scotland, but it is something that I really welcome, and that we will watch with interest. I will not go into disclosure now. That will come later, but not seeing action, as the hon. Member for Ellesmere Port and Neston referred to, with recommendations that have already been made, simply demotivates people to engage in it all. It is critical that we see a response, and that there is a mechanism to see an answer.

The admissibility of the report is also critical if we want staff to be candid, particularly where they may be admitting an error or something that they regret, and there has been a systematic failure of its being prevented. It is often said that we can design safety nets so that an error that someone makes at 2 o’clock in the morning because they are tired can be prevented. We therefore need people to be willing to admit that, and we need those reports not to result in action against them. As we will see when we come on to disclosure, that does not pertain if illegal action has been taken, but I think the two clauses are critical. I do not see in clause 100, or anywhere, what will happen after the reports come out, and how we ensure that it results in an increase in patient safety.

[Edward Argar]

I take the hon. Lady’s point. As I set out in response to earlier amendments and preceding clauses, I believe that we have struck the right balance on the obligation to respond and act, but I acknowledge, as I frequently do in these Committees, her expertise, particularly in this area, having sat on the Committee that previously considered the matter. I think that we have struck the right balance, but I am always happy to reflect further.

I can give the hon. Member for Ellesmere Port and Neston, within bounds, the reassurance, or agreement with what he is saying, that he seeks, with a caveat: I would hope that transparency and publication should be at the fore, but in doing that, and determining the other points that he raised, as he acknowledged that is for HSSIB to reflect on and consider within the context of its independence. I would hope, and expect, that it would consider extremely carefully exactly such points as those that he made, because they sounded like sensible points, as is often the case with him.

Question put and agreed to.

Clause 98 accordingly ordered to stand part of the Bill.

Clauses 99 to 101 ordered to stand part of the Bill.

Clause 102

Powers of entry, inspection and seizure

[Justin Madders]

I beg to move amendment 125, in clause 102, page 90, line 21, leave out subsection (6).

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[Edward Argar]

Clauses 102 to 105 all relate to HSSIB’s powers when conducting investigations. Clause 102 sets out HSSIB’s powers of entry, inspection and seizure. They are important powers for any investigatory body. It is expected, however, that in most cases staff and organisations will co-operate willingly with the HSSIB investigators, and that includes giving consent to the investigators to enter premises and providing them with the relevant documents. Where consent is not given, clause 102(1)(a) gives HSSIB the powers to enter and inspect premises in England. They are similar powers to those held by other investigatory bodies in safety-critical industries, such as the air accidents investigation branch. To use a phrase that I have used far too many times in these debates with the hon. Member for Nottingham North, they could almost be described as a backstop for the body when that is deemed necessary. If the investigator considers it necessary for the purpose of furthering the investigation, it may enter and inspect premises in England, inspect and take copies of the documents at the premises, inspect equipment or other items at the premises, and seize and remove documents, equipment or items unless doing so would put patient safety at risk. The current investigation branch has no power of entry or ability to seize or require information from individuals or other bodies. It has, in some situations, therefore been hampered in its ability to investigate incidents, so we want to ensure that the new body has such powers that it will be able to use in a proportionate manner were it to need them.

The clause also sets out that the power of entry does not apply to premises that are used wholly or mainly as a private dwelling. An investigator can therefore enter a private dwelling only with consent. This could apply, for example, where domiciliary care is provided to a patient and would mean that an investigator would need to obtain consent from the resident before entering their home. It is an important and proportionate limitation of the power. The Government are committed to ensuring that private and family life is respected, including in relation to the exercise of the powers of entry, by ensuring that premises consisting wholly or mainly of private dwellings are protected from unnecessary intrusion. The power of entry contained in the Bill aligns with that important principle.

The Secretary of State can also restrict the powers if he or she believes that it is appropriate and, as the shadow Minister alluded to, in the interests of national security. On this point, I will deal briefly with amendment 125. As discussed, the powers in clause 102 allow HSSIB to enter premises in which there is a Crown interest. This is to ensure that the new body can inspect premises where NHS services may be provided on Crown land, such as in a prison or on land owned by the Ministry of Defence. To ensure that this power of entry does not interfere with the safe running of such premises, HSSIB must give reasonable notice to the occupier of the premises of its intention to enter and inspect the premises. As discussed, that ensures that the national security elements of any provision at those premises—whether a Ministry of Defence facility or base—are not compromised. This provision allows the Secretary of State to issue a certificate that may limit HSSIB’s powers of entry, inspection and seizure. Such a certificate may also cover premises in which there is not a Crown interest.

We do not envisage that such certificate would often be issued. Indeed, they would be issued very rarely, but they may be necessary to restrict entry in certain circumstances and we think it might be appropriate in the context of a high-security prison or laboratory. Here restrictions could be placed on HSSIB, such as preventing it from taking copies of sensitive or restricted documents if their reproduction or removal could pose a national security risk. We believe we have struck an appropriate balance and that it is right to do this, so it can be debated by parliamentarians during the passage of the Bill. It is not a new approach. Section 96(5) of the Health and Social Care Act 2008 introduced similar provisions in relation to the Care Quality Commission’s powers of entry and inspection. If the amendment were accepted, it could cause significant operational difficulties and risks to HSSIB staff and potentially, in very narrow circumstances, to national security more widely. We do not envisage the power being used frequently, but it is important that the there is no concomitant risk to national security from the powers being used. It is important that we keep the provision in the Bill as drafted.

What clause 102 sets out by way of powers of entry, inspection and seizure can only benefit HSSIB as the current investigation branch is hampered by the lack of such powers. These powers will greatly improve the way investigations are conducted, but we also consider them to be proportionate and justified, given the aim of improving patient safety. Importantly, HSSIB investigators will operate in accordance with the Home Office code of practice on powers of entry under section 48 of the Protection of Freedoms Act 2012.

As I have said, while we expect most organisations and staff in most cases to co-operative voluntarily with HSSIB, it is important that in the course of its investigations, it collects all the information that it needs. Clause 103 sets out its powers to require such information. Specifically, it gives powers to HSSIB to require a person to attend an interview and to provide, by a specified deadline, documents, equipment or other information needed to help with the investigation. HSSIB must also give an explanation of the consequences of failure to comply with the notice. For example, it could be a criminal offence as set out in clause 105. On receipt of the information, HSSIB may retain information and if the safety of the patient is at risk, it can share this information. The clause specifies, however, that the person is not required to provide anything on the risk to the safety of the patient if that would incriminate them or if the information is normally covered by legal professional privilege.

Clause 104 is a short clause that allows a person to disclose information, documents, equipment or other items to HSSIB without being asked if they reasonably believe disclosure is necessary to enable HSSIB to carry out its investigation function. This could, for example, enable a member of hospital staff to provide information to the new body when they had concerns about a patient safety incident. It is exactly the kind of co-operative behaviour that we would want to encourage so that improvements can be made promptly. As such, it is important that the clause is included in the Bill.

Finally, clause 105 sets out offences relating to investigations. The hon. Member for Ellesmere Port and Neston raised a couple of specific points and I will deal with them before I conclude. First, my understanding is that the fines are potentially unlimited in scale. He asked about the process in carrying out investigations and whether the person could be accompanied by a legal or trade union representative or someone of that ilk. The Bill does not preclude an individual from being accompanied at an interview. Although it is important to note that HSSIB will set out in more detail what its processes will be to ensure that they are transparent, the aim of the interviews will be to encourage free and open discussion. Therefore, I would be cautious about individuals feeling that they always have a need to be accompanied by a legal or trade union representative. The Bill does not specifically prohibit that, but I hope that HSSIB will develop its processes and will be transparent about how they will work.

On the hon. Gentleman’s point about reasonableness, I very much hope that were the powers to be needed, we would see all that all avenues of co-operation had been exhausted and that they were, to coin a phrase, the backstop. I hope that meetings, conversations and interviews would be by consent and co-operation at a mutually agreed time that reflects the individual’s circumstances.

Clause 105 sets out that it would be an offence intentionally to obstruct an investigator when exercising their powers of entry, inspection and seizure or for someone to fail without reasonable excuse to comply with a notice to provide information. It would also be an offence to provide false or misleading information to an investigator. While we very much hope that the powers and the associated offences will never need to be used—as I have said, we expect voluntary co-operation to occur in most cases—it is important that the Bill includes such powers and sanctions. That will ensure that HSSIB can fully carry out its important investigation functions with the full co-operation from the necessary parties at all times. The clauses are all important to ensure that HSSIB can effectively conduct its investigations. I therefore commend them to the Committee.

Health and Care Bill (Sixteenth sitting)

Edward Argar Excerpts

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[The Minister for Health (Edward Argar)]

On a point of order, Mrs Murray. I put on record through you my gratitude to the Committee, and particularly to the usual channels and the shadow Ministers, for facilitating the adjournment of the Committee last Thursday in order to allow me to attend the funeral of my friend James Brokenshire.

[The Chair]

Thank you, Minister. I am sure the Committee has taken note of your point of order.

Clause 106

Prohibition on disclosure of HSSIB material

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[Justin Madders]

I thank the hon. Lady for that intervention, which articulates well what we are trying to highlight. It is a question of culture, which legislation can go only so far in addressing. As a Parliament, we need to address what more we can do to engender greater openness in the NHS. When things go wrong, there are better ways of handling that than what happens at the moment. When we have an £8 billion a year clinical negligence bill, it is incumbent on us all to look at ways that we can reduce that as well as assisting patients and their families to gain a better understanding of what has gone wrong.

[Edward Argar]

It is, as ever, a pleasure to serve under your chairmanship, Mrs Murray.

I am grateful to the hon. Member for Central Ayrshire not just for her amendments but for the opportunity to debate the issue, which goes to the heart of the challenges we face. I think there is broad consensus on clauses up to clause 119, perhaps with a challenge or a tweak here and there, but the provisions that we are considering are the one bit, as I know from the hon. Lady’s work on pre-legislative scrutiny and when the Bill was previously considered, that remains challenging. It is a matter of striking the appropriate balance to ensure the proper functioning of judicial authorities at the same time as achieving the overall objective of what we are trying to do with HSSIB: foster that learning culture, understand what goes wrong and avoid a repetition of it. It ultimately comes down to a subjective view of where that balance is most appropriately struck.

Clauses 106, 107, 108, 109 and 117, and schedule 14, address how HSSIB will protect the material it holds and outline the concept of safe space. Before getting into the detail of the clauses, I want to acknowledge that there has of course been extremely good and well-informed debate outside the Committee about how broad or narrow safe space should be; whether it should be as defined in the Bill with exceptions, or, to use the suggestion of the hon. Member for Central Ayrshire, flipped around to be the converse of that; and the merits of HSSIB sharing or not sharing information with other organisations. I feel it is important to set out how we came to the balance we propose.

The hon. Lady mentioned a previous Minister who visited Scotland. I am very conscious that I have a kind, outstanding invitation to visit from her and I look forward to taking that up at some point soon, I hope. I also spoke to the Scottish Cabinet Secretary for Health and Social Care, who endorsed that invitation. I therefore look forward to being able to come not only to Edinburgh, but possibly to Ayrshire, and finding a way to shoehorn that into the visit.

Key to our vision for a new model for investigations is that they are conducted in a safe space so that patients, families, NHS staff and other participants in an investigation are encouraged to speak freely and candidly and have the confidence that the information they provide will be protected, save in the most exceptional circumstances.

The objective is to encourage that open flow of information and get to the bottom of what may have happened with the best possible information available. Without guarantees that that information will not be shared—again, save in very limited circumstances, which I will come on to—we risk, as the hon. Lady said, eroding the confidence of all those who candidly trust HSSIB with that information.

We propose that information, documents, equipment or other items held by the new body in connection with an investigation will be considered protected material and must not be shared, apart from in certain limited circumstances, such as when necessary to address a serious and continuing risk to the safety of a patient or to the public, and then only to the extent necessary to allow a person to address the risk.

It is also important that people have certainty that the information they provide will not be used for the purposes of blame or liability. The current investigation branch does a good job under the current legislative framework but can only operate a weakened form of safe space. In addition, it has no powers to impose sanctions. We need to address that and put the HSSIB on a par with similar investigation bodies in the transport sector, as colleagues have said. Non-compliance with safe space protections may result in criminal sanctions.

[Mary Robinson (Cheadle) (Con)]

I have listened to the reasoning behind the amendments, and I feel that they are based on an acknowledgement that people in the health service have perhaps so far not found themselves willing to come forward and speak up when they see something wrong. The scope is much wider with this proposed body because evidence can be taken not just from people who work in the health service, but more widely. It is hugely important that we get to that place, because when we look at evidence taken on civil aviation and what happens in the civil aircraft space, we see that people always behave with the best interests of their sector, their workplace and the public at heart. People want to do the same with this Bill, so I am grateful that HSSIB has been set up. Can more consideration be given to how we ensure that people can speak up without feeling that they will blame another person or that they could be singled out for speaking out? That is exactly what we hope to address with the safe space.

[Edward Argar]

My hon. Friend is absolutely right. I should say that, even now, I am sure that many people in the health sector co-operate voluntarily, even when it is potentially challenging for them to do so. They do so because they want to foster that culture. This proposal will take that a step further forward and make it even easier for people to do so with confidence and to overcome any reticence that might exist because of, as she said, the fear of blame, the fear of opening up about something and the need to protect their sector and organisation, as they see it. She is absolutely right, and the key is to try to create a learning, rather than a blaming, culture. That is why the balance we strike in the definition of the safe space and exceptions to it is so important. We may or may not reach a consensus on where the balance should be struck, but this debate goes to the heart of the efficacy of the new body and how it will operate.

The Bill therefore sets out, on a statutory footing, a much stronger and more robust form of safe space. Clause 106 is the cornerstone of that. It is key to ensuring that all participants are completely candid with the information that they share, and it enables more thorough investigations and the development of meaningful recommendations. Investigations where protected material is held in the safe space should improve openness and co-operation between all participants and identify risks to the safety of patients, so that patients, families and the wider public can benefit from the experience of better investigations, and improvements can be made to the systems and practices in the provision of healthcare in England.

We believe that we have reached the right, balanced position after a lot of careful thought. In dealing with this legislation, my predecessors and I, along with my right hon. Friend the Member for Mid Bedfordshire (Ms Dorries), who is now Culture Secretary, wrestled a lot with the question of how to strike the right balance. I therefore turn to amendments 86 and 87. I am pleased that there is, I think, a consensus among all Members across the Committee that we need to protect materials, and about the value attached to protecting materials in the safe space, which is a key part of our approach to improving patient safety by allowing individuals to feel able to speak candidly.

Amendment 86 seeks to list in detail the types of material that will fall under the definition of protected material, while amendment 87, as the hon. Member for Central Ayrshire set out, is consequential on that. The definition given in clause 106(2) is intentionally broad. HSSIB will carry out a range of investigations, and it would be impossible to identify prospectively, in advance, all the material that will need to be gathered and should be protected by the safe space. By having a broad definition, we can give greater confidence to those who speak to HSSIB that all the material that it collects will be appropriately protected. There are very specific exceptions, which I will come on to.

As a future-proofing mechanism, the materials that are protected have not been listen in detail in the Bill. New technologies and ways of recording data are developing at a rapid pace. It is vital that HSSIB is able to adapt as these developments reach the frontline, rather than having to rely on returning to this House for further amendments to primary legislation. Listing the types of material in detail would have a number of practical implications. If we had a specified list, we could inadvertently leave out material that should be protected, when the vast majority of material the HSSIB will gather would be protected under the current definition. The Government endeavour to get everything right, but, as we all know, often do not.

[Justin Madders]

rose—

[Justin Madders]

Does the Minister think that there is anything missing from the amendment that ought to be included?

[Edward Argar]

I will take the intervention from the hon. Lady, and I will address both together.

[Dr Whitford]

I want to point out that it is irrelevant whether records, statements or information, all of which are listed in amendment 86, are in a digital form or some different form in the future. We use the words “statements”, “information” and “records”, and the importance of having copies is that the originals will still be available to other investigatory bodies. I cannot see what the gap is. Whether we are talking about an audio recording or sheets of paper, the technology is irrelevant.

[Edward Argar]

I am grateful to the shadow Minister and the SNP spokesperson, whose points are not dissimilar. I take the hon. Lady’s point that statements and information are recognised legal terms and would catch different mechanisms by which they are recorded. We still think it is prudent to allow not only for developments that we may not have anticipated, but for clarity. We believe that the blanket provision gives greater clarity and certainty without the assistance of the amendment, so we do not share the hon. Lady’s view. I suspect she may still wish to test the amendment with a Division to make the point, as she is entitled to do.

Moving on from these amendments, to illustrate the variety and breadth of debate on this subject—we have had a small taste of it this morning—I want to address the argument that keeping protected materials in the safe space would potentially undermine the role of other bodies, such as the Parliamentary and Health Service Ombudsman. This illustrates part of the challenge. There are, understandably, calls from colleagues on the Committee to further restrict the exceptions to the safe space. As has been alluded to, others outwith this place argue for an expansion of the list of those exceptions. Some have argued that the PHSO should be on that list. With all due respect to those who advocate that, I do not agree. I do not think it would be appropriate to add the Ombudsman to the list of exceptions. The PHSO will still be able to fulfil its important independent role. It will have direct access to the same sources as it does now when it needs to investigate a complaint. The HSSIB will not in any way limit its ability to conduct an investigation.

[Karin Smyth (Bristol South) (Lab)]

I am a member of the Select Committee on Public Administration and Constitutional Affairs, which oversees the ombudsman. The Minister will be aware of correspondence between the Committee and the ombudsman. Could the Minister comment on the report from the Venice Commission about how far the United Kingdom will be outwith international consensus on this subject?

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[Edward Argar]

I will do so now for the hon. Lady. I have great respect for the work of the Council of Europe and the Venice Commission around ombudsman services. The Venice Commission has looked at this, understandably, from the perspective of the ombudsman and uniformity of process. We have had to weigh that up—exactly as the Committee is doing in this debate—in balancing the impact of too many exceptions, or exceptions that are too wide, on the candour with which people can contribute their views to further the improvement of patient safety. There is no ideal line on this, hence this morning’s debate.

I respect the views that the Venice Commission has set out. I think it formally set out its conclusions a week or so ago, after a number of informal meetings among its members and with officials to gather evidence; I suspect it also took the views of the Public Administration and Constitutional Affairs Committee. The Venice Commission looked at the matter, quite rightly, from the perspective of the ombudsman and the uniformity of the services it provides. We had to strike a slightly different balance, hence why we reached a different conclusion.

--- Later in debate ---

[Dr Whitford]

rose—

[Edward Argar]

I will take an intervention from the hon. Member for Central Ayrshire, because I suspect it is consequential on what the hon. Gentleman has said.

[Dr Whitford]

I would like to understand what coroners have now that they would lose by the protection of safe space. The provisions on granting disclosure apply to the High Court, not to all courts and not to all judicial positions. Why is the coroners’ court specifically being given the right to access, as opposed to applying for disclosure through the High Court? It will be the thin end of the wedge, and other groups will feel they ought to have a right to the same safe space. As clause 107 allows regulatory changes to be made later, this could continue to be eroded. I do not understand what part of what coroners do would be undermined by the introduction of HSSIB and the real safe space.

[Edward Argar]

I am grateful to the hon. Lady and the hon. Gentleman, and I think the points they made are linked. The distinction we draw with other organisations and individuals is because of the key point that coroners are members of the judiciary. The hon. Gentleman is right to say that that gives them independence in the exercising of their functions, and I will turn in a minute to what the Chief Coroner is doing specifically with these clauses to seek achieve greater consistency.

Coroners are independent and that goes to the heart of their role, which is to determine the circumstances of a death. That is why we believe it is important that their independence, and their existing right to access papers and documents, is not in any way fettered by the legislation. I will try to make a little progress in explaining what we have done with the Chief Coroner, and that may assuage some of the hon. Lady’s fears. I fear it will not, but I will try.

As we know, coroners would not have wholesale access to the protected material. They would have access only when it was necessary for them to fulfil their judicial functions in a clear way—for example, in particular individual cases. We expect that the memorandum of understanding between HSSIB and the Chief Coroner, which will be in place, will set out how HSSIB and coroners will work together to minimise the occasions and the amount of material on those occasions that would need to be shared to meet the responsibilities of a coroner that are clearly set out in statute when investigating a particular death.

Although I hope I have provided a degree of reassurance, I fear that it may not be sufficient for the hon. Lady, who has studied the issue over many years in her work. Our aim is that, due to its sensitive nature, the information cannot be publicly disclosed or shared further without an order from the High Court, which is an important safeguard and something that we have considered carefully to balance the needs of coroners and HSSIB. We believe that we can trust our coroners as judicial office holders to behave appropriately.

[Dr Whitford]

If it is the case that it should be judicial officers, why is it only the High Court, and not other courts in the land that might have an interest in such a case?

[Edward Argar]

The role of the coroner is very specific, which is why we have singled out coroners, because their role is to investigate deaths. Hopefully, a large number of the investigations that HSSIB will be investigating will not be about deaths but, to use the hon. Lady’s analogy with air accident investigations, near misses or incidents that, thankfully, did not result in the death of the patient but may have resulted in injury or other concerns. In the vast majority of cases, therefore, I do not believe that coroners will be involved in HSSIB’s work, but they have a specific role in investigating and determining the circumstances and cause of a death. Therefore, we feel that their ability to access it in extremis is the right approach.

The hon. Lady talked about the High Court. For other circumstances, we think that that is the right bar, whether for the PHSO or others, because it is experienced in considering those very complex cases. I suspect, and I think there have been some cases in a similar vein, that the court will consider and debate them over many days because the balance is so delicate.

Because of coroners’ historical and defined-in-statute role, specifically around the investigation of deaths, we think that they are the single right exception in the judicial space. The hon. Lady may take a different view and I entirely respect that, as I respect pretty much all her views when it comes to health. We do not always agree on everything but, like the hon. Member for Bristol South, she knows of what she speaks even if sometimes we reach a different political conclusion.

As I have said, an order will be made only if the High Court is satisfied that the interests of justice served by allowing disclosure in those other cases outweigh the impact. As I touched on in my reply to the hon. Lady, I remind hon. Members that HSSIB will be looking at systemic learning rather than individual cases. As I said, thankfully, many instances do not involve deaths, and even if they do, they may not be ones that are scrutinised by a coroner save in a formalistic way. Therefore, we would not expect the power to be used frequently by coroners at all.

We have included the last limited exception because, as I say, we want to ensure that coroners have appropriate access to information to carry out their statutorily defined judicial functions while seeking to balance that with protecting the integrity of safe space by preventing onward disclosure, except by court order. As such, I hope that hon. Members, even if they do not necessarily agree, recognise the amount of thought that has gone into seeking to strike the appropriate balance.

[Dr Whitford]

I still do not understand from the Minister’s explanation what the coroner loses from where they are now. They can still investigate a death, exactly as now, and that was the argument for narrowing what is kept in safe space so that all the original materials are available to other bodies, including the coroner. The Bill adds something extra at the risk of undermining safe space.

[Edward Argar]

I take the hon. Lady’s point, but I do not believe this very narrow exception does or will undermine safe space. What it does is enable coroners to continue to do their job, and if there is information available out there, it enables them to access it from that source. My personal perspective is that we have struck the right balance: if the information is there, we should make it easier for coroners to do their job and access information that facilitates it. I have sat through coroners’ court hearings, and I have seen how families cope with them—it is not the easiest experience for them. If there is information out there that would make it easier for a coroner to reach a swift conclusion, and would give them the information that they need about circumstances and cause of death and so on—the other key part, which is not necessarily pertinent here, is the identification of the deceased individual—I believe it appropriate that we give them access to that information.

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[Justin Madders]

I understand what the Minister is saying: we need the ability to make regulations to give us some flexibility. Equally, the definition of protected material is broad, to give Ministers and HSSIB flexibility as well. It seems that there is a bit of cakeism going on here.

[Edward Argar]

I think I know what the shadow Minister means by cakeism. I see his point, but I think the Bill strikes the right balance by building in a further degree of flexibility, but with the safeguard of the affirmative procedure. As he knows, because he has debated such things with me in the past, the affirmative procedure is not always a friend to Ministers in obliging them to come to this House and debate and explain everything. It is, however, an important democratic safeguard when regulation-making powers are inserted into primary legislation, and that is why we have adopted the affirmative procedure in this context. I hope that that gives him a degree of reassurance that the Secretary of State’s regulation-making power is simply a future-proofing mechanism, with sufficient parliamentary and democratic safeguards attached to it.

It is crucial, of course, that the integrity of investigations is protected and that we take a careful approach to how information is protected, so that there is public confidence in the work of HSSIB. That goes to the heart of what we are seeking to achieve with this part of the legislation. To ensure that confidence, the Bill provides for the creation of offences for unlawful disclosure. That is the backbone to the creation of statutory safe space. Clause 108 creates three offences of unlawful disclosure. The offences extend to HSSIB and connected individuals, individuals who are no longer connected with HSSIB, and persons who are not connected with HSSIB but receive certain protected material. It is important that we send a robust message that there will be consequences if protected information is disclosed unlawfully. It will be a criminal offence, and the person who commits an offence will be liable on summary conviction to a fine.

Clause 109 prevents a power in any other legislation from being used to require the disclosure of any protected material by HSSIB, or to seize protected material from HSSIB. That is, as we have debated, with the exception of certain parts of the Coroners and Justice Act 2009, which allows coroners to require disclosure in some circumstances due to provisions made in schedule 14 of the Bill. However, that provision respects the devolution settlement agreement and therefore does not apply to any provision that is within the legislative competence of the devolved Administrations. The clause will help to enhance HSSIB’s safe space protections by prohibiting the unauthorised disclosure of protected material. It is important to ensure that safe space cannot simply be breached by the use of a power elsewhere in another part of the statute book, and this provision makes that position entirely clear.

As we have debated, safe space encourages all participants to be completely candid with the information that they share with HSSIB, enabling more thorough investigations into what went wrong. That will also help more widely to protect the “learning, not blaming” culture that hon. Members have spoken about and that HSSIB is hoping to embed.

[Mary Robinson]

I am so pleased to see and hear this balanced argument, and the way that all the considerations have been taken into account. With regard to the penalties for disclosure of information, how does the Bill add to or improve the provisions in the Public Interest Disclosure Act 1998? Does it improve on those provisions, or sit alongside it? Does it protect workers who disclose that there is an issue, not only from penalties such as losing their job, but also from the fine for disclosures put out there deliberately?

[Edward Argar]

I know that my hon. Friend has done a lot of work in this space, possibly involving the all-party parliamentary group for whistleblowing. I know she is very concerned to make sure that, while these protections are in place, the legitimate rights of whistleblowers seeking to disclose information are not inhibited. This provision sits alongside the 1998 Act, but it is a difficult balance to strike, as she rightly suggests. I pay tribute to her work in helping to foster a culture in which people feel able to speak up and bring matters to the attention of the appropriate body to address wrongdoing.

Finally, clause 117 ensures that the disclosure of information, documentation or other items that are authorised by the provisions I have just discussed does not breach any obligation of confidence owed by the person making the disclosure or any other restriction. The clause also confirms that part 4 does not authorise any form of disclosure that would contravene data protection legislation, which is intended to ensure that where an individual is required or authorised to disclose material, they are protected from violating restrictions on disclosure. A disclosure to HSSIB in those prescribed circumstances therefore does not contravene any restrictions on disclosure, removing barriers that individuals may face in disclosing information to the current investigations branch and helping to instil trust in the new HSSIB investigatory process.

Safe space is an exciting and important development of recent years. What we are seeking to do today is a first for a health body in this country. The clauses are of great importance to the new HSSIB and the vision we have for it. The novelty of what we are seeking to do here, building on what happens in the transport space, and the challenges that that poses, are demonstrated in the debate we have had on what the right balance is. It is an incredibly difficult and, to a degree, subjective judgment for Members of this House and others to make. While I have set out where we believe it should sit, I entirely respect the perspective of the hon. Member for Central Ayrshire, who has a slightly different and entirely legitimate view. I commend the clauses to the Committee.

[Dr Whitford]

This is the nub of the entire debate on HSSIB. I welcome that the Minister is struggling with exactly how to achieve that balance. I think everyone on the Committee is trying to do their best to get a good outcome. The Minister talks about clarity, but then we hear about flexibility. It is important that we get this right in the Bill. I wish to press amendment 86 to a Division.

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[The Chair]

With this it will be convenient to debate that clauses 111 and 112 stand part of the Bill.

[Edward Argar]

The clauses address HSSIB’s relationships with other bodies, including with the devolved Administrations.

Clause 110 places a requirement on HSSIB and a number of listed bodies, including the Care Quality Commission, NHS England and the commissioner for patient safety, to co-operate with each other when they carry out investigations into the same or related incidents. The duty to co-operate relates to the practical arrangements for co-ordinating those investigations.

Clause 110 would not require the sharing of any protected material held under the safe space. It will also require HSSIB to publish guidance regarding when an incident may be considered related to another incident. That will ensure that there is the necessary clarity across all organisations as to when co-operation is required in often complex investigations. HSSIB will, of course, still be able to co-operate with bodies that are not listed in clause 110, and the current investigation branch has already established many strong relationships with bodies not covered in that list.

However, clause 110 is crucial if we are to ensure that there is a consistent and cohesive approach to investigations in the same area or related areas. It is important that we encourage organisations to co-operate in this way so as to ensure that multiple investigations touching on the same incident can be delivered in the most stream- lined way. For example, the clause would compel two organisations that wished to interview the same individual to co-ordinate. Similarly, if two organisations need to visit a clinical area, it is important that they co-operate to minimise the impact on the day-to-day running of that clinical area.

Clause 110 helps to ensure that information is accessed effectively and efficiently. It ensures that organisations can carry out the important but different roles that they have in an efficient manner and also minimises disruption to patients and to others involved.

Clause 111 places a requirement on HSSIB to comply with any request for assistance from a relevant NHS body. That assistance would be in connection to an investigation into any incident that may have occurred during the provision of NHS services or at premises at which NHS services are provided. NHS England or the Secretary of State may also request that HSSIB provides a relevant NHS body with assistance. Assistance can be provided to trusts, foundation trusts, NHS England and the newly formed integrated care boards. Such assistance may include advice, guidance and training for those organisations in connection with an investigation.

The purpose of HSSIB’s investigations is to identify risks to the safety of patients and to address those risks by facilitating the improvement of systems and practices in the provision of NHS services or other healthcare services in England. HSSIB is designed to encourage the spread of a culture of learning within the NHS, and clause 111 allows HSSIB to support others in undertaking investigations and to share knowledge gained from its own investigations. The clause will help HSSIB to promote better standards for local investigations and improve their quality and effectiveness. To this end, HSSIB will disseminate information about best practice and standards to be adopted.

Clause 111 will also enable HSSIB to provide assistance to bodies other than relevant NHS bodies if they request assistance in relation to any matter connected with the carrying out of investigations. That will help to encourage the spread of learning and enable HSSIB to share its expertise across the wider healthcare sector, both within the UK and abroad, if requested. It will be able to charge a fee for such activities. Of course, we would not expect HSSIB to provide such assistance should doing so significantly interfere with the exercise of any of its investigative functions, and protections are included in the clause to ensure this.

Finally, clause 112 enables HSSIB to enter into agreements to carry out certain investigations relating to Wales and Northern Ireland, a provision that the Welsh Government and the Northern Ireland Executive were keen to see included. Those investigations would identify risks to the safety of patients and help to facilitate improvement of systems and practices. Investigations would not assess blame or involve the determination of any civil or criminal liability. It is important that HSSIB has the opportunity to share its expertise and help facilitate greater learning and improvement outside England. The clause allows HSSIB to charge for such investigations in Wales and Northern Ireland but only to cover the costs incurred through the course of the investigation. Of course, we would not expect HSSIB to provide such assistance should it significantly interfere with the exercise of its core investigative functions and, again, protections are included in the clause to ensure that.

These clauses are crucial to ensure that HSSIB has strong working relationships with NHS bodies, as well as regulators and, where requested, the devolved Administrations. I therefore commend the clauses to the Committee.

[Justin Madders]

As we have heard, the clauses deal with the requirement to co-operate and I will not go over the ground that we have already trodden on in respect of degrees of co-operation and how that might make a material difference to ultimate success. We hope that the many organisations listed in clause 110 will respond not simply because of the legislation but because the no-blame culture to which this body aspires is just as relevant to them as it is to individuals.

Is the long list of organisations in clause 110(3) the totality of NHS bodies or bodies associated with the NHS, or with running NHS services? I think the Minister mentioned that there may be others that have been involved but that are not in this list. Has any of them been excluded from the list and, if so, why?

The power to levy charges on NHS bodies for assistance shows why our amendment requiring the creation of the post of chief finance officer would have been sensible. While there are sanctions for individuals who block investigations and there is a debate about where co-operation ends and obstruction starts, I am unclear whether there is a similar sanction that could be imposed on the bodies listed in clause 110. Has the Minister considered that? Is there a process whereby the buck will stop with a named individual in any of these organisations or is that dealt with later in the Bill?

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[Hywel Williams (Arfon) (PC)]

I want to ask some questions about clause 112. I have practical questions that the Minister might answer today, or he might wish to write to me. I welcome the clause as a continuation and an improvement, hopefully, on current arrangements. Who might ask HSSIB to carry out an investigation in Wales? Would it be the individual health board or the Welsh Government? Has a mechanism been established yet? Secondly, how involved would the Welsh Government be in any investigation? Would the Senedd, for example, have access to information in an ongoing investigation?

Thirdly, in respect of challenging who would be responsible for paying, would it be the Welsh Government or the individual health board? Fourthly, the Healthcare Safety Investigation Branch has noted that the Bill could be strengthened by the Secretary of State giving a clear mandate for HSSIB to monitor the progress of the response to recommendations. Does the Minister envisage the Welsh Government having a role in monitoring progress, or would it be a matter for HSSIB or the health board?

On clause 107, which has already been debated, I have reservations about extending further exemptions. Would the Welsh Government be able to request or even authorise exemptions where HSSIB carries out investigations in Wales, or is it a matter specifically for the Secretary of State, although health is almost entirely devolved, of course? Finally, will the Minister outline what discussions he has had with the Welsh Government about these provisions? I appreciate that those are detailed questions and he might want to reply to me in writing.

[Edward Argar]

A number of questions were asked that I will seek to address. If I cannot answer the specific points raised, I will write to clarify them.

The hon. Member for Ellesmere Port and Neston asked about sanctions, and the hon. Member for Bristol South asked about a list of bodies and whether there are any not included—essentially, who was in and who was out. There are two, which I am sure the hon. Gentleman will have noticed, not included in the list of bodies: the Medicines and Healthcare products Regulatory Agency and the National Institute for Health and Care Excellence. I suspect that is the genesis of his asking the question. We recognise the strategically important role that both bodies play in patient safety. Not listing them does not mean that HSSIB cannot co-operate with them. Co-operation across different bodies is something that we encourage. In fact, we would expect HSSIB to develop memoranda of understanding with those organisations, but we focused on specific ones on the list where there is likely to be day-to-day co-operation, particularly with health trusts and others.

On sanctions, we focused on what HSSIB is doing and its being able to progress its investigations. Ultimately, as we have debated, it has the power to seize documents and require information. I very much hope that that will not be needed and that co-operation and memoranda of understanding will be an effective way of moving forward, as it appears to be at the moment, but we have those powers in the legislation, were they to be needed in extremis.

The hon. Member for Arfon mentioned several issues relating specifically to Wales and engagement with the Welsh Government. As I briefly alluded to in my speech, the inclusion of powers to allow the Welsh Government to request the involvement of HSSIB was done at the request of the Welsh Government. We have discussed the issue with them, and I think their request reflects their view that HSSIB involvement could add value in Wales.

The hon. Gentleman sought to understand how the arrangement would work in practice and asked a number of questions about what the fees would be, who would pay them and whether that would be the responsibility of a trust or the Welsh Government. We are still working through those practical matters with the Welsh Government, but we were keen to include the power while we had the opportunity, because the original request came from the Welsh Government. It is a similar case with the Northern Ireland Government. Scotland, to which the hon. Member for Central Ayrshire alluded, has its own well established approach, which works, and therefore a different option was taken in its respect.

Conversations with the Welsh Government have not progressed to the extent that I can give the hon. Member Arfon detailed answers to all his questions, but I will write to him if there is any more that I can add.

Question put and agreed to.

Clause 110 accordingly ordered to stand part of the Bill.

Clauses 111 and 112 ordered to stand part of the Bill.

Clause 113

Failure to exercise functions

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clause 114 stand part.

[Edward Argar]

The clauses relate to the oversight of HSSIB’s functions. Clause 113 enables the Secretary of State to direct HSSIB to exercise its functions within a specified time period and in such a manner as the direction prescribes. That direction-making power, on which I suspect the shadow Minister the hon. Member for Ellesmere Port and Neston will question me, will apply only in the event that the Secretary of State considers that HSSIB is failing or has failed to exercise any of its functions, and that that failure is significant. Directions must be in writing and will ensure that appropriate action can be taken by the Secretary of State in the event of any failure on the part of HSSIB to exercise its functions.

Independence as a concept is fundamentally important, and indeed at the heart of HSSIB, and will be a crucial way to ensure that patients, families and staff have trust in its processes and judgments. However, the clause serves to help to safeguard the trust placed in HSSIB by patients and families in the event of its significant failure to exercise its functions. We believe this is a sensible and proportionate provision, which ensures that HSSIB is performing its vital functions. To maintain the independence of the investigatory process, such directions made by the Secretary of State will not be able to influence the outcome of any HSSIB investigation.

We do not expect to use the power—in fact, I hope that we will never have to use it—but it is right that the Secretary of State has the power to act in the event of significant failure. That is consistent with similar existing powers available to the Secretary of State in relation to other non-departmental public bodies, including the Care Quality Commission. Should HSSIB fail to comply with such directions, the clause enables the Secretary of State to choose to make arrangements either to undertake the exercise of HSSIB’s functions themselves or for another body to undertake them. That will ensure that the important investigatory work is sustained and delivered at the appropriate high standard, should HSSIB have experienced significant failures in achieving that.

Clause 114 requires the Secretary of State to undertake a review of and prepare a report on the effectiveness of HSSIB in undertaking its investigation function. That report must be prepared, published and laid before Parliament within four years of clause 94 coming into force, which sets out its investigation function. Given the trust that patients, families and staff will place in HSSIB’s processes and investigations, it is vital that Government is transparent to the public and parliamentarians regarding the performance of the new body. That report will be key to ensuring such transparency and to helping to facilitate learning and improvements within HSSIB. I therefore commend the clauses to the Committee.

[Justin Madders]

As the Minister has anticipated, clause 113 troubles me somewhat. We have talked extensively about the importance of independence and the need for HSSIB to have the confidence of those with whom it interacts so that it is fully effective. Once again, in common with much else in the Bill, we see that the Secretary of State gets to hand himself extensive powers to interfere with HSSIB. Subsection (1) basically places judgment about the exercise of that power in the hands of the Secretary of State. It is his opinion that counts, and no attempt is required to evidence-proof a failing. HSSIB is apparently unable to challenge that judgment. Subsection (5) states that that failure only has to be a failure to exercise its functions properly. That is qualified a little by subsection (1)(b), which says that the failure has to be significant, but unfortunately that is what the Secretary of State considers significant, nobody else. With all that together, the Secretary of State has pretty much a blank cheque to step in and interfere any time he likes, so long as he considers that there has been a significant failure.

However, it gets worse. Subsection (2) allows the Secretary of State to direct HSSIB in whatever manner he determines, which I would have said is about as far away from independence as we can get—until I read subsection (4), which allows the Secretary of State to step into HSSIB’s shoes and do its job himself. I am sure he has other things in his diary at the moment, but the idea that he can come in and undertake the functions of what is meant to be an independent body is simply unacceptable. I can do no better than refer to the evidence that Keith Conradi gave to the Committee:

“Ultimately, we end up making recommendations to the Department of Health and Social Care, and in the future I would like to ensure that we have that complete freedom to be able to make recommendations wherever we think that they most fit.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 60, Q78.]

The Secretary of State having the power to effectively step in and start running the body, either directly or indirectly, at a moment’s notice, will not help with that freedom. Why does that need to be in the Bill and hanging over the body the whole time?

There is a suggestion that the Health and Social Care Committee would be better placed to administer this function, or at the very least that the Secretary of State should require its agreement before exercising this function. I agree that that Committee might be better placed than one person to have oversight of HSSIB. Perhaps we should consider which group will be best placed to have oversight of HSSIB, to ensure that it is truly independent.

The Secretary of State is tasked with carrying out a review of HSSIB. I am pleased that any subsequent report would be laid before Parliament, but again it is the Secretary of State undertaking that review—his judgment alone. Clause 114 says that the report must be laid within four years of the Bill’s passage. Is there a particular reason why four years was chosen? I am sure the Minister anticipated that question, so I hope he will be able to answer. My reading of the clause is that a report is required after four years, and after that there is no further requirement. It seems rather remiss for there to be no ongoing commitment to review HSSIB.

On clause 113, there are concerns that the oversight of HSSIB will be carried out by the same person who appoints its members, can remove them at a whim, sets remuneration, directs investigations, sets the funding and consents to the criteria of processes. There appears to be a clear conflict of interest. While I accept that there is a role for the Secretary of State, it is not necessary for this role to be so far reaching and overbearing. HSSIB is meant to be an independent non-departmental public body, but the role given to the Secretary of State throughout the Bill suggests that that will not quite be the case. The Bill firmly situates its functions under the Health Secretary, which is far from the definition of a non-departmental public as separate body from the sponsoring Department. Non-departmental public bodies tend to be responsible to Parliament, rather than the Government. Placing scrutiny powers with Parliament and ensuring that a framework document is in place to inform the basis of performance monitoring, rather than placing all the power in the Secretary of State’s hands, would be the best way to achieve this.

I have to say that the fact that the Secretary of State can pretty much pick all the main players in HSSIB does not say much about his confidence in his own judgment about these decisions, if he needs these sweeping powers up his sleeve just in case. I suspect that he was not the person responsible for these appointments, but the point remains that there are still questions over whether this is needed. I know the Minister said that this power would hopefully not be used, but if that is the case, why does it need to be in the Bill?

--- Later in debate ---

I wonder whether that is a better way of doing things, rather than placing all the power in the hands of the Secretary of State, who, even on the Minister’s own admission, is not I hope going to have to use it.

[Edward Argar]

I am grateful to the shadow Minister for his comments. I semi-predicted where I thought he might be going with his challenges, and I hope I can offer him reassurance.

First, at the heart of this is the fact that with an NDPB, an executive agency or any other public body, ultimately the Secretary of State is accountable, quite rightly, to this place for the operation of that—not for the operational decisions, but that it functions as an effective public body. Therefore, we never know, but I suspect that there may be a day—not necessarily in the immediate or near future—when the hon. Gentleman is sitting in my office or the Secretary of State’s office, and he would want, quite rightly, where there is a significant failure of an organisation, to be able to take action to address that. That is what the clause provides for.

Those powers would be used only in extremis, and only where

“HSSIB is failing or has failed to exercise any of its functions, and…the failure is significant.”

These are terms of which there is a legal understanding. It is not carte blanche for the Secretary of State, as I think the hon. Gentleman suggested in a debate on a previous clause, to get up one morning and say, “Do you know what I feel like doing? I feel like exercising these powers.” It is not possible to do it in that way. These are understood terms that set a very high bar for interventions.

Secondly, these powers are analogous to similar powers that the Secretary of State has over other NDPBs, or the CQC, as I said in my opening remarks, and other organisations in this space.

[Justin Madders]

I am not suggesting that anyone might wake up in the morning and decide on a whim to do this, but the fact of the matter is that, as the clause is drafted, if the Secretary of State was minded to do that, there is nothing that would stop them being able to do it, is there?

[Edward Argar]

I come back to the point that I have just made to the hon. Gentleman. Terms such as “the failure is significant” are understood terms, and of course public law principles would apply to decisions made by the Secretary of State, such as reasonableness and proportionality. I do think that this is both analogous to powers that the Secretary of State has over similar bodies and also proportionate.

Similarity, I do not believe that the clause questions or brings into question the independence of HSSIB. We recognise that that is fundamental to its success, and that is why it would be used only if the body

“is failing or has failed…and…the failure is significant.”

I come back to those understood terms, and that is a very high bar that would be subject to public law principles.

On the report that the hon. Gentleman mentioned, why is it four years—why not three, two or five? We think that four years is an appropriate and reasonable length of time for the new body to become established and to show what is working and what is not, so that we can see a meaningful report on how it has functioned over a number of years. As he said, the House would have the ability to debate that report, if it chose to do so. The report would be laid before the House and he could call a debate, if he was still in the same role at that point. Given that he has served in his Front-Bench role even longer than I have served in mine, I suspect that, much though he enjoys doing so, he may be hoping for a change by then.

The other point is that, just because this is the only report that is formally specified, it does not mean that there would not be the opportunity for other reports or reviews to be undertaken regularly. As the hon. Gentleman knows, we do that with other public bodies from time to time. It is right that Governments of whichever complexion review the NDPB landscape. We talked about ALBs earlier in our consideration of the Bill, and about the ability to move functions around depending on whether they are best exercised by the existing body or elsewhere, which reflects the same point.

I hope that gives the hon. Gentleman some reassurance that there is no desire on the part of the Secretary of State or me to add to our current workload, or indeed, should the day come, to add to the hon. Gentleman’s workload, were he to occupy this office—or indeed to that of the hon. Member for Nottingham North, whom I would not wish to exclude. The words used and the public law principles that apply would mean that the provisions would be commensurate with the powers over other bodies, and proportionate. I commend the clause to the Committee.

Question put, That the clause stand part of the Bill.

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[The Chair]

With this it will be convenient to consider the following: Clause 116 stand part.

Clause 118 stand part.

That schedule 15 be the Fifteenth schedule to the Bill.

Clause 119 stand part.

[Edward Argar]

These clauses cover further detail regarding offences created in part 4 of the Bill and interpreting part 4 of the Bill more generally. Clause 115 specifies that when an offence created by part 4 is committed by a company, an officer of that company may also be liable for that offence. This would be the case where it could be proven that such an offence was committed with the consent or involvement of an officer of the company or that such an offence could be attributable to neglect by an officer of the company. Hence the officer and the company who commit the offence are both liable and can be punished accordingly. Company officers who are liable in such a way would include any person who would purport to act in that capacity, including any directors or managers in the company.

It is important that any offences set out in part 4 of the Bill are capable of being fully enforced, and this means ensuring that the right actors are held to account and are therefore also deterred from committing such offences in the first place. Ensuring that both an individual and an organisation can be held to account shows clearly the commitment to maintaining a high standard of investigation and information protection, and to protecting the principles of safe spaces more widely.

Clause 116 specifies that when an offence created by part 4 of the Bill is committed by a partnership, a partner may also be liable for that offence. This would be relevant in an instance where, for example, a GP partnership commits an offence. The clause allows proceedings to be brought in the name of the partnership as well as the individual partners. Similarly to clause 115, where an offence is committed by an partnership and it can be proven that such an offence was committed with the consent or involvement of a partner or could be attributable to neglect by a partner, the partner and the partnership that commit the offence are both liable and can be punished accordingly. The clause also provides that where a fine is imposed on the partnership, it must be paid out of partnership assets. However, should a fine be imposed on a partner, that fine would be paid by the partner as an individual.

The committing of offences set out in part 4 of the Bill would reduce trust in HSSIB’s investigatory processes, and therefore it is important that the right actors are held to account should such offences be committed. Ensuring that both the partnership and individual partners can be so held to account is important for the same reasons I have discussed in relation to company officers under clause 115. The corporate structure itself should not make any difference: we want to ensure that the investigatory process and the principles of safe space are always upheld and protected. Both clause 115 and 116 are common provisions in relation to offences. They ensure that the appropriate actors are covered, but also add a further deterrent effect that can help avoid offences being committed in the first place.

Clause 118 inserts schedule 15 into the Bill. Schedule 15 makes the relevant consequential amendments to other Acts of Parliament to ensure that HSSIB, as a new non-departmental public body, is referenced in relevant legislation. This includes relevant public body, health, employment and equalities legislation and means that HSSIB must comply with the relevant legislation, such as the Freedom of Information Act.

Finally, clause 119 sets out the defined terms used in part 4 of the Bill. The clause is crucial to ensuring that the HSSIB provisions are correctly interpreted and provides the necessary clarity on key terms. I therefore commend these clauses and this schedule to the Committee.

[Justin Madders]

I am not going to spend an awful lot of time on these clauses and this schedule, because the Minister has set them out very well, but I want to come back to his reference to clause 110 and the obligations on those who hold senior positions in NHS bodies. Regarding offences committed, the Minister said that there would not be the same need for punishments to follow failure to co-operate. I wonder whether that is consistent. Could he set out how offences committed by officers of a body corporate could be equated to offences committed by those who are running NHS bodies, or whether there is any discrepancy there that he would like to address?

[Edward Argar]

I will also endeavour not to detain the Committee for too long. I do not believe there is any discrepancy; I believe there is consistency there. The shadow Minister has highlighted what is essentially a technical point in the read-across between the two, and over the next couple of hours I will quickly check on that to make sure that I am right. I do not think there is any inconsistency there, but he has raised an interesting technical point, and I will review it. I hope he will forgive me if I do not give a technical answer right now, but I may shoehorn it in somehow this afternoon, keeping it in order by relating it to a clause that we will discuss subsequently. That will be a challenge, because we are about to finish the HSSIB clauses, but if there is anything to add to what I have just said, I will endeavour to work it in later this afternoon.

Question put and agreed to.

Clause 115 accordingly ordered to stand part of the Bill.

Clauses 116 to 118 ordered to stand part of the Bill.

Schedule 15 agreed to.

Clause 119 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Steve Double.)

Health and Care Bill (Seventeenth sitting)

Edward Argar Excerpts

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[Justin Madders (Ellesmere Port and Neston) (Lab)]

It is a pleasure to see you in the Chair, Mr McCabe. I shall speak in support of amendment 146, which stands in my name and the name of other Opposition Members. There is a temptation to get teary-eyed and reminisce about the 2017-19 Parliament; it is almost overwhelming, but I will resist and battle on.

What we are discussing in this clause amounts to a significant amendment to the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, on which I had the pleasure of leading for my party, opposite not one but two of the Minister’s predecessors. I hope that the same fate will not befall this Minister as befell his predecessors who dealt with this legislation—although one of them actually got a promotion. Clause 120 renames that Act the perhaps more snappily titled Healthcare (International Arrangements) Act 2019, which is what the original Bill was called until Parliament, in its wisdom, decided that as this was a Brexit Bill, it was better to have it deal with matters associated purely with Brexit, and not to slip in wider powers almost wholly unrelated to our decision to leave the EU.

The clause gives the Secretary of State power to make regulations to pay for healthcare provided outside the United Kingdom where the payments give effect to a healthcare agreement. In the context of what has come before, that is no surprise, and it is certainly something we would expect to be pursued. It also means that the Secretary of State will be able to make regulations on the payment of healthcare provided in another country where the healthcare is outside the scope of healthcare agreements if he thinks that payment is justified by exceptional circumstances and the healthcare is provided in a country with which the UK already has a healthcare agreement. This discretionary power could, for example, be exercised to pay for a specific treatment that falls outside the scope of an existing healthcare agreement.

Not content with giving himself the power to enter into further healthcare agreements outside the EU, by doing this, the Secretary of State effectively gives himself another power to make further payments if he later discovers that there was another matter that he thinks we should have been paying for that had not been covered by those agreements. It may be that that situation would only arise in exceptional circumstances, but the whole genesis of the original Bill was that it was considered sensible to retain reciprocal healthcare arrangements with countries in the EEA, whereas the clause implies that things may not be quite so reciprocal in future. I wonder what the dynamic will be in negotiations with third countries if, on our side at least, we can just authorise further payments outside any agreement anyway.

These are potentially extraordinarily wide powers, and the regulations would be subject only to the negative procedure. Our amendment is not only consistent with the importance of parliamentary scrutiny, but would ensure value for money. The original Bill contained a similar power to that in the clause and was considered by the Delegated Powers and Regulatory Reform Committee in the other place. It set out clearly the power’s potential impact:

“If, without such amendment, the Secretary of State wished to fund wholly or entirely the cost of all mental health provision in the state of Arizona, or the cost of all hip replacements in Australia, the regulations would only be subject to the negative procedure.”

[Interruption.] The Minister is chuckling. He may well know that I have used that quote before, because it highlights the extreme examples that are possible under the Bill. The Committee continued:

“Of course, these examples will not be priorities for any Secretary of State in this country.”

We should hope not. While the Minister may be able to rule out those two specific examples today, we have to consider how the powers could be used, and not just how they might be expected to be used.

The concern that this is a very broad power has been further strengthened by the inclusion of the power to make payments outside healthcare arrangements. We have to ask what the Secretary of State is trying to solve by giving himself these additional powers. Let us look at what the powers do. There is no limit to the amount of payments he can make. There is no limit on who can be funded worldwide. There is no limit to the type of healthcare being funded. Such powers without qualification or any criteria being applied in the Bill are simply unacceptable, so a resolution of both Houses should be required, alongside an impact assessment of the costs and demands any regulations might place on the NHS.

On the costs, there is no limit on what the Secretary of State might pay. If we are to assume that this will come out of existing departmental budgets, who will receive less? I mention this not just in the context of extra payments that the Secretary of State may make for things not covered by agreements, but in terms of the burden on the NHS of delivering any new obligations, because, to be blunt, cost recovery has been suboptimal. As the Law Society of Scotland said:

“As the NHS has never been very effective in reclaiming the fees owed to it by overseas visitors to the UK, the UK may find itself substantially worse off financially when new arrangements for funding cross-national use of health services are put in place.”

The Government need to raise their game on cost recovery, and if there is an additional administrative burden on the NHS in setting up new systems of cost recovery because of new agreements reached, we need a commitment from the Minister to adequate resources to ensure that those services are delivered and the cost recovered.

We support the concept of reciprocal healthcare arrangements. They are a very good thing for our citizens and for visitors to the country, but it cannot be right to give the Secretary of State such a blank cheque. Amendment 146 will ensure transparency, accountability and a proper assessment of the obligations entered into by virtue of regulations under the clause.

[The Minister for Health (Edward Argar)]

The hon. Gentleman alluded to being shadow Minister during the passage of the previous piece of legislation, and that reflects once again his longevity in his post. I am grateful to the hon. Member for Central Ayrshire for amendment 110, and for bringing the issue before the Committee. It is right that we debate and air it in this forum. I am aware of the concerns, which she expressed extremely clearly, about the Secretary of State’s ability potentially to confer functions on, or delegate functions under the 2019 Act to, Ministers from the devolved Administrations. She highlighted the perfect example: the challenge that we inevitably face with elements of the devolution settlement. Delivery may rest with the devolved Administration, and is therefore a devolved power; concluding international agreements is a reserved matter and therefore one for the UK Government.

Understandably, the point of principle on both sides is not to concede consent but, from our perspective, to consult. I will come on to that in a minute. I appreciate the perspective brought by the hon. Lady and her colleagues in the Scottish Government. Let me reiterate the UK Government’s strong commitment to meaningful and ongoing engagement with the DAs on reciprocal healthcare. There is already a statutory obligation under section 5 of the 2019 Act to consult the devolved Administrations before making any regulations under the Act in areas within the competence of the devolved legislatures.

We are working with officials in the devolved Administrations on the development of a memorandum of understanding setting out how we will fulfil that duty in practice. Indeed, the memorandum goes further in undertaking to engage and consult the devolved Administrations, not just at the end of the implementation stage but from a much earlier stage. I appreciate that the hon. Lady may say that, although that is progress, it does not go far enough. I believe that good progress is being made, but I suspect that on Report, I will have to report back on where we have got to, and whether we have managed to find a way forward. The work continues to be done.

Turning to amendment 110, the regulation-making powers in HEEASAA—I was going to say that was a shortened version of the Act’s title; I might just refer to “the aforementioned Act”, which may save us a little time—are important as they provide the UK Government with the ability to implement international reciprocal healthcare agreements. The Government fully support the devolution settlement and, as I say, we would not normally confer functions on the devolved Administrations under the Act without their agreement and consent.

To date, we have used the power only to ensure that Ministers in the devolved Administrations can have a role in authorising planned treatment applications if they wish, but we need to ensure that when negotiating agreements and committing to international obligations we can be confident that we can implement them. Further, we are keen to ensure that Ministers in the devolved Administrations can continue to have a role in devolved planned treatment applications. I reassure the hon. Lady that we continue to explore the issue with the DAs. I do not want to pre-empt what may emerge from that. For that reason, I encourage her not to press the amendment to a Division at this stage. She may reserve her right to do so at a subsequent stage in the passage of the legislation.

Amendment 111 would introduce a duty to seek the consent of the DAs before making regulations relating to international reciprocal healthcare agreements that contain a provision within a devolved competence. Reciprocal healthcare agreements benefit all our residents across the UK, providing safeguards and support for our most vulnerable, as well as greater opportunities to travel, for work or leisure. Where an agreement is in place, those living in the UK can access affordable healthcare when they need it when travelling abroad.

As I have said on multiple occasions, we recognise the need to work with our friends in the devolved Administrations, but we cannot include a statutory consent requirement. That would risk the UK Government not being able to comply with our international obligations, and it would, in a sense, give the devolved Administrations a veto over a reserved matter. I do not understate the complexity of the way the constitutional settlement works in this context.

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[Karin Smyth (Bristol South) (Lab)]

I would like to live in the Minister’s world sometimes. What I am struggling to understand from him before he finishes—

[Edward Argar]

I have a long way to go yet, I am afraid.

[Karin Smyth]

It looked like he was finishing. My hon. Friend the Member for Ellesmere Port and Neston referred to the suboptimal collection of payments in the health service where they are due. When I was a member of the Public Accounts Committee, it reported on this issue, generally in the context of treatment for overseas patients. I am struggling to understand how the Government expect the NHS to manage this operationally, given how suboptimal overseas payments have been—prescription charge recuperation, for example. This strikes me as an incredibly complicated issue. When we talk about impact assessments, perhaps the Minister could tell us what work has been done in the Department to understand the impact on the service, and how people who are providing treatment are to understand where we have reciprocal arrangements and where we do not, and who is entitled to that treatment.

[Edward Argar]

I am grateful to the hon. Lady. We have made significant strides forward in making this easier and clearer for the NHS in recent years, recouping money where appropriate to help fund our NHS. We regularly update the guidance to trusts, which—as the hon. Lady will appreciate—are responsible for recouping funds where a patient is chargeable. They are increasingly consistent in how they apply those rules.

I concede to the hon. Lady, quite reasonably, that there are occasions when trusts do not apply the rules in a fully consistent manner. That is why we have taken steps centrally with NHS England to ensure that we pass very clear guidance to them; we do not believe that this will impose any heavier burden on them than is currently the case. Similarly, in the implementation of the agreement with the EU—again, it would be churlish not to admit it—we have faced some challenges in making sure that other countries understand their obligations to British citizens abroad under that agreement. That is in the nature of the early days of a new agreement.

Anecdotally, I receive correspondence on this issue from right hon. and hon. Members, and there was an increase in that correspondence at the very start of the year: Members were either saying that they had constituents who went abroad and did not receive the free healthcare they should have received, or were taking up the cases of people who visited this country who were charged and did not think they should have been, or vice versa. That correspondence has significantly dropped off in recent months, so with that caveat about it being anecdotal, I suggest that the new agreement has bedded in fairly efficiently. I have not had any responses from trusts saying that the way in which the agreement works has imposed any additional burdens on them that they cannot cope with.

Of course, there are other countries with which we already have different bilateral agreements, so I am confident at the moment that the administrative processes will be an effective extension of current processes but, as with all these things, I keep the issue under review. The hon. Member for Bristol South will know from her time in the NHS that if a trust found that the burden was significant or increasing, it would not hesitate to tell me. Equally, we are looking at reciprocal healthcare agreements here—we are not looking at a whole load of agreements, but dealing with them bit by bit, as we negotiate them, and we are allowing them to bed in. That was a long answer, but she made an important point.

It is time for the Government to build on our significant success in negotiating the agreement with the European Union and our new relationship, and to turn our attention to the UK’s relationship with countries outside the EU, as another strand of our global Britain strategy. That is why we are extending the geographical scope of the 2019 Act beyond the EEA and Switzerland and renaming it, as the hon. Member for Ellesmere Port and Neston said, the Healthcare (International Arrangements) Act 2019.

Outside Europe, we have limited healthcare agreements with a number of countries, which support people from the UK in accessing medically necessary healthcare. These agreements do not always provide comprehensive cover to those who need it; for example, a person suffering from kidney failure may be able to access emergency treatment if something happens to them while abroad, but they would likely have to pay for their ongoing dialysis needs privately.

The clause will enable the Government to implement comprehensive reciprocal healthcare agreements with other countries around the world by allowing for the reimbursement of healthcare costs and the exchange of data to facilitate this reimbursement. By implementing such agreements, we can better support people when they are abroad. Comprehensive reciprocal healthcare agreements can help people to access necessary healthcare services when they are travelling for leisure or business. Importantly, they can particularly benefit those with chronic health conditions, for whom travel insurance is very costly—or in some cases, sadly, completely unaffordable. Furthermore, agreements usually reduce the burden on NHS trusts, which would otherwise have to pursue individuals to recover overseas charges, as there is normally state-to-state reimbursement built into the agreement. Hopefully, the provisions will mean that we can reduce the debt owed to the NHS in an administratively unburdensome way.

Finally, reciprocal healthcare agreements can strengthen our relationships with countries around the world and foster greater healthcare co-operation, including on health security and research, the importance of which hon. Members on both sides of the House would acknowledge has been illustrated by the recent pandemic and the research around that.

The clause will enable the Government to implement more comprehensive agreements where that is to the benefit of the whole UK. We will also be able to improve arrangements to make them more effective. Our ambition is for new and improved agreements to be brought under the umbrella of the new UK global health insurance card, which will bring our EU and rest-of-the-world agreements together into a cohesive and visible service for UK citizens, and ensure that people can take advantage of their rights under these agreements.

During the 2019 Bill debates, which I confess to having read, the Government were asked to review the breadth of powers in that Bill after the conclusion of the EU exit negotiations. We have listened to the concerns expressed by the House, and our amendments to this Bill remove section 1 of the 2019 Act, which provided for a free-standing payment power and enabled the Secretary of State to make unilateral payments for healthcare in the EEA and Switzerland—a point to which the hon. Member for Ellesmere Port and Neston alluded. This power is no longer needed now that the withdrawal agreement and the trade and co-operation agreement are in place to protect the healthcare rights of UK nationals living in EU member states.

We are replacing that broad payment power with regulation-making powers. These can provide for payments to be made in two circumstances: first, to implement healthcare agreements, and secondly in countries where there is a healthcare agreement in place but the healthcare falls outside the scope of the agreement, and the Secretary of State determines that there are exceptional circumstances that justify payment. This latter element prevents a cliff-edge loss of rights in marginal cases.

As demonstrated in recent months, healthcare co-operation between countries is vital in our globalised world. Reciprocal healthcare provides safeguards and support for those who might find themselves in a vulnerable position, and supports greater opportunity for travel for those with healthcare conditions. As we move into the post-EU-exit world, we are excited to seize these new opportunities for global Britain. I therefore commend the clause to the Committee.

[Dr Whitford]

I welcome the drive to set up these reciprocal arrangements. One of the big losses of Brexit threatened to be the loss of the European health insurance card, and I am glad that arrangements have been reached with most European countries, although obviously not in some of the EFTA countries; that is still to be dealt with. I appreciate that the Minister recognises the particular importance of that for people on dialysis, who were unable travel under that scheme, as they require dialysis three times a week. The majority simply could not pay for it themselves, nor would insurance ever be likely to cover it, so I welcome the aim on that. It simply comes back to the need for genuine consultation with the devolved authorities, which would be delivering healthcare for those from the reciprocal countries arriving in the UK.

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[Edward Argar]

I do not think it is an entirely fair reflection to ask why it is taking so long to get to social care reform. We have already had debates about integrated care systems, integrate care partnerships and the integrated care board; a key element of that was about local government working with the NHS in the social care space, so that is a slightly unfair characterisation. Members will have heard the Prime Minister set out his ambitious plan to fix social care and waiting lists, with more to follow.

Clause 121 inserts proposed new section 46A into the Health and Social Care Act 2008, introducing a new legal duty for the CQC to review and make an assessment of the performance of local authorities in exercising certain regulated care functions related to adult social care. As part of the new legal duty, the commission will be required to publish a report of its assessment. The specific regulated care functions that local authorities will be assessed against will be set out in secondary legislation. These reviews will be informed by objectives and priorities set by the Secretary of State and will reflect indicators of quality and methodology devised by the commission and approved by the Secretary of State.

The commission may choose to revise the quality indicators and the statement describing the methodology periodically, or do so under the Secretary of State’s direction. In order to provide transparency, the commission must publish the objectives and priorities, the quality indicators that will inform assessments, and the statement describing the methodology. This new duty is crucial in increasing assurance and transparency about how local authorities are delivering critical adult social care responsibilities, on which so many people rely.

Amendment 145 would alter the proposed duty under proposed new section 46A of the Health and Social Care Act 2008, to require the Care Quality Commission directly to involve service users and providers when undertaking reviews of local authorities’ regulated care functions. I understand the spirit behind this amendment and sympathise with its aims. It is our intention that reviews by the CQC should draw upon a wide range of information and perspectives from the sector, including from providers and service users.

However, I do not feel this cause is best advanced through acceptance of this amendment. The views of people who use services, and the providers of those services, are already central to the way in which the CQC regulates. The CQC has a proven record of hearing a wide range of views since its creation over 10 years ago, both when it develops its methodology and when it assesses quality and safety in services. That is supported by section 4 of the Health and Social Care Act 2008, which places a duty on the CQC when performing its functions to have regard to views expressed by or on behalf of members of the public about health and social care services, and to the experiences of people who use health and social care services, and their families and friends.

Reviews under proposed new section 46A are not due to commence until 2023-24. As the CQC designs its approach to reviewing local authority performance before then, it will work closely with people who use health and social care services, their families, health and social care providers and the organisations that represent them, as well as other key stakeholders to ensure that its regulation is properly informed by a diverse range of views.

More detailed information on how local authorities’ reviews will be undertaken will be provided in a method statement, which the CQC must develop and the Secretary of State will approve. Section 46A(8) requires the CQC to produce a method statement outlining the method that it proposes to use in reviewing local authorities. This statement is a more appropriate place to set out operational details such as when and how providers and service users will be involved—the shadow Minister made a point about whether it would be guidance and whether it should be in the legislation.

I would like to further reassure right hon. and hon. Members, given the CQC’s publication of its new strategy, “The world of health and social care is changing. So are we” and “A new strategy for the changing world of health and social care” in May this year. That sets out a bold new approach to regulation, underpinned by a focus on what good and outstanding person-centred care looks like, and smarter use of data and intelligence. The CQC consulted on the strategy earlier this year, receiving more than 790 responses from people who use services, the public and voluntary groups and almost 400 from commissioning bodies and service providers. For the reasons that I have given, I would encourage the shadow Minister to consider withdrawing his amendment.

Let me turn to the relevant clause. Demographic change has resulted in more people having care and support needs, and we expect that trend to continue for the foreseeable future. As social care affects a greater number of people at some point during their lives, it is important that there is a transparent system through which local authorities can be held to account by their populations for delivering the right kind of care—I take the point, which I think the hon. Member for Nottingham North was making, about democratic elections, essentially, forming a key part of that; I do not disagree, but I believe it is important that there is a mechanism to assess quality of care in this context, and the best outcomes within the resources available. The measure delivers on that aim by requiring that assessment of how local authorities are delivering critical adult social care functions.

I believe that this new level of insight will support local authorities to understand what they are doing well and what they could do better. It will also help the Department to understand what is happening, forming an overarching national picture alongside the local-level assessments. I do not believe it challenges the parallel strands, which we have talked about before—the different approaches in a national health service versus local authority social care provision. I do not believe it threatens democratic oversight, either.

Turning to Government new clauses 60 and 61, new clause 60 provides the Secretary of State with powers to intervene where local authorities are failing to discharge their functions under part 1 of the Care Act 2014 to an acceptable standard. This will form one part of a new approach to assurance and support for local authorities, which will underpin our efforts to improve outcomes for people receiving care and support. Our new power of intervention will sit alongside this statutory CQC assurance framework. Where issues are identified, our priority will be to support local authorities to lead their own improvement. However, where CQC assessment identifies a persistent and serious risk to people’s wellbeing and local authorities are unable to lead their own improvement, it is right that the Government have powers to step in and help secure that improvement.

We will intervene using the most proportionate and appropriate tools available. That might include requiring local authorities to report to an improvement panel or co-operate with improvement advisers nominated by the Department of Health and Social Care. We have ruled out the use of independent trusts, whereby services are removed from local authority control and transferred to an independent charity or a commercial organisation. We will of course engage partners in the sector to finalise our approach, with additional detail to be set out in the forthcoming White Paper. Where necessary, the new clause gives the Secretary of State, or an individual nominated by the Secretary of State, power to take over the exercise of specified adult social care functions of a local authority.

In the light of our new approach to assurance and support, we are making changes to section 50 of the Health and Social Care Act 2008 through new clause 61. Where the CQC identifies failure, it may make recommendations to local authorities. It must also notify the Secretary of State of the failure and advise him on possible next steps to secure improvement. Because we are creating bespoke powers relating to adult social care services, we are taking adult social care functions under part 1 of the Care Act out of the scope of the existing powers of intervention under section 7D of the Local Authority Social Services Act 1970.

Our intervention amendments are key to ensuring that people can expect high-quality care, regardless of where they live; without clause 121, we would continue to lack a strong understanding of local authority performance, good practice and pioneering approaches that can support local authorities to meet the needs of those who rely on them for social care. I therefore commend the clause and the Government new clauses to the Committee.

[Alex Norris]

I am grateful for the contribution from the hon. Member for Central Ayrshire. I completely agreed with her point that, fundamentally, the No. 1 basic issue is a complete lack of investment, as we have seen over the last decade. Everything else after that becomes just tinkering around the edges, and there has been too much of that in this legislation. I share the hon. Member’s enthusiasm for taking a different approach—to stop treating social care as a burden and to understand our responsibility to working-age adults, but also to older people, and the investment and the national good of investing to ensure that those people can live independent lives and can reach their potential and do what they want to do. That we do not prioritise that in this country is a profound sadness.

Perhaps I was a little glib in the point that I made about the two clauses, and I am conscious that the Minister thinks that was unfair. He talked about other examples in which carers feature in the Bill. The reality is that each time it is about how care affects and reflects on the national health service. It is never about social care; it is about what the health service needs with regard to social care. Those two things are not the same. The point is that the Bill, for better or worse—we are not very enthusiastic about it—has 120-odd clauses about reforming the national health service and two clauses about reforming social care.

The problem is that for 11 years, or certainly for my entire four and a half years in Parliament, the Government have been promising a social care Green Paper that never comes. It is in a desk. It has supposedly been written for many years, but it never sees the light of day. Our failure adequately to grasp social care is really bad for society and terrible for the health service. That is why I made that point. How many more health service Acts do we have to see before someone finally tries to grab hold of social care? The reality is that we will have to see a change of Government for that to happen meaningfully.

The Minister’s comments on amendment 145 provided great comfort, so I will not press it to a Division. On the point that he made about needing a mechanism in cases where a local authority fails, in the most exceptional cases I agree with that, but what do we do when national Government fails? National Government have failed on that point for 11 years. The answer is that we wait until the next general election and try to persuade people. We have failed to do that three times in that period. That is right, but it also applies to local government, so I would not want to see that overused. I think I have made my point on Government new clauses 60 and 61, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Edward Argar]

I beg to move amendment 147, in clause 121, page 102, line 46, leave out “or”.

This amendment is consequential on NC59.

[The Chair]

With this it will be convenient to discuss the following:

Government amendment 148.

Government new clause 59—Care Quality Commission reviews etc of integrated care system.

[Edward Argar]

We tabled the amendments following the publication of recommendations by the Health and Social Care Committee on the Bill. The Committee recommended that the Care Quality Commission be given a role in assessing integrated care systems—the umbrella term, of course, for integrated care boards, local authorities and their system partners working collectively. We agree entirely; indeed, I thank the Committee for championing that agenda. The intention is for those reviews to provide the public and the system with independent assurance of how their ICS area is performing, and in particular the effectiveness of joined-up working and integration. Those reviews will be a valuable way to improve the services provided and encourage the effective joint working that the Bill enables.

[Edward Timpson (Eddisbury) (Con)]

I welcome the involvement of the CQC in reviewing the work and impact of the new integrated care systems, but other parts of public service provision, particularly children’s services, are regulated by other bodies—Ofsted, in the case of children’s social care. Can the Minister reassure me, either now or at a later stage, that those bodies will be involved in the initial discussions about what the reviews will look like, and how Ofsted may be able to provide input to ensure that the review encompasses all aspects of regulation and inspection that will touch on the ICSs.

[Edward Argar]

I am grateful to my hon. Friend for his comments. He is right that we must not at any point forget the interest of children and families in the context of the services being provided. I hope that I can give him the reassurance that he seeks. I certainly envisage that, as we draw up the system, and as what we are proposing becomes designed and operationalised, the process would encompass close co-operation with Ofsted and other relevant bodies to ensure that it does the job that it is intended to, and that no one falls through the cracks—for want of a better way of putting it—in that regime.

Our approach builds on the existing role of the CQC as the independent regulator of health and adult social care in England. Under the Health and Social Care Act 2008, it already reviews individual providers of health and social care. This Bill expands its role, as under clause 121 it will also have a duty to review and assess the performance of local authorities in delivering their adult social care functions under part 1 of the Care Act 2014.

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[Alex Norris]

I am glad to see this change added to the Bill. Since the publication of the White Paper, we have called for greater oversight of integrated care systems. We offered options in previous sittings around democratic accountability, which would be our preference, but we may have to settle for this change, which does represent progress. Integrated care systems—in particular integrated care boards, which will be the system in reality—will be powerful. They will hold billions of pounds in funds, and will author and manage care for the entire population—a lot of people. The quality of their work will go a long way to deciding the quality of local healthcare provision and, indeed, health outcomes in their communities.

It is right to have oversight of that work, to have a way to hold systems up against each other and understand where there is success and where there are greater challenges, and to use an established overseer with reputation, experience and a degree of independence—one that the public know how to engage with and contact. It represents the first bulwark against the system working in its own interests, rather than in the interest of population health, which is good news.

I have a couple of specific questions, but before asking them I want to make a general point to the Minister. I hope we do not lose one of the best things that local government does, and does much better than the health service, which is sector-led improvement. The idea is that as we have however many—150—local authority areas in England, they will develop an awful lot of great experience over time and can share it among them. I do not mean, “Here, read our manifesto—we’re wonderful,” but in a day-to-day supportive and developing way, which is better than just waiting for an inspection every four years.

Before I was elected to this place, I was a member peer, and I helped those in other health footprints on the exact point of integration, so I know that established people are already working in this field. I recall that it was at one of these sector-led, improvement-type activities that I first met my hon. Friend the Member for Ellesmere Port and Neston. That was eight or nine years ago, when we were the future once in local government, or perhaps in politics in general—and look at us now! Nevertheless, the point is that there is loads of really good work going on in the LGA, and I really hope to hear from the Minister that that will be seen as an asset, and could now be developed for all these systems as something that would really complement an inspection regime.

I will make two quick points about the inspection regime itself. Proposed new section 46B(3)(a) in new clause 59 says that the CQC will have to establish indicators. Will the Minister clarify what he means by that? Is it about things we would conventionally understand —outstanding, good, requires improvement, adequate—or similar? Again, this needs to be something the public can easily understand, and we need to be able to understand what it is trying to tell us.

Under proposed new section 46B(6)(a)(i), it would be left to the CQC to determine the frequency of inspection. I feel that that is rather a function for the Department, as it commissions the inspector, than for the inspector itself. I seek at least a sense from the Minister of the frequency we are talking about. I understand that it might be different for different footprints—I think it was the hon. Member for Eddisbury who mentioned Ofsted—depending on how their ICSs are doing at a certain point, but what at least is the broad frequency we are talking about?

Those are important details, and I hope to hear greater clarity on them, but the basic principle that there is oversight is one we are supporting.

[Edward Argar]

I will be relatively brief. I am grateful to the shadow Minister, and I think that on this we are in broad agreement. He raised a few specific points, about which I hope I can reassure him. On local authority sector-led improvement, I entirely share his view; I think it is an asset. We are in the business not of excluding ways to improve, but of creating new ways to improve. If we have something that—he is absolutely right—does add value, I would hope it is looked to as an asset to draw on, rather than pushed to one side.

Let me discuss the hon. Gentleman’s other points. On indicators, yes, I entirely agree with him. While we must wait for subsequent developments to assess exactly how we characterise those—we will be doing a system assessment rather than an individual provider assessment, with complex moving parts—I entirely agree with his underlying point, which is that the indicators ideally need to be consistent with extant ones, to be easily understandable and to convey a clear message on performance—be it outstanding, good or whatever—as something that is meaningful to all our voters and to those using the systems.

On the hon. Gentleman’s final point about frequency, I may disappoint him a little in not being able to give quite such a clear answer. I am being cautious because I think it is right that the CQC—when it is given this power, subject to the passage of the legislation through Parliament—can take a step back and consider what it thinks. The ICSs will be at different stages of development in different parts of the country; some will be very much advanced because of where they are now, and some will not be.

It would wrong at this stage to be prescriptive about that frequency. I suppose I would say—we have seen this with Ofsted—that some are inspected very regularly because there is clearly a problem that needs to be addressed, but others that are doing quite well will be assessed at regular, but less frequent, intervals. That does not give the hon. Gentleman a clear statistical answer, but I would expect regular routine assessments, obviously with the facility for the CQC to do more frequent assessments where it thinks something needs bottoming out or where it needs to support such improvement. I hope that that, to a degree, answers the points he made, all of which are valid and important.

Amendment 147 agreed to.

Amendment made: 148, in clause 121, page 103, line 3, leave out “or”.—(Edward Argar.)

This amendment is consequential on NC59.

Clause 121, as amended, ordered to stand part of the Bill.

Clause 122

Provision of social care services: financial assistance

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

I will be relatively brief. The clause will expand the Secretary of State’s powers under the Health and Social Care Act 2008 so that payments can be made to all providers delivering social care services. It will also allow the Secretary of State to delegate the new power to special health authorities via directions.

The power in the 2008 Act excludes providers that operate for profit. Given that social care in England is largely delivered by private providers operating on a profit-making basis, the Secretary of State is unable to make direct payments to much of the sector under the existing power. Crucially, the power can be used only by financial assistance bodies engaged in providing social care services or services connected with social care services.

The coronavirus pandemic has demonstrated the need for speed and flexibility in providing support to the care sector. Without the clause, our only means to deliver financial assistance to social care providers is via local authorities. We are clear that the power will not be used to amend or replace the existing system of funding for adult social care, whereby funding for state provision is funded via local authorities, largely through local income and supplemented by Government grant.

The new power will allow the Secretary of State to react to unforeseen and changing circumstances by directing financial assistance social care providers with greater speed and in a more targeted manner. That is one of the learnings that we are seeking to implement as a result of what has happened during the recent pandemic. I therefore commend the clause to the Committee.

[Alex Norris]

I will be very brief, not least because we will not divide the Committee. However, I could not let us go past the clause without mentioning the heading. I must read it from the Bill because it gives me so much pleasure: “Provision of social care services: financial assistance”. Wouldn’t that be something in this country?

It is quite something to see the Government seeking to establish a mechanism to fund social care because we have been waiting 11 years for them to do so. During tomorrow’s Budget, we will listen with interest for news of support for social care. Given that most of the Budget has been leaked already, I dare say we will be disappointed. I feel a little as though the clause is the parliamentary equivalent of being threatened with a good time.

We do not have any issue with the establishment of such a mechanism, although our preference would be for that to be done by the Department that leads on local government, rather than by the Secretary of State for Health and Social Care, because we think that that is confusing. However, we do not oppose the principle behind the clause.

I can foresee the scenario in which this power would be desirable, but I would like the Minister to reiterate on the record that it will not lead to the routine commissioning of private providers outside the commissioning plans of the local authority. Each local authority puts incredible efforts into commissioning services in its community. The last thing local authorities want is someone doing a sideline arrangement on a different matter. To be clear, this is an exceptional power—almost an emergency power—and not one that we would expect to be used frequently.

[Edward Argar]

I think I can give the shadow Minister that reassurance. The clause is intended to reflect some of the learning from the pandemic. There are occasions when such intervention is necessary, but there is no intention, as I said in my remarks, to in any way go round or replace the current commissioning functions of the local authority. I have had discussions with the Local Government Association on exactly that point, so I hope I can give him the reassurance he seeks.

Question put and agreed to.

Clause 122 accordingly ordered to stand part of the Bill.

Clause 123

Regulation of health care and associated professions

--- Later in debate ---

[Hywel Williams (Arfon) (PC)]

I shall be brief. I support my hon. Friend on this matter. Clearly, systems vary from one country to another. Indeed, a long time ago, I was involved in teaching social care staff, and we were ambitious to register all staff whereas, as I remember it, 10% of staff in England were going to be registered at that time. Across the UK, there are different approaches to health provision. As I have said before in the Committee, the Labour Government in Wales have adopted a wellbeing approach for many years, and I think the requirements of implementing such a wellbeing approach might vary from one country to another.

I restate my support for my hon. Friend on this matter and look forward to hearing what the Minister has to say about it.

[Edward Argar]

Amendment 112 would place on the Secretary of State a duty to obtain consent from the devolved Administrations prior to legislating using section 60 of the Health Act 1999, where such legislation would affect the devolved Administrations. Before I turn to the substance of the amendment, I will set out the benefits of regulating health and care professionals on a UK-wide basis. It is important that we have UK-wide standards to ensure the same level of public protection across the UK and to allow healthcare professionals the flexibility to work across the whole of the UK. We value and will continue to work collaboratively with our devolved Administration partners on the regulation of health and care professionals.

Each devolved legislature, as has been alluded to, has its own devolved arrangements in respect of professional regulation, which are a mix of reserved and devolved or transferred powers. In practice, any use of section 60 affecting professionals in Northern Ireland is exercised only with the agreement of the Northern Ireland Executive. In Scotland, consent is required in relation to legislation concerning healthcare professionals brought into regulation post the Scotland Act 1998. In the case of Wales, the regulation of healthcare professionals is a reserved matter, so consent is not sought.

In practice, the UK Government always seek the agreement of the NI Executive when making changes to the regulation of healthcare professionals, and the Scottish Parliament’s consent is required in the circumstances that I set out previously. The amendment would add to that by requiring consent in relation to any changes to the regulation of healthcare professionals affecting the devolved Administrations. In addition, legislation requires that section 60 can be used only following public consultation and the affirmative parliamentary procedure.

The purpose of the professional regulation system is to protect the public. Regulating health and care professionals on a UK-wide basis helps to provide consistency across the four nations and ensures that we continue to work together with the devolved legislatures to align workforce policy. For those reasons, although I appreciate the point underlying the amendment, I ask the hon. Member for Central Ayrshire to withdraw it.

[Dr Whitford]

We have had a lot of debate over recent years about whether we are aiming for lowest common denominator or to achieve the highest standard. The concern is about delegating or creating new grades of staff who are not expected to have the same level of qualification or training as the people they may be replacing within the health service. That is not always to the benefit of patient safety. We are really calling for meaningful engagement, which is not what we have seen before. It is important to recognise the impact that it would have on the devolved nations.

I totally recognise that professionals need to be able to work across the UK, but it should be about aiming for people to have the training, professionalisation, standards and regulation that they require and which is comparative to the job that they are doing and the service they are delivering for patients. We spent the whole morning on patient safety. The standard of the staff who deliver the care is the most important thing for patient safety. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Justin Madders]

I do so wish. I will not detain the Committee long on amendment 142. We are seeking to find ways of increasing awareness of rare and less common conditions among healthcare professionals. I readily accept that the amendment may not be a perfect vehicle for doing that, but the recent UK rare diseases framework included increasing awareness of rare and less common conditions among healthcare professionals as one of its four priority areas, partly due to the challenges that people within the community face in receiving accurate and timely diagnoses in primary care.

What mechanisms can be introduced to help to raise awareness of rare and less common conditions among healthcare professionals? Will the Minister consider introducing reforms to workforce training and resourcing to facilitate that because among the raft of the entire professional regulation process and a range of development issues, continuing development about and awareness of rare conditions is at the heart of proper and effective regulation?

[Edward Argar]

Amendment 142 would introduce a legislative requirement in section 60 of the Health Act 1999 for health and care professional regulators to raise professional awareness of rare and less common conditions where possible.

The purpose of regulating healthcare professionals is to protect the public. Regulators set the standards that registered professionals must meet; they also set standards relating to education and training. By ensuring that the standards are met, the regulators ensure that on an ongoing basis professionals have the right behaviours, skills, knowledge and experience to provide safe and effective care.

Section 60 of the Health Act 1999 provides powers to make changes to the professional regulatory landscape through secondary legislation. Each professional regulator has its own legislation that can be amended under the powers in section 60, which provides the framework for its establishment and remit. Although I have sympathy with the amendment’s aim and the points made by the hon. Member for Ellesmore Port and Neston about the need to ensure that health and care professionals are aware of rare conditions, I do not believe that writing such a requirement into section 60 of the 1999 Act is quite the right approach to achieve that.

All the healthcare professional regulators have the same set of objectives, which were placed on a consistent footing by the Health and Social Care (Safety and Quality) Act 2015. Those objectives are to protect, promote and maintain the health, safety and wellbeing of the public; to promote and maintain public confidence in the professions regulated under the Act; and to promote and maintain proper professional standards and conduct for members of those professions.

A key part of delivering those objectives is setting standards that require professionals to have the necessary skills and knowledge to practise safely. That includes knowledge and awareness of rare conditions where that is necessary for an individual’s practice. Regulators set the standards that healthcare professionals are required to meet in order to practise. Professionals have a duty to ensure that they provide a good standard of practice and care, which includes keeping their professional knowledge and skills up to date. That is set out in the guidance issued by the regulators.

For example, the General Medical Council’s “Good medical practice” sets out the standards required of a registered doctor. It specifies that a doctor must keep their professional knowledge and skills up to date, must be familiar with guidelines and developments that affect their work, and must recognise and work within the limits of their competence. That provides a clear framework that requires doctors to have knowledge of rare conditions where that is necessary for their practice.

The exact knowledge and skills required for each healthcare professional cannot be known or set by the regulator, but the current legislative requirements put in a place a framework that requires each professional to maintain the skills and knowledge needed to practise safely, including knowledge of rare conditions.

As experts in regulation, it is the responsibility of the regulators to determine what role they need to play in raising issues such as awareness of rare and less common conditions among their professionals. For those reasons, I encourage the hon. Member for Ellesmere Port and Neston to consider withdrawing his amendment.

[Justin Madders]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

The clause provides additional powers that will widen the scope of section 60 of the Health Act 1999 and enable the Privy Council to make additional changes through secondary legislation.

The powers will enable the abolition of an individual health and care professional regulatory body where the professions concerned have been deregulated or are being regulated by another body; the removal of a healthcare profession from regulation where that is no longer for the protection of the public; or the delegation of certain functions to other regulatory bodies through legislation which previously had not been allowed. The powers will enable the regulation of group of workers concerned with physical and mental health, whether or not they are generally regarded as a profession, such as senior managers and leaders.

The UK model of regulation for healthcare professionals is rigid, complex and needs to be flexible and to change to better protect patients, support our health and care services and to help the workforce meet future challenges. The case for reforming professional regulation has long been acknowledged. Stakeholders have long expressed concern that having nine separate professional regulatory bodies is inefficient and confusing to the public. Our 2019 public consultation response reflected the desire for fewer regulatory bodies to deliver benefits to the professional regulation system. In addition, an independent review of the regulatory landscape, in particular the existing roles of regulators, has been commissioned and is due to report by the end of this year.

The powers in clause 123 will enable future changes to be made to make the professional regulatory landscape more streamlined and work more flexibly. The powers will also make it easier to ensure that the professions protected in law are the right ones and that the level of regulatory oversight is proportionate to the risks to the public.

--- Later in debate ---

[Justin Madders]

As the Minister has told us, the clause seeks to amend section 60 of the Health Act 1999 in relation to making changes to the professional regulatory landscape through secondary legislation. It will simultaneously widen the scope of section 60 and extend the Secretary of State’s powers. Members may have picked up a theme by now: whenever there is a chance for the Secretary of State to seek more power, he uses this Bill to obtain it.

At the moment, the Government have powers to bring new professions into regulation or make modifications through secondary legislation, but can remove a profession from regulation only through primary legislation. This clause will enable the removal of a profession through secondary legislation and makes it clear that a profession would be removed from regulation only when that was no longer required for the purpose of protecting the public—but then I would hardly expect a statement from the Government about deregulating only where there is a risk.

While at one end of the spectrum one could argue that virtually all interactions with patients might have some element of risk, the more balanced view might be that while not all interactions carry the same risk, it is likely that all professions at some time undertake acts where the consequences of mistakes for the patient will be significant.

I am left wondering exactly what the yardstick will be and what criteria will be used to determine when there is no longer a need to protect the public. Is that the only criterion to be applied? Does professional regulation not also help to facilitate consistent common standards? What is lacking at the moment is any sense of the principles that will be followed to inform decisions to bring professions into regulation or to remove them. Will patient organisations, representative bodies and regulators be consulted on any new criteria to be applied?

I appreciate that, as the Minister said, section 60 of the Health Act 1999 already contains requirements that legislation should be published in draft, subject to a three-month consultation, specifically with affected professionals and service users, but it would be helpful if he confirmed that that is the absolute minimum. I have to say, though, that even if the answer to that is yes, it seems a fairly minimal procedure for abolishing an entire profession. I am not sure that will cut it in terms of Parliament, never mind the public being satisfied that due diligence has been done to assess the overall risk profile of any particular role in the system. I am concerned about where that would leave matters such as professional indemnity insurance, as well as about any knock-on effect on the reassessment of bandings under agenda for change.

The more one looks at this, the harder it is to see how it could be done properly in the timescales envisaged. There are just under 700,000 registered nurses in the UK. One can see how resource-intensive it would be if every one of them responded to a consultation to abolish their profession. I suspect the Minister will tell us that he has no plans to abolish professional regulation for doctors and nurses, but imagine if he did. This process would be wholly inadequate, which leads to the question: what exactly does the Minister, or more accurately the Secretary of State, have in mind when it comes to these powers? If we got some answers on that today, it might help us to decide whether these procedures were adequate and also whether the powers are necessary at all.

Moving the power to abolish professions to secondary legislation is not putting scrutiny and transparency at the forefront, and doing so without putting any indication on the record of which professions are being considered for derecognition under this power does not instil confidence that this power grab has been considered properly or is in fact needed at all. The implications for the devolved nations, particularly Scotland, are also important. There are differences in regulation and it is not clear what would happen if there were a difference of opinion between England and the devolved nations.

Clause 123(2)(d) inserts new subsection (2ZZA) into the Health Act 1999. I would welcome the suggestion that the scope of regulation could be extended to others who might not necessarily be regarded as professionals. It remains to be seen who or what this power will be used for, but I question whether the vehicle proposed is sufficient. More needs to be done. The 2019 Interim NHS People Plan states:

“It cannot be right that there are no agreed competencies for holding senior positions in the NHS or that we hold so little information about the skills, qualifications and career history of our leaders. A series of reports over the last decade have all highlighted a ‘revolving door’ culture, where leaders are quietly moved elsewhere in the NHS, facilitated by ‘vanilla’ references. These practices are not widespread, but they must end.”

I do not know whether this will be the right vehicle for tackling this issue, but it certainly needs tackling.

On clause 123(3) and the power to abolish regulatory bodies, the case has been made rather better—most notably by the Health and Care Professions Council, which sees this as an opportunity for some much needed modernisation, with a multi-professional regulatory model that would allow regulators to retain their individual identities and independence. That would see each regulator continue to operate its own register, oversee fitness to practise processes, liaise with relevant professional bodies and set its own educational standards relating to the professions they regulate, but there would be greater collaboration, with shared back-office services and other resources, which would presumably improve efficiency.

That approach has some benefits although I am also mindful of the evidence submitted by the Professional Standards Authority, which warned:

“Any mergers would be likely to lead to a period of turbulence of three-to-five years.”

It may be of interest that the authority also said that in the coming five or so years, it expected turbulence in the NHS and referred to the Bill as part of that turbulence. Of course, there are also the issues that we have discussed many times in this place about the pandemic’s impact.

On the overall impact of clause 123, I am sure that we can all agree on the need for robust, independent processes to ensure that any decisions made are in the public interest and based on a clear assessment of the risk of harm arising from practice. It is an obvious thing to do. It is important that individuals belong to a profession because that provides a framework of standards to uphold, encourages expertise and respect, and brings a higher level of professionalism, and, crucially, accountability to the public. However, it is far from obvious how the clause will assist those aims or why in going down the road of deregulation we would want to put those important principles at risk.

[Edward Argar]

I am grateful to the shadow Minister. His points coalesce around a number of key themes that I shall seek to address. He highlighted his concern about why we would do this and the potential disruption of either a lack of regulation in some spaces were we to abolish regulators or of that caused by moving functions. The key point here is that this is about creating a power that enables flexibility in the system that is not currently there. It is not that we have any direct or immediate plans to do this but about creating, in the context of the opportunity provided by the legislation, a framework whereby we could move powers around. There are some points sitting underneath that which I shall try to address.

The current section 60 powers are limited in terms of the changes they can deliver in the professional regulatory framework. We can use secondary legislation to bring a new profession into regulation and create a new regulatory body, but we do not have equivalent powers to remove a profession from regulation or close a regulatory body and move functions without primary legislation. Widening the scope helps us to ensure that professional regulation delivers public protection more consistently and efficiently, recognising the dynamic, to a degree, nature of evolving professional regulation.

On his concern about abolishing regulators, I know the hon. Gentleman will appreciate that there is no intention of doing that. But he rightly asks, “But what if?” It is the role of the Committee to look at that. Were a regulator to be abolished, that would not necessarily mean that the professionals they regulate would cease to be regulated. Current legislation allows a number of professions to be regulated by a single body, and that creates the mechanism to allow those movements and transfers.

To give an example that some might raise, would that mean that the GMC could be abolished? It is an extreme example, but hopefully it illustrates the point. The scope of the power to abolish a regulator covers all health and care professional regulators. However, the key point is that a regulator will be abolished only if the professions have either been moved to another regulator or removed, or deemed to be removed, from regulation altogether. Any use of this power is subject to existing legislative provision, namely a public consultation and the affirmative procedure. However, to take the example I gave, there are no plans to abolish the GMC, because clearly there would always be a need for continued regulation of medical practitioners. Therefore, given that the GMC regulates them, it would continue to do so.

Underpinning that concern is whether the removal of a specified profession entirely from regulation would increase in any way risks to public safety. Again, a profession would only be removed entirely from regulation following an assessment that showed the profession no longer required regulation for the purposes of public protection and that risks could therefore be safely managed, effectively and efficiently, outside statutory regulation. Given the nature of the professionals that we are talking about here, that would be highly unlikely in any of those spaces and I do not anticipate it. Any use of the power to remove a profession from regulation would be subject to consultation and, again, the affirmative parliamentary procedure.

The counterpoint could be why more professions are not included in regulation. From time to time we debate particular professions as new treatments, such as cosmetic treatments, emerge. Given the risks that some may pose, the question of whether there should be greater regulation then arises. Although statutory regulation is sometimes necessary where there are significant risks in the use of services that cannot be mitigated in other ways, we believe that it is not always the most proportionate or effective means of assuring the safe and effective care of service users. Therefore, each situation needs to be assessed carefully on its own merits. We have seen colleagues from the across the House making the case for regulating different aspects of professions, or service providers that have effectively become professional or are providing a service that is regularly used. Rather than a blanket approach, we believe that remains the right way.

[Dr Whitford]

I wonder whether, within this, there is a consideration of the issues within the cosmetic surgery and treatment field, particularly the use of Botox and the injection of fillers, which often result in side effects, and the fact that even cosmetic surgeons, as opposed to plastic surgeons, are not regulated in the same way. The problem is that whenever those medical terms are used, the public assume that they are dealing with a licensed medical professional who is both registered and regulated.

[Edward Argar]

The hon. Lady makes an important point. I pay tribute to my hon. Friend the Member for Sevenoaks (Laura Trott) for her private Member’s Bill, which began putting a framework around Botulinum fillers and who could or could not access them, with age limits. My right hon. Friend the Member for Mid Bedfordshire (Ms Dorries) was then the Minister responsible, but she was self-isolating and awaiting test results, so I had the privilege of speaking in that debate. As often happens on Fridays, it was an interesting and well-informed debate, rather than a political to and fro, as occasionally happens in the Chamber. The hon. Member for Central Ayrshire highlights an important point.

My right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) has taken a close interest in the issue, as have hon. Members across the House. I am due to meet her to discuss this more broadly in the context of this legislation. I do not want to pre-empt that meeting and the upshot of it, but I take on board the point made by the hon. Member for Central Ayrshire.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[Justin Madders]

I beg to move amendment 116, in clause 124, page 106, line 34, at end insert—

“(4A) In subsection (4) in paragraph (e), after “examiners” insert “including the requirement to investigate stillbirths and deaths related to childbirth”.”

This amendment would extend the medical examiner remit to look at still births and maternity cases.

This place has come a long way in recognising, discussing and acting on the tragedy that is baby loss. It has taken us a long time to get there, and there is still a long way to go, but we hope that this amendment will help us to continue on that journey.

The Minister will be aware of the November 2017 announcement on the possibility of coroners being asked to conduct inquests into stillbirths and the subsequent consultation—I believe he was the Minister who initiated that consultation, which was needed. In 2017 the Court of Appeal highlighted the need for reform. It said that the law relating to coronial investigations of stillbirths had not changed since 1887, and:

“Still-birth is a tragedy that continues to befall many families in advanced societies but it was a phenomenon more common in the past… The public interest in establishing whether a child was or was not stillborn, and if it was not how it came by its death, is apparent and continuing.”

I am sure those words will resonate with all Members, who will recognise that during the tragedy of stillbirth, parents will want to know why it has happened to them. Although a coronial investigation is no guarantee that answers will be forthcoming, it may relieve the sense of loss that they feel and may help in some small way.

The Government response to the consultation has been delayed somewhat, and they have said that they are not seeking to replace the role of the NHS in investigating stillbirths, but coronial investigations would

“supplement and support those investigations and ensure that coroners can contribute to the learning and play a role in reducing the stillbirth rate.”

Any update on when the response to the consultation will be published would be appreciated.

In essence, the amendment seeks to build on the comments made by the Royal College of Pathologists, which stated when that announcement was made back in 2017 that medical examiners should in fact play a far greater role in investigating stillbirths, as

“medical examiners are ideally placed to identify trends relating to deaths”

and to highlight areas for further improvement. The Government’s roll-out of medical examiners so far has not included investigations into stillbirths. The purpose of the amendment is to get underneath the rationale for that and to press for the issue to be reconsidered. If we are to have a separate debate on clause stand part, I will leave my comments there in order for the Minister to respond.

[Edward Argar]

I am grateful to the hon. Gentleman for giving us, through amendment 116, an opportunity to debate and discuss this issue. Every stillbirth and death related to childbirth is a tragedy, and it is only right that we remain absolutely committed to supporting parents and families during such a difficult time. However, we are not convinced that this amendment is necessary in order to do that, and I will explain why in due course.

Following the passage of the Bill, the Secretary of State will make, in relation to England, regulations underpinning the medical examiner system, which will set out that the functions of medical examiners include confirming the cause of non-coronial deaths as stated by the doctor on the medical certificate of cause of death. The intention is that that will include confirming the cause of deaths of mothers in childbirth. As part of proposals to improve and digitise the medical certificate of cause of death, we are proposing the introduction of a new section on the certificate that will allow information relating to pregnancy at the time of death to be recorded. Recording information relating to pregnancy on the medical certificate of cause of death will provide a more accurate way to measure maternal deaths, and bring the certificate used in England and Wales in line with certificates used in other countries.

On stillbirths specifically, it is the case that between March and June of 2019, as the hon. Gentleman alluded to, the Ministry of Justice—I was in the Department at the time, as he set out—and the Department of Health and Social Care jointly consulted on proposals for coroners to investigate term or post-term stillbirths. The proposals are intended to improve the independence and transparency of reviews through independent investigation by coroners as judicial office holders outside the NHS. Work on analysing the responses to the consultation was delayed during the covid-19 pandemic, but the Government hope to publish the response to the consultation as soon as possible.

The Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 also requires the Secretary of State to make arrangements for the preparation of a report on whether and how the law ought to be changed to require coroners to investigate stillbirths, and provides a power to make those changes within five years. At such a time as the response to the consultation on proposals to provide coroners with new powers to investigate term stillbirths is published, it will be appropriate for the position on medical examiners also, potentially, to be considered.

There are existing processes for investigations of stillbirths, including the perinatal mortality review tool, introduced in 2018, and investigations by the Healthcare Safety Investigation Branch. I would like to highlight the importance of parents having the opportunity to be involved in the reviews and investigations. In early 2018 the perinatal mortality review tool was introduced to support NHS maternity and neonatal units in England, Wales and Scotland to undertake high-quality, standardised reviews of the circumstances and care leading up to and surrounding each stillbirth and neonatal death. The aim of the perinatal mortality review tool is to support objective, robust and standardised reviews to provide answers for bereaved parents about why their baby died, as well as ensuring local and national learning to improve care and, ultimately, prevent future baby deaths.

Since April 2018 the Healthcare Safety Investigation Branch has been responsible in England for all NHS patient safety investigations of maternity incidents that meet the criteria for the Royal College of Obstetricians and Gynaecologists’ Each Baby Counts programme, of which there are approximately 1,000 cases each year. That includes all cases in which a term baby was considered to be alive and healthy at the onset of labour but the birth outcome was severe brain damage, intrapartum stillbirth or neonatal death, and maternal deaths, to identify common themes and influence system change.

Both the perinatal mortality review tool and the Healthcare Safety Investigation Branch provide the opportunity for parents’ involvement in the investigation of stillbirths, which is essential to help provide answers for bereaved parents and to improve care.

I will not prejudge what the response might be to the consultation that we spoke about earlier, but I invite the shadow Minister to perhaps draw his own conclusions about my thinking on this, given that I believe it was my signature on the front of that document and I was the Minister who fought to be able to launch it. On that basis, I gently encourage him to consider not pressing his amendment to a vote on this occasion.

[Justin Madders]

In the light of the Minister’s encouragement, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

Clause 124 will amend the statutory medical examiner system in the Coroners and Justice Act 2009 so that English NHS bodies may appoint medical examiners to scrutinise deaths, instead of local authorities. Appointment of medical examiners by NHS bodies will facilitate their access to patient information in order to scrutinise the proposed cause of death while remaining clinically independent of the case. The medical examiner system will introduce a level of independent scrutiny, improving the quality and accuracy of the medical certificate of cause of death and thereby informing the national data on mortality and patient safety.

The medical examiner system will increase transparency and offer bereaved people the opportunity to raise concerns. It will provide new levels of scrutiny to help identify and deter criminal activity and poor practice. New duties on, and powers for, the Secretary of State to ensure enough medical examiners are appointed by English NHS bodies and are provided with sufficient resources and monitoring will help to facilitate and develop this system. As a result of the introduction of the medical examiner system, all deaths would be scrutinised by either a medical examiner or coroner, irrespective of the decision to bury or cremate, thus bringing the system on to an equal footing. I therefore commend the clause to the Committee.

[Justin Madders]

As the Minister has outlined, the purpose of medical examiners is to provide greater safeguards to the public by ensuring proper scrutiny of all non-coronial deaths; to ensure the appropriate notification of deaths to the coroner; and to provide a better service for the bereaved and, importantly, give them an opportunity to raise any concerns to a doctor who was not involved in the care of the deceased. It will also hopefully improve the quality of death certification and mortality data. These are all worthy aims that we can support, so the challenge for the Minister is to set out how the Government will benchmark the success or otherwise of medical examiners in achieving those aims. For example, can he tell us what improved quality of mortality data will actually look like? Does he envisage this leading to further system changes down the line, or is it too early to tell?

Another area I would be grateful for a little more detail about is set out in proposed new section 19(A3) of the Coroners and Justice Act 2009, which gives the Secretary of State the power to

“give a direction to an English NHS body—

(a) requiring the body to appoint or arrange for the appointment of one or more medical examiners,”

setting out the funds and resources that should be made available to such employed medical examiners, or setting out the means and methods that may be employed to monitor the performance of those medical examiners. Can the Minister tell us exactly who that body might be? Does the Secretary of State have a view on how many medical examiners might be needed, and what the appropriate level of funding might be?

I also want to ask about clause 124(8), which amends section 20 of the 2009 Act. That section provides a power to make regulation to require a fee to be payable in respect of medical examiners’ confirmation of cause of death. The clause will require any such fee to be payable to an English NHS body, rather than a local authority. Does the Department have a position on fees? Are they desirable? Has a level been set for them? What consultation has taken place about that level, and indeed the principle of charging a fee? It would be a shame if medical examiners were not accessible to the majority of people because of a barrier being created by a fee. If the Minister could answer those questions, it would be appreciated.

--- Later in debate ---

[Edward Argar]

A number of points have been raised. The shadow Minister, the hon. Member for Ellesmere Port and Neston, asked whether we would envisage this leading to system change if a pattern was identified and whether it could be a catalyst for that change. Absolutely—that is part of what we hope would come out of this. I am pleased that we are legislating now on this issue, but the hon. Member for Central Ayrshire is right about the time it has taken. I acknowledge the example from Scotland; I do not always agree with everything done in Holyrood, but to give credit where it is due, I recognise the progress that Scotland has made in this space.

The hon. Member for Ellesmere Port and Neston made a number of points generally revolving around resources, fees and similar issues. I hesitate to put a figure on exactly how many medical examiners or what level of resource would be needed at this stage, but I will seek to address his point about fees and resourcing in broader terms. He will know that, in the non-statutory system, medical examiners are funded through the existing fee for completing medical cremation form 5, in combination with central Government funding for medical examiner work not covered by those fees. With the temporary removal of cremation form 5 as a provision of the Coronavirus Act 2020, all costs are currently covered by central Government, but that is temporary. The Coroners and Justice Act 2009 includes provisions for making regulations to introduce a new fee for the service provided by the medical examiner, and any such regulations will be subject to further parliamentary debate and scrutiny before their passage.

On the overall cost, the reality is that our estimated cost will be informed by the impact assessment published in 2018 and the data gathered from the non-statutory medical examiner system introduced in the NHS in 2019. We have seen a slightly atypical year or 18 months, so I hesitate to put an exact figure on this, but we have a broad evidence base from which to extrapolate. It predates the pandemic but it probably still has relevance. I am sorry that I cannot give him more direct data, but I would not want to pluck out a figure for him and then, quite rightly, be held to account for it in due course. I cannot do that but I hope that I have given him and the hon. Member for Central Ayrshire some reassurance on those points.

Question put and agreed to.

Clause 124 accordingly ordered to stand part of the Bill.

Clause 125

Advertising of less healthy food and drink

[Dr Whitford]

I beg to move amendment 113, in clause 125, page 107, line 12, at end insert—

“(2) Regulations made by the Secretary of State under any section of the Communications Act 2003 inserted by Schedule 16 may only be made with the consent of the Scottish Ministers, the Welsh Ministers and the Northern Ireland Ministers.”

This amendment would require the Secretary of State for Health and Social Care to obtain the consent of the devolved governments before the powers granted by Schedule 16 clause are exercised.

--- Later in debate ---

[Hywel Williams]

I will not repeat the points that my hon. Friend the Member for Central Ayrshire made about what is sometimes called the jagged edge of devolution—in this respect, that public health is devolved, but the regulation of broadcasting is not. I am not contesting that this afternoon, but I seek assurance that the Welsh Government, along with the Scottish Government, will be properly consulted, and their views listened to.

I will make two points on schedule 16. On the point that the hon. Member raised about small and medium-sized enterprises, in Wales, particularly rural Wales, food and drink businesses are overwhelmingly microbusinesses employing one, two or three people. It would be unusual indeed to have such a company employ more than 250 people, which I think is the definition of an SME. I therefore assume that those small producers will not be affected by the schedule, and will be exempt.

A point that has been made to me—perhaps the Minister could give me an answer to this—is that there are umbrella bodies that promote certain foods. The one that springs to my mind is Hybu Cig Cymru—the red meat authority in Wales—which promotes lamb and beef. It promotes red meats extensively, and advertises, particularly on S4C, the Welsh language channel, which I think helpfully has lower advertising rates. Would that particular umbrella or trade body, and others, be affected by the legislation?

[Edward Argar]

This is an important clause and set of amendments, so I fear I may detain the Committee on them for a little while. However, it is important that we air a number of points. I am grateful to my hon. Friend the Member for Eddisbury, the hon. Member for Ellesmere Port and Neston and others, because when we talk about digital platforms, including in other pieces of legislation and, indeed, in democracies around the world, we are essentially grappling with whether they are platforms or publishers responsible for content. I think it is fair to say that that debate continues in legislatures around the world, which presents a fundamental challenge.

I will pick up on a few questions while they are fresh in my head, and I suspect that I will cover the others in my prepared remarks. The hon. Member for Ellesmere Port and Neston asked why there is no watershed equivalent online, and how that might operate. The short answer is that it reflects the nature of online media: it is on demand, rather than linear, as with a terrestrial or satellite broadcast, though we see slight changes to that now, with Sky boxes—other online platforms are available for TV—the ability to record things, catch up, and so on. The situation is changing, and is not quite as binary as it used to be, but that is the primary reason.

If it is agreeable to you, Mr McCabe, I will discuss the amendments first, then turn to clause 125 and schedule 16. I hope that, with my extensive notes, I will be able to mop up and scoop up a number of the questions asked. If I do not, I will ask my officials to have a scan of Hansard, and I will endeavour to write to hon. Members prior to Report to cover any points that I omit. I will then address new clause 55, which relates to the clause and schedule.

I am grateful for the opportunity to discuss amendment 113, which would require the Secretary of State for Health and Social Care to obtain the consent of the DAs before any of the regulation-making powers granted by schedule 16 of the clause were exercised. As I am sure members of the Committee will be aware, the provisions in clause 125 and schedule 16 on advertising less healthy food and drink will extend to the whole of the United Kingdom.

We consider the provisions in this part of the Bill to be primarily focused on online services and broadcast restrictions, which are not devolved realms of responsibility. I appreciate that the hon. Member for Central Ayrshire and her colleagues in the Scottish Government might have a different interpretation of the same point—it is in the nature of the constitutional settlement that such discussions occur—but telecommunications and internet services remain reserved matters under the devolution settlement. The UK Government have made it clear that the primary purpose of the provision on the advertising of less healthy food and drink on TV and internet services is to regulate content on reserved media, internet and broadcasting. On that basis, we hold to the view that it is reserved. The purpose is not incidental—hence our argument that it does not fall within the devolved provisions and the devolved remit—but I suspect that we may return to this debate in the coming months.

[Dr Whitford]

I totally recognise, as I recognised in my remarks, that this area is reserved, both as regards broadcasting and online, but obviously the nations consider taking different public health approaches. Given that this is a UK-wide approach, it is important that it is joined up. I totally accept that the Minister is not interested in accepting consent, but there is no mention in the clause of consulting. I would have thought it important that there be discussion of the public health approaches of the four nations, in order to ensure that centralised policy in this Parliament lines up and reflects policies across the UK.

[Edward Argar]

I take the hon. Lady’s point. Although we did not think it necessary to put “consult” in the Bill, I accept that a joined-up approach to public health matters across the four nations of the United Kingdom is beneficial. I expect close working at both official and ministerial level to continue, and I therefore expect consultation and discussion to be ongoing.

As I am sure members of the Committee would agree, the restrictions on advertising on TV and internet services are crucial in contributing to the Government’s goal of tackling childhood obesity, and I welcome what I think is cross-party support for that goal. Through these provisions, we have the opportunity to remove up to 7.2 billion calories per year from children’s diets in the UK. None the less, for the reasons that I have set out, the Government believe that amendment 113 is not appropriate in this context, so I hope the hon. Lady will withdraw it.

I am grateful for the opportunity to address amendments 139 to 141. As the Committee will know and as I have said, tackling obesity is a priority for the House, irrespective of which side one sits on. That has been brought into sharp focus throughout the covid-19 pandemic. Introducing advertising restrictions for less healthy food and drink products is one of the many policies that the Government are bringing forward to tackle this issue. Following extensive consideration of the evidence submitted and comments made by stakeholders during the consultation exercise, we have announced that we will introduce a 9 pm TV watershed for advertising for less healthy food and drink products, and a restriction on paid-for advertising of such products online.

Amendments 139 to 141 would expand the definition of “less healthy products” to include alcohol, which would have the effect of making alcohol advertising liable to the watershed proposed for TV programme services, and to the online restriction of paid-for advertising. The UK Government are committed to ensuring that children and young people are suitably protected from alcohol advertising and marketing through a set of rules in the UK advertising codes. Restrictions and limitations laid out in the UK advertising codes provide that alcohol advertising may not be featured in any medium where more than 25% of the audience is under 18. Alcohol advertising must not be likely to appeal strongly to young people under 18, reflect or associate with youth culture, or show adolescent or juvenile behaviour—I make no comment there about the behaviour of the House on occasions. No children, and no one who is or appears to be under the age of 25, may play a significant role in advertising alcoholic drinks. The advertising codes apply to broadcast media and non-broadcast media, including online advertising. We do not believe it is necessary to consider alcohol a less healthy product in this context, or to apply the new restrictions to it.

As we will discuss in more detail shortly, clause 125 and schedule 16 are aimed at reducing the exposure of children to advertising for less healthy food and drink, and at reducing the impact of such advertising on child obesity. Less healthy food and drink products are unique, as they are not age-restricted at the point of purchase, unlike alcohol.

--- Later in debate ---

[Alex Norris]

It is a pleasure to speak on the important topic of hospital food standards. We very much support the substance of the clause, and its inclusion in the Bill. What we consume before, during and after we engage with a hospital can have a profound impact and long-lasting effects on the ailment that brought us there, and affects our experience while we are there.

Even prior to being in hospital, malnutrition is a feature in many people’s lives. It affects about 3 million people in the UK, and health and social care expenditure on malnutrition is estimated at more than £23 billion a year across the UK. Around one in 10, or 1.3 million, older people are malnourished or at risk of malnutrition, and older people are disproportionately represented in malnourished groups. Of course, malnutrition plays a significant role in hospital admissions; around one in three patients admitted to hospital are malnourished, or at risk of becoming so.

This is the right time to act on this issue. We ought to expect that a person’s time in hospital will be used as well as possible, and what a person consumes while they are there should be seen as part of their care, reablement and rehabilitation. It is a good idea to make sure that our hospitals promote that view, and we therefore support the clause. Our amendments 137 and 138 would improve it, and I hope to find the Minister in listening mode on this.

The whole point of the Bill is that while hospitals are one element of our health and social care system, there are many other places in the system that people are more likely to find themselves in. They may be in community-based care facilities, in step-up or step-down care, or a care home, which could be their permanent home. We argue that anything within the purview of the Care Quality Commission ought to adhere to the standards set out in the clause. The evidence bears that out. Somewhere between a third and 40% of patients admitted to care homes, and one in five patients admitted to a mental health unit, are at risk of malnutrition, so clearly they would need this sort of support.

For those in long-term care settings, nutrition is a vital part of their care. Research has shown the importance of good nutrition to people with dementia; it slows the loss of independence or functional decline. Research shows that nearly 30% of dementia patients experience malnutrition, and that is associated with a much more rapid functional decline over five years. It is really important that we make sure this provision is in place for them; it is fundamental to their life and their future.

Of course, the issue with the two amendments and the clause is resourcing. I am interested to hear from the Minister how the Government intend to resource the clause, because we do not want pressure on hospital settings—and settings in the community, if our amendments are accepted—to make cuts elsewhere. It would be a pyrrhic victory if the clause led to better nutrition but worse care. We need to see the measures as not only the right thing to do—of course, it is what individuals should expect when in the care of the state—but a good investment that will bring us a good return. This is an important issue, and I look forward to hearing the Minister’s response.

[Edward Argar]

As matters stand, the enforcement of standards for food and drink in hospital is not on a statutory footing. That has resulted in variance in compliance across the sector. The clause will grant the Secretary of State the power to make regulations imposing requirements and improved standards for food and drink provided and sold on NHS hospital premises in England to patients, staff, visitors or anyone else on the premises. As the hon. Gentleman set out, providing good-quality, nutritious food is a cornerstone of patient care, and placing these requirements on a statutory footing will ensure a level playing field when it comes to compliance across the sector with nutritional standards in hospitals.

The Care Quality Commission will ensure that any requirements in regulations made under the clause are fulfilled, pursuant to its existing statutory powers of enforcement under the Health and Social Care Act 2008. The clause demonstrates that we are committed to acting on a key recommendation from the independent review of NHS hospital food, published in October 2020, to ensure that hospital food standards are enshrined in law and sufficiently enforced .

To address amendments 137 and 138, as I have set out, the clause has been drafted specifically in response to the independent review of NHS hospital food, which was published on 26 October 2020. That independent review was announced in August 2019, following the deaths of six people linked to an outbreak of listeria in contaminated food in hospitals. The review’s aims were to improve public confidence in hospital food by setting out clear ambitions for delivering high-quality food to patients and the public. The review was intentionally limited to hospitals only because specific issues had been identified in relation to hospital foods that necessitated a prompt and meaningful response by the Government.

The report was prepared following considerable research, investigation, hospital visits and expert advice from within and outside the NHS specifically in relation to the provision of hospital food. The review recommended that ambitious NHS food and drink standards for patients, staff and visitors be put on a statutory footing. We support that recommendation and have included the clause in the Bill because we believe that giving the Secretary of State powers to place hospital food standards on a statutory footing sends a clear message about the importance of standards for the provision of good hydration and nutrition in the NHS. Covid-19 has highlighted the importance of good nutrition in recovery and rehabilitation, were such a reminder needed.

I reassure hon. Members that the Government are committed to the health and wellbeing of patients in all healthcare settings. Each setting presents unique issues and challenges. Although there may be some common themes, if the clause were to be broadened beyond hospitals, the provision of food in other healthcare settings would need to be researched, investigated and carefully considered in the context of those individual settings and in consultation with their service users and stakeholders to ensure that the legislation was fit for purpose and met their individual needs. Challenges affecting the provision of food in other healthcare settings were not considered as part of the scope for the independent review of hospital food. Therefore, although there are common themes, we cannot be sure that the amendment would adequately and fully meet their needs and requirements.

The recommendations from the review, and the introduction of the clause, form a key part of our policy to improve public confidence in hospital food. I commend the intention behind the amendments to expand the clause to capture all premises within the remit of the Care Quality Commission.

The CQC already has some important powers over other healthcare settings. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 provide the CQC with powers to prosecute providers that do not provide people in their care with nutrition and hydration to sustain life and good health and reduce the risks of malnutrition and dehydration while they receive care and treatment. That power ensures that basic nutrition standards are provided.

The clause goes further and is not about basic provision. The root-and-branch independent review made recommendations on how NHS trusts could prioritise food safety and provide more nutritious meals to staff and patients. The clause is a key component of our plan to fulfil the recommendations of the review. I reassure hon. Members that the CQC remains vigilant about the provision of nutrition and hydration in other healthcare settings, as evidenced by the CQC’s powers.

For these reasons, I urge the hon. Member for Nottingham North not to press the amendments. Ultimately, the clause cements the Government’s commitment to patients in this regard and sends a clear message about the role that food plays in patient care and recovery. I commend it to the Committee.

[Alex Norris]

I appreciate the Minister’s response. I understand that the genesis of the clause was a hospital setting. The case that the Minister mentioned was exceptionally serious, and it is right that action was taken, but I feel that there is a slight lack of ambition to say that the activity must stop at hospitals—it is a slightly blinkered approach. I heard the point that extending the provision to broader care settings would take research and careful consideration. I probably support that principle, but I would like to have heard that that process is under way, and I did not hear that.

At the end of the day, the goalposts do not move that much. Basic nutritional and hydration standards are either being met or they are not. Taking the learning from hospital settings should have made it easier to widen the process, rather than harder. The point that the CQC inspects those settings is true and fair. It is also true of hospital settings. Setting some standards would probably have been prudent. I will not press the amendment, but I think we will return to the issue at some point. I hope the Minister and his officials will reflect on the opportunity to go further with the provision .

[Edward Argar]

I am always happy to reflect on the sensible suggestions made by the hon. Gentleman.

[Alex Norris]

I am grateful for that and, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 126 ordered to stand part of the Bill.

Clause 127

Food information for consumers: power to amend retained EU law 

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

I can reassure the Committee that I will be a little briefer than in my remarks on clause 125.

Clause 127 amends the Food Safety Act 1990 to make provision for domestic legislation to modify retained EU regulation 1169/2011 concerning the labelling, marketing, presentation or advertising of food and the descriptions that may be applied to food. The current powers to amend the regulation are limited in scope. This power will afford the Government an additional necessary lever to introduce domestic changes that better suit and support consumer needs and priorities for food information. We know that consumers want transparency and clear information about the food and drink that they are buying, and such information can inform people’s choices. Scientific information and evidence on labelling and consumer needs continue to evolve. We want the ability to respond quickly to those changes and that changing evidence base as and when required.

Retained EU regulation 1169/2011 sets requirements on labelling and food information in the UK. It was designed to apply to EU member states. Now that we have left the EU, primary legislation is required to modify the retained legislation. Clause 127 will help us to settle this issue by conferring powers on the Secretary of State in England, and Ministers in Scotland and Wales, to modify requirements on food labelling using regulations. The regulations made under this power will be subject to the affirmative procedure, which will ensure that any changes introduced are debated and actively approved before implementation.

The clause will be vital in supporting the Government to deliver on a range of policies being developed as part of our obesity strategy, which includes commitments to consult on front-of-pack nutrition labelling and whether to mandate alcohol calorie labelling. The power will enable us to make improvements to food and drink information more effectively while retaining a level of scrutiny on any proposed changes. The clause can also help us to deliver on wider Government objectives, including options for the forthcoming food strategy White Paper, which sets Government ambitions and direction for food system transformation. I commend clause 127 to the Committee.

[Alex Norris]

The Minister and I have had these Brexit-type statutory instruments time and time again, so I am not going to get too involved in the conversations that we have had. As we said in the discussion on clause 146, we would like to see greater safeguards. We are glad about the use of the affirmative procedure but we do not think that there is a strong mandate for Ministers to march across the statute book. I hope to hear that this power will be used to the minimum extent necessary to implement the decisions that we have taken.

[Edward Timpson]

I want to put on record my support for the clause and for the opportunity that it presents for our domestic market and the promotion of locally grown produce, the high standards of animal welfare across the UK and our eco credentials. We do not want to make labelling too complicated for people––we want to make it accessible and simple to decipher––but this power is a chance to put that to the forefront so that consumers get produce that is good for them but also good for the UK market.

[Edward Argar]

I just want to give the shadow Minister the assurance he seeks that I believe that the powers under this clause would be used sparingly and proportionately.

Question put and agreed to.

Clause 127 accordingly ordered to stand part of the Bill.

Clause 128

Fluoridation of water supplies

--- Later in debate ---

[Alex Norris]

I am grateful for that intervention; I was going to turn to that issue next. Not only have opportunities been missed over the last decade to invest in oral health, but we are actually going backwards. Supervised tooth brushing and other high-quality evidence-based interventions, such as the models that the hon. Member mentioned, have disappeared because of this Government’s cuts to the public health budget. Of course, the savings from those cuts are hoovered up very quickly by the costs that they generate elsewhere in the system. It is very sad, it results in a lot of pain and lost potential for the individual, and it is bad for the collective.

Fluoridation is one element in trying to put that right. Putting fluoride in our water is a really good, evidence-based intervention that is proven to work. For every pound spent in deprived communities, there are savings of nearly £13 within just five years, and of course every independent review of fluoridation has affirmed its safety. As a nation, we ought to be creating new fluoridation schemes targeted at the communities that would benefit the most. The current system does not work, as I remember well from my time in Nottingham. Currently, a local authority has to decide to enter into this space, build support, and then, with support from Public Health England and the Secretary of State, move to implementation. However, that generally fails for two reasons.

First, our political boundaries do not match up very accurately with our water boundaries, so where we would physically tip in the bag of fluoride does not fit with our political geographies. That creates issues between authorities such as mine, where the case would be very strong because of our oral health outcomes, and bordering authorities that would have less interest because they have better oral health outcomes. Secondly, this issue is contentious. Local authorities have an awful lot on, and it is very hard for a local council to make this the one totemic fight in its four-year term. There are only so many big things that a council can take on at once, and fluoridation gets beyond the bandwidth of local authorities.

We support the principle behind clause 128; bringing the Secretary of State into this is a very good idea. The position of the Secretary of State, once removed from the entire country, can make different geographic decisions sensibly align with water boundaries. He is perhaps also in a stronger position to help with some of the political issues, so in concept we support that.

Amendments 149 and 150 are a pair. Why are the Government keen to swap the current local system for one that is nationally driven, when we could have both? As I have said, we support adding the heft of the Secretary of State to the local expertise of our councils, but why remove councils from the process? Although clause 128 gives new powers to the Secretary of State, our argument is that local authorities should be able to retain their powers in the event that they might want to use them. This is a cost-free proposal. It merely expands the range of possible approaches and paths towards fluoridation, and it promotes local decision making.

Clause 128(2)(d), which inserts new subsection (6B) into section 87 of the Water Industry Act 1991, is a little bit naughty, and amendment 150 seeks to address it. According to page 43 of the Government’s community water fluoridation toolkit, if a local community can successfully get itself together to get a scheme going, Public Health England is required to meet the reasonable capital and operating costs. I presume that that responsibility ported to the new Office for Health Improvement and Disparities when it came into force at the beginning of this month. However, subsection (6B) removes that provision and instead allows the Secretary of State to direct another body—I presume it will be the local authority—to pay for the scheme. Therefore, instead of being paid for nationally, the scheme will be paid for by a body chosen by the Secretary of State. That will be a barrier to the creation of a scheme.

I think that local authorities will be less keen to engage with the Secretary of State in implementing a scheme if they feel that they will have to pay for it. Their budgets are exceptionally stretched—I suspect they will not get much support tomorrow—and the benefits do not generally go back to local authorities. Of course, the benefit goes to the community in general, but in terms of organisations and cashable benefits, they would be health service benefits rather than local authority benefits. I do not think that the proposal promotes integrated thinking. The amendment seeks to address that, and I hope that the Minister will reflect on it. As I have said, I think that, broadly speaking, the clauses do the right thing, but their current effect will be to replace a locally led system with a nationally led one, when actually we could just have both.

To conclude, over the past year we have stood shoulder to shoulder with the Government in expressing to communities up and down the country that vaccines are not only safe but necessary. The objections that we receive come from those who argue in the face of evidence or who rely on conspiracy theories. The same is true of arguments against fluoridation. It is an evidence-based, safe and highly effective intervention. That is not to say that it is easy to do. It does not require behaviour change but it has a remarkable impact, so I am keen to hear from the Minister not only that the Government want to put this in the Bill, but that they want to get on with doing it in communities such as mine, which will benefit. If they do that, we will stand shoulder to shoulder with them again, and I think it will be an exceptionally important breakthrough in oral health in this country.

[Edward Argar]

The hon. Gentleman is absolutely right in the points he makes about fluoridation and the parallels he draws with the vaccine. Although there have been times over the past 20 months when he and I, and our respective Front-Bench teams, have not necessarily agreed on every aspect of the response to the pandemic—that is appropriate, as the Opposition seek to challenge and question the Government—may I pay tribute to him and his colleagues in the shadow health team for what they have done to highlight the importance of the vaccine and to counter the misinformation that some have spread about it?

I will speak to amendments 149 and 150 together, as the former is consequential on the latter. They would allow for local authorities to bring forward proposals for new fluoridation schemes and to enter into arrangements with water companies. As has been set out, tooth decay is a significant, yet largely preventable, public health problem. In 2019-20, more than 35,000 people aged 19 or under were admitted to hospital for the extraction of decaying teeth. In the same year, the cost of hospital admissions for tooth extractions among that age group was estimated to be £54.6 million.

As we know, fluoride is a naturally occurring mineral found in water and some foods, and at the right levels it has been shown to reduce tooth decay. If five-year-olds in England with low levels of fluoride drank water containing at least 0.7 mg of fluoride per litre, the number experiencing decay would fall by 28% in the most deprived areas, and the number of hospital admissions for tooth extractions due to decay would reduce by up to 68%.

We have seen no new water fluoridation schemes implemented for the past 40 years. Both major parties in the House must accept our responsibility for that. That is not a fault of the NHS or local government, but because responsibility in our view has sat fundamentally at the wrong level for driving forward such a health intervention. Local authorities currently have the responsibility to initiate new water fluoridation schemes or to propose that existing schemes are varied or terminated. We have heard their frustration with the overly burdensome and complex processes in place for initiation and variation of schemes. The steps we are proposing to take through the Bill are intended to make it simpler to expand schemes. We all share the same ambition.

Transferring responsibility to central Government will allow us, for the first time, to move away from the limitations of local authority boundaries and to look more strategically across the country, to where oral health is the poorest. Subject to funding being agreed, we will be able to expand schemes across larger areas to make an impact on a bigger scale. We know it is less cost-efficient to operate schemes across individual local areas.Allowing local authorities to continue to bring forward schemes and to enter into arrangements with water companies separately would run counter to our ambitions to manage expansion at a higher level, again adding extra complexity, which we are eeking to remove.

We understand that some local authorities have begun the process to bring forward schemes, and we appreciate that they are passionate about their schemes and the benefits that they would bring to the populations they serve. I want to provide assurance that we share the ambition to expand schemes so that more of the population can benefit from water fluoridation, which we know is both safe and effective.

Any plans to expand schemes will of course take into account oral health across the country as well as areas that have already began to progress schemes. We want to engage and listen to local areas so that together we can make the biggest impact on oral health improvement that we know fluoridation will provide. For those reasons, I ask the hon. Member for Nottingham North to consider withdrawing his amendment.

On amendment 151, we are taking powers in the Bill to remove the operational burden associated with bringing forward new schemes. Prior to 2013, both the NHS and local authorities had, at different times, responsibility for funding both revenue and the capital cost associated with fluoridation schemes. There are no current proposals for cost sharing, but given the cycle of legislation and the infrequency with which such opportunities present themselves, we have taken the decision to include such measures in the Bill.

We have discussed the provisions with both NHS England and NHS Improvement and the Local Government Association, and I can assure the Committee that should we bring forward any plans to cost share in the future, we would seek to fully engage with relevant groups at the earliest opportunity. Under the Bill, any plans to cost share with public sector bodies would be subject to regulations on which there is a requirement to consult.

A precedent has been set over the decades for the funding of water fluoridation schemes. We believe that, to move forward, it would be best to have the flexibility to work collaboratively across industry and the public sector to effect what could be the most significant improvements in oral health that we have seen to date. For those reasons, I ask the hon. Member for Nottingham North to consider not pressing the amendment to a Division.

Clause 128 would transfer the power to initiate, vary or terminate water fluoridation schemes to the Secretary of State. The clause also allows for the Secretary of State to make regulations that will enable the sharing of costs for fluoridation schemes with water undertakers and/or public sector bodies that may receive benefit from such schemes. However, before making any such regulations, the clause imposes a duty on the Secretary of State to consult. The clause also requires the Secretary of State to consult water undertakers on whether any proposal for new fluoridation schemes, or whether any termination or variation of an existing scheme, is operable and efficient prior to undertaking any public consultation, for which there will also continue to be a duty.

The clause requires us to set out in regulations the process for consulting the public, for example on any new proposed schemes. That will ensure that those affected will continue to have a voice. In September, the chief medical officers for England, Scotland, Wales and Northern Ireland made a joint statement confirming that water fluoridation is an effective public health intervention for improving the oral health of adults and children. Such schemes have been in operation for more than 60 years, and no credible evidence that they cause health harms has emerged. It is time we take action that will enable us to reduce the oral health inequalities across the country, and I commend clause 128 to the Committee.

I turn briefly, and finally, to clause 129. We have a number of existing water fluoridation schemes across England that have been in place for decades. We want to ensure that those existing arrangements can be treated in the same way as any new schemes created using the powers in clause 128. Clause 129 simply provides for the existing arrangements to be treated as if they were made under the new statutory regime for fluoridation. The clause also provides that all previous England fluoridation arrangements shall be treated as if they were entered into between the Secretary of State and the water undertaker. The Secretary of State has the power to modify the detail of these existing arrangements to give effect to this, provided he first seeks to agree the modifications with the water undertaker.

I therefore commend these clauses to the Committee.

[Alex Norris]

I take the Minister’s point about current powers. I agree that they are clearly at the wrong level, because these schemes simply are not coming through, so the system is obviously not working. As I say, I would rather we added what we are putting in the Bill today to what we already have, but I have probably made my point, so I do not intend to press amendments 149 or 150 to a Division.

The Minister has made the point that there are currently no schemes in the system. I hope that when it decides which schemes to prioritise or pilot, the Department might at least look fondly on local authorities—such as the city of Nottingham—that have made such commitments in their council plans.

Finally, on amendment 151, I have heard what the Minister said about cost sharing. That gave me some comfort, so I will not press that amendment to a Division either. I beg to ask leave to withdraw amendment 149.

Amendment, by leave, withdrawn.

Clauses 128 and 129 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Steve Double.)

Health and Care Bill (Eighteenth sitting)

Edward Argar Excerpts

Committee stage
Wednesday 27th October 2021 Public Bill Committees

[The Chair]

I call the shadow Secretary of State—sorry, the shadow Minister.

[The Minister for Health (Edward Argar)]

Ah, a promotion—almost.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

Mrs Murray, it really is a pleasure to serve under your chairmanship this morning. I echo the comments from the Scottish National party spokesperson. She is correct that the Bill gives the Secretary of State extensive powers—almost carte blanche in some areas—to change the law. We think that taking back control means Parliament taking back control. Elected politicians are meant to serve the people, not the other way round. Some very valid points have been made about the themes and issues across the Bill, and we echo those.

[Edward Argar]

It is a pleasure to see you in the Chair again, Mrs Murray, and to hear of the inadvertent promotion of the shadow Minister. I am sure it is only a matter of time, certainly if his longevity in his current post and being master of his brief are anything to go by.

I am grateful to the hon. Member for Central Ayrshire for raising this matter. I will address amendments 114 and 115 together, as one is consequential on the other, and then I will address the clauses. As the hon. Lady rightly says, she has raised this matter with me not only in this Committee but outwith it. I would have been surprised had she not wished to air it in Committee, which is exactly what we are here for.

The amendments would require the Secretary of State to seek the consent of Ministers of the relevant devolved Administrations before making a consequential amendment to any matter that falls within the competence of the devolved legislature. Provisions such as clause 130—she suggested I might say this—are perfectly common in UK Acts of Parliament, and we believe they remain within the spirit of the devolution settlement. The UK Government’s clear position is that, in and of itself, clause 130 would not give rise to the legislative consent motion process, for reasons that I will set out. We deem that a requirement for the consent of the DAs for its use would therefore be inappropriate.

This power will enable the UK Government to make consequential amendments that might be necessary following the passage of the Bill. That includes most of the amendments that need to be made to secondary legislation as a consequence of the Bill’s provisions As such, amendments were not included in the Bill. There may also be minor changes, such as amendments to names of particular bodies—the hon. Lady knows me and the position that Her Majesty’s Government take on these things extremely well—as a result of measures in the Bill.

It is also prudent to retain the power to amend legislation in the event that anything has been missed. It is important for everyone concerned that we have the ability to make such amendments should they be needed to ensure that the legislation works as intended and that we are able to do so quickly, as required.

As I said, this power is quite common in UK legislation, particularly in a Bill as large as the Health and Care Bill, which—as we know, as we reach the end of the current set of clauses—comprises 135 clauses and 16 schedules. There are many examples of similar powers to clause 130 in existing legislation. Perhaps the one with the greatest relevance, giving the most directly analogous example, is section 303 of the Health and Social Care Act 2012.

As a general principle, it is appropriate that the authority passing the legislation makes the consequential provisions that flow from it, as that authority will be most familiar with the provisions of the legislation and the changes to other legislation that it necessitates. We are seeking legislative consent from the devolved Administrations in respect of a number of provisions in the Bill and we have debated those in recent days, but clause 130 does not, in and of itself, give rise to the LCM process. It is the substantive provisions in the Bill, on which any amendments under clause 130 would be consequential, that do or do not, as the case may be, give rise to the LCM process.

Finally, although this power will enable the UK Government to make consequential amendments to devolved legislation, in practice, any amendments would be discussed with the DAs, officials and legal advisers prior to and throughout the drafting process. These arrangements follow wider good practice and expectations of collaborative working.

[Dr Whitford]

Will the Minister give way?

[Edward Argar]

Yes, but I am not sitting down just yet, so the hon. Lady will have more opportunities to intervene.

[Dr Whitford]

I just remind the Minister that the Cabinet Secretaries in the devolved nations saw this huge Bill the day before it was launched, so although there may have been engagement with officials, that does not suggest that there was engagement with the Governments, which he is saying we should depend on, along with close working.

[Edward Argar]

I take the hon. Lady’s point but, on engagement with officials, I would argue that it is in a sense a matter for officials in the Scottish Government whether they communicate with the Cabinet Secretary. They were not prohibited from doing so. I will not go into the inner workings of the Holyrood machine, just as, I suspect, the hon. Lady would not wish to go into the inner workings of the Department of Health and Social Care. However, that dialogue has taken place since February this year. I appreciate that there has been a slight challenge with that, given the Holyrood elections and purdah, where, although officials can continue to talk, there was rightly a bit of stepping back at a political level so that democracy could take its course. It took its course and the same party continues to run Scotland, so those conversations resumed. My point is that those discussions at official level have been long standing and extensive, I would hope. I suspect that officials have shared elements with the Cabinet Secretary—perhaps not the entirety, but they have been very much engaged.

I hope that that explanation provides some reassurance to hon. Members, although I suspect that it may not. I suspect that the hon. Lady anticipated that explanation, and it may therefore not add further reassurance, but I hope that it does to a degree.

Let me move on to clauses 130 to 135 stand part of the Bill. As we heard in the foregoing debate, clause 130 allows the Secretary of State to make provision by regulations, which is consequential on the Bill. The Bill contains a significant change to the legal framework of the health service. As a result, numerous consequential amendments to other pieces of primary and secondary legislation are required to reflect those changes.

The power is limited to making amendments consequential to the competence of the Bill and is therefore a narrow power. It is, as I said, a standard provision in a Bill of this size and complexity. A considerable amount of secondary legislation will require amendment following the merger of NHS England and NHS Improvement and the change from clinical commissioning groups to integrated care boards. It would not be appropriate to use primary legislation to list all of those secondary legislative changes. Therefore, the consequential power will be used to make such changes in secondary legislation.

The power extends to making consequential amendments to primary legislation passed by the devolved legislatures, because devolved legislation contains references to UK legislation or bodies that may need to be amended in consequence of this Bill. The power applies only to existing primary legislation—this Bill itself, or primary legislation passed during this Session—and therefore future primary legislation may not be amended under the power conferred by this provision.

Clause 131, again, is a common part of a Bill. It sets out the scope of regulation-making powers in the Bill generally and the parliamentary procedure for making such regulations. Subsection (1) provides that regulations made under the Bill may include

“consequential, supplementary, incidental, transitional or saving provision”

and can make

“different provision for different purposes.”

Subsections (3) and (4) set out the parliamentary procedure for making regulations under this legislation.

Clause 132 is also a standard clause concerning financial provision. It simply provides that any expenditure incurred by the Secretary of State under the Act shall be paid out of the consolidated fund, in accordance with the Supply and Appropriation (Main Estimates) Act 2021.

Clause 133 sets out the territorial extent of the provisions of the Bill. It provides that while most of the provisions in the Bill extend only to England and Wales, a small number extend UK-wide. In addition, the bulk of the England and Wales-only provisions—in particular, the vast majority of part 1—will in fact apply only in England, as they concern the health service in England only. The following provisions, listed in subsection (2), extend to England, Wales, Scotland and Northern Ireland: the renaming of NHS England in paragraphs 1(3) and 1(4) of schedule 1; the Secretary of State’s powers to transfer and delegate functions in part 3 of the Bill; and the carve-out of the health services safety investigations board from any legislative provision to require disclosure of information in clause 109.

In addition, the amendments to other legislation made by the Bill will have the same territorial extent as the provision that is being amended. Examples of this include clause 120, which makes provisions about reciprocal healthcare arrangements, and clause 85, which allows provision to be made for the establishment of medicines information systems. A full analysis of territorial extent and application in the UK can be found in the explanatory notes. In earlier sittings, we debated the consequences of the Bill in Wales, Scotland and Northern Ireland and any issues relating to devolution as and when they have arisen. I suspect we may return to those issues on Report, and that their lordships may wish to debate them in the other place.

Clause 134 sets out when the provisions in the Bill will come into force once it has been passed. Most of the Bill will be brought into force on a date to be set in regulations, as provided for in subsection (3). Again, that is a common approach for a Bill of this type, and allows for flexibility. While the Government are committed to implementing the vital reforms to the health service that are contained in the Bill, we will be able to confirm the precise date on which provisions will come into force when it has completed its parliamentary passage—clearly, we cannot pre-empt Parliament. It is likely that it will be appropriate to bring different provisions of the Bill into force at different times.

Finally, clause 135 provides that, once passed, the Bill may be cited as the Health and Care Act 2021. I therefore commend these clauses to the Committee.

[Dr Whitford]

I appreciate that the vast majority of consequential changes that might be made by the Secretary of State would be minor, and most of them would apply to England. However, I am sure the Minister will also understand that the United Kingdom Internal Market Act 2020, which has taken away powers over certain aspects of public health, environmental control, infrastructure and so on, is felt in Scotland as a direct threat to devolution. Such clauses are therefore seen as threatening, in that the Bill is so big that it would allow extensive consequential amendments, particularly—as the Minister referred to himself—under clause 131(1)(b), which allows for

“different provision for different purposes.”

Many Opposition Members find the undefined scope disquieting, and we have seen this extensively over the past three years. I would therefore wish to press amendment 114 to a Division.

Question put, That the amendment be made.

--- Later in debate ---

[Edward Argar]

I beg to move, That the clause be read a Second time.

New clause 62 adds to section 164 of the National Health Service Act 2006, enabling regulations to be made that would allow further products to be centrally stocked and supplied free of charge to community pharmacies without the need for reimbursement under the standard NHS arrangements. This would allow Ministers to create limited additional exemptions to the exemptions that can already be created by the regulation-making power introduced in 2017 for unlicensed medicines, more commonly known as “specials”.

As was recognised in 2017, the legislative framework for pharmaceutical remuneration established by section 164 is predicated on the basis that community pharmacies will be reimbursed for the products they supply. Unique conditions required the unlicensed specials medicines amendment to be tabled in 2017 due to an unconventional supply chain. Unusually, there was no competition and, therefore, no incentive for community pharmacies to seek value for money for unlicensed medicines.

Under normal conditions, a virtuous competitive circle would encourage community pharmacies to try to source the lowest cost product and, in doing so, force overall prices down. The 2017 amendment allowed for regulations to be made so that the process of sourcing the relevant products could be by central procurement and subsequently there could be direct supply to community pharmacies. No such regulations have yet been made, but the matter remains under review.

The amendment only seeks to further add, in a limited way, to the current powers to make regulations to provide for an exemption from the ordinary requirement to reimburse. The only products that it will cover are vaccines, pandemic treatments, and associated products such as diluents and syringes. There are various reasons why we may seek to procure centrally vaccines or products used to treat a pandemic, for example when the typical competitive supply chain and reimbursement arrangements cannot be relied on, because pressures from global demand mean that central purchasing and direct supply to community pharmacies is critical to maintaining continuity of supply for UK patients.

In those circumstances, if centrally purchased products, rather than being supplied directly to pharmacies, were sold to wholesalers, that would risk wholesalers exporting or selling the stock at a much higher price than is usually paid, thereby playing the market. In this example, that would defeat the original purpose of the central stockpile.

When supplying products directly to pharmacies free of charge, we do not want to reimburse pharmacies as well as purchasing the stock, as that would mean the Government or taxpayer paying twice. Currently, as I have indicated, the legislative framework only makes provision for the reimbursement price of specials to be set at zero. We are restricting those to vaccinations and immunisations, medicinal products used for the prevention or treatment of disease in a pandemic, and associated products. By carving out these niche, critical—but understandable, I hope—exceptions in the legislation in that way, we recognise the importance of not undermining the supply and reimbursement arrangements more generally and broadly across the piece. Furthermore, the legislation will also ensure that in the case of pandemic treatments, once the disease is no longer a pandemic, the appropriate arrangements will be put in place to transition back to normal supply and payment arrangements.

The new clause is important to ensure that centrally purchased stock of essential medicines intended for patients in England can be distributed to community pharmacies to meet clinical need and support patient access, whether that applies to a vaccination or treatment in connection with a pandemic. For those reasons, I ask the Committee to support the new clause.

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to serve again with you in the Chair, Mrs Murray. As I said yesterday, we are grateful for the Minister writing with his explanation of this and the other new clauses ahead of time. That was helpful.

As the Minister explained in his letter, the new clause will simplify and safeguard the process of remuneration where the Government centrally procures vaccines, immunisations or products used to treat a pandemic, as well as other listed products, replacing “special medicinal products” under the previous legislation, in particular when there is significant international demand. That is very topical and we have a rich understanding of it given the events of the past 18 months, so it makes sense to the Opposition and we will not dwell on it long, nor will we press the new clause to a division. However, I seek clarity from the Minister on a couple of issues.

In the Minister’s letter, he cited the risk of wholesalers exporting the products or selling them at a much higher price if they were fed into the conventional supply chain. He characterised that as market failure. Community pharmacies would then be claiming reimbursement from the NHS based on the drug tariff determinations. I do not doubt the risk of that, and it is a foreseeable one, but am keen to hear from the Minister whether he is able to quantify the risk or demonstrate examples in either case. For example, during this pandemic, did that happen at the beginning? What was the cost if that took place? Have there been examples of profiteering preventing necessary products from reaching the patients for which they were intended?

In a second point, I am curious about the arrangements put in place to transition back to normal payment arrangements, once the disease in question is no longer pandemic or at risk of becoming pandemic. Again, I think we would always want restoration of normal circumstances at the first appropriate moment. In his letter, the Minister describes the arrangements as “appropriate”, while the new clause reads:

“Where…the Secretary of State considers that the disease to which it relates is no longer a pandemic disease or at risk of becoming a pandemic disease, the Secretary of State must revoke that provision within such period as the Secretary of State considers reasonable”.

Given that section 164 of the National Health Service Act 2006 also allows the Secretary of State to determine remuneration, that feels a little like the Secretary of State being allowed to mark their own homework. It could leave such measures in place for as long as suits them, rather than for as long as necessary, because the only determination of their need sits with that person. Will the Minister offer some reassurance that the power is for an emergency and is exceptionally limited, and give the Committee some comfort about the oversight and how Parliament perhaps will be given the chance to challenge the Secretary of State, so that the measures are not kept in place for any longer than necessary?

[Dr Whitford]

I have a small comment following on from the hon. Gentleman, who was asking for evidence of profiteering on specials. I was on the Committee considering the Health Service Medical Supplies (Costs) Act 2017 and brought the issue of specials before the Committee. These are often personalised medicines. In Scotland, they are produced centrally by the NHS, but there is certainly huge evidence of profiteering on them within NHS England, with hundreds of pounds being charged for simple ointments. While we may not have evidence on vaccines, evidence of profiteering on specials is long standing.

[Edward Argar]

I am grateful to the hon. Lady for helping to reduce the number of the shadow Minister’s questions that I need to answer. The hon. Lady makes her point well. We saw early on in the pandemic the challenges of a globally competitive market and the incentives and disincentives that can create around supply. I will not go into other aspects of supplies purchased for the NHS during the pandemic, but we have seen what happens when a market becomes super-saturated with demand versus a very limited supply, hence why we believe the steps in the new clause are prudent.

The shadow Minister will be familiar with approach in the new clause; it was used, for example, for covid vaccines, which were centrally secured and supplied directly to pharmacies. While we felt that supply could be justified on the basis of conventions of statutory interpretation that allowed us necessary flexibility in those exceptional circumstances, we think it is appropriate that we put such measures on a proper legal footing—through debate and, if necessary, Division in the House—to future-proof our arrangements. We are not trying to radically alter NHS pharmaceutical service provision or the payment mechanism. The aim is actually to strengthen the legal basis, and indeed the democratic oversight of that legal basis, through this debate in this Committee, for scenarios in which usual supply routes need to be bypassed.

The shadow Minister also raised a couple of other points, mainly about the Secretary of State’s power and Parliament’s role going forward, if I may paraphrase it in that way. I take his point. Judgments will obviously be based on advice from officials and legal and scientific advisers, but to a degree it is in the nature of ministerial accountability that there is an element of subjectivity when the Secretary of State is obliged to make a judgment. I appreciate the point, which I echoed in my remarks, on the need to turn these arrangements off or transition out of them as swiftly as possible, but we can see this pandemic declining and coming back at various times—that is the nature of the lifecycle of a pandemic; there are ups and downs before it finally burns itself out—and therefore the Secretary of State will ultimately need a degree of discretion and subjectivity in their judgment about the right moment, although obviously they will take advice.

On the House’s ability to challenge that, as the shadow Minister will possibly expect me to say, he and his colleagues and other Members will have ample opportunity, not only at Question Time but also, as I have discovered, through urgent questions, which I have answered on behalf of colleagues in the Government on occasion. There are plenty of opportunities for Members to summon Ministers to the Dispatch Box, or through written questions, to challenge and to probe and hold Ministers to account. I hope that hon. Members feel that this is a pragmatic and proportionate measure to address something we have identified in the course of the pandemic as needing resolution, and in so doing to put it on a surer and clearer statutory footing.

Question put and agreed to.

New clause 62 accordingly read a Second time, and added to the Bill.

New Clause 1

Prohibition of virginity testing

“(1) A person is guilty of an offence if they attempt to establish that another person is a virgin by making physical contact with their genitalia.

(2) A person is guilty of an offence if they provide another person with a product intended for the purpose, or purported purpose, of establishing whether another person is a virgin.

(3) A person is guilty of an offence if they aid, abet, counsel or procure a person to establish that another person is a virgin by making physical contact with their genitalia.

(4) No offence is committed by an approved person who performs—

(a) a surgical operation on a person which is necessary for their physical or mental health; or

(b) a surgical operation on a female who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth.

(5) The following are approved persons—

(a) in relation to an operation falling within subsection (4)(a), a registered medical practitioner; and

(b) in relation to an operation falling within subsection (5)(b), a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife.

(6) There is also no offence committed by a person who—

(a) performs a surgical operation falling within subsection (4)(a) or (b) outside the United Kingdom; and

(b) in relation to such an operation exercises functions corresponding to those of an approved person.

(7) For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual.

(8) This section applies to any act done outside the United Kingdom by a United Kingdom national or resident.

(9) A person who is guilty of an offence under this section is liable, on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine, or to both.

(10) The court must refer the case of any person guilty of an offence under this section who is subject to statutory professional regulation for investigation by the relevant regulator.”.—(Alex Norris.)

Brought up, and read the First time.

[Alex Norris]

I beg to move, That the clause be read a Second time.

--- Later in debate ---

[Dr Whitford]

I rise to support new clauses 1 and 2. Although this issue would be within the devolved space, as a doctor, I think that any practice that is in essence being called a medical practice but is not for the benefit of the patient is unjustifiable. I have to say, I think that extends to X-raying child refugees’ teeth or exposing their limbs to radiation for no clinical reason; I find that unjustifiable. The difference with what these two new clauses deal with is that both involve absolute violation of women and girls, and therefore they are way beyond what we would discuss in other spheres. Although these measures would not apply in Scotland, they are about things that are indefensible, as are other practices that we have heard about, such as female genital mutilation, and so on, which some have tried to disguise as cultural, religious or other practices. Therefore, I totally support the principle and the idea behind these new clauses.

[Edward Argar]

While, on occasion, there has not been unanimity in this House, I share the sentiments expressed by the hon. Lady and the shadow Minister, the hon. Member for Nottingham North.

I am grateful, first to my hon. Friend the Member for North West Durham (Mr Holden) for his private Member’s Bill on this issue, which originally raised it, and I am also grateful to the shadow Minister. I do not always say that about some of his amendments, but I am grateful to him and his colleagues for tabling this new clause, which gives us the opportunity to debate this issue in Committee. I am aware of the work that my hon. Friend has done to raise the issue and I know how strongly the shadow Minister feels about it as well.

First, I want to reassure the Committee that safeguarding vulnerable women and girls is a key priority for the Government, which is why on 21 July we announced our commitment to ban virginity testing in the Home Office-led tackling violence against women and girls strategy, so I think we are of one mind on the principle. I will talk a little bit about the mechanism, the drafting and similar, but it is fair to say that we are of one mind on the principle here. Such tests are, as the shadow Minister said, a violation of human rights and are clearly known to have an adverse and long-term impact on women and girls’ physical, psychological and social wellbeing.

New clause 1, which the shadow Minister tabled and spoke to, gets to the very heart of what we intend to do with regard to virginity testing: ban it. I wholly agree with the spirit of new clause 1; however, I fear that we cannot accept it as drafted. There are several reasons for that, which I will outline. Nevertheless, I hope that in my opening remarks I have reassured him that we are of one mind on this issue, and I will set out the next steps.

By way of further reassurance, may I also say to the Committee that the Government have clear plans to introduce our own legislation, at the appropriate moment and at the nearest opportunity, to criminalise virginity testing? There is work to be done on the drafting and, as the shadow Minister would expect, through discussions within Government. However, I can put on the record in this Committee that it is absolutely our intention to legislate in this space.

While the wording of that legislation will differ slightly from the wording of the new clause, I want to reassure the shadow Minister and other Members that the policy intent and policy outcome will be exactly aligned. Parliamentary drafting is not only an art but a significant skill, and a very technical one. Therefore, we are utilising the best drafting we have available to see how we might achieve the outcome in the appropriate way, subject to cross-Government approvals.

I will also say that the Government absolutely share the shadow Minister’s concerns about how virginity testing is essentially driven by a repressive approach to female sexuality and is a form of violence against women and girls that must be eradicated.

Our concerns about the drafting of the new clause include that it does not specify where in the United Kingdom the offence would apply. It is unclear whether the offence would apply in each of the four nations of the United Kingdom or in England only. That is a drafting technicality, but we think that clarity is important. We are in the process of seeking four-nation-wide agreement on virginity testing in each of the nations, and we are working through options on what that might look like, reflecting our shared view that virginity testing has no place in any part of our United Kingdom, and that the safety of women and girls is paramount wherever they are in the four nations.

Another concern about the drafting is the inclusion of defences. The new clause would provide that in certain circumstances, such as in the course of a surgical procedure undertaken by an appropriate medical professional, an offence would not be committed. The Department’s internal review of virginity testing and hymenoplasty found that virginity tests have no clinical or scientific merit, as the hon. Member for Nottingham North said. There is no reliable way to establish virginity, nor is there any clinical reason to know if a woman or girl is a virgin. As such, we are clear that there is no clinical reason for such an examination or operation to be carried out, and we therefore question the legitimacy of including such a defence in the new clause.

I have set out some of the key drafting challenges in the new clauses and I hope that I have given a flavour of the Government’s thinking. The drafting detail of our policy approach is being carefully considered, with the safety of vulnerable women and girls as our guiding principle. The hon. Gentleman may be reassured that the spirit and policy intention of the new clause will be reflected in future legislation as swiftly as we can draft it and secure agreement to bring it forward.

New clause 2, which was tabled by my hon. Friend the Member for North West Durham and supported by the hon. Member for Nottingham North, seeks to ban hymenoplasty in the United Kingdom. While the Government share the concerns underpinning the new clause—that hymenoplasty is driven by a repressive approach to female sexuality and closely associated with virginity testing, so it is right that we debate the new clauses together—we also have concerns about timing and process.

After the Department of Health and Social Care conducted an internal review of virginity testing and hymenoplasty, the Government announced in the tackling violence against women and girls strategy that they would convene an expert panel to explore the clinical and ethical aspects of the procedure in more detail. The Government’s primary concern after the initial review was that there was no clearly defined consensus on whether hymenoplasty should be banned. As a Minister, I will not go as far as the hon. Member for Nottingham North while a review has been commissioned, or comment on what that review might say in detail. Arguments have been made on both sides. The hon. Gentleman has a clear view, and he may suspect he knows what my view is, but it is right to allow the expert panel to do its work swiftly and clearly and to use it as our evidence base.

It is fair to say that the overwhelming majority of stakeholders are clear that hymenoplasty perpetuates harmful myths about virginity and could constitute a form of violence against women and girls. Concerns have been expressed about whether banning the procedure could push the practice underground. It is important that the expert panel bottoms out those arguments and gives us a clear basis for proceeding. My challenge with the new clause is simply a matter of timing: it is important that we have the report from the expert panel.

To ensure balance and impartiality, the expert panel is co-chaired by Professor Sir Jonathan Montgomery and Dr Pallavi Latthe, both of whom are well respected in their areas of expertise. Both have extensive experience in this area of health ethics, and it is important that we let them do their work and then consider what they say. We will consider their recommendations as soon as they are brought forward, and I hope that will happen swiftly.

The recommendations will need to be fair, objective and based on evidence, so I hesitate to go beyond that in expressing a view on the substance of the new clause until I have that expert panel report before me. It will be presented for Ministers’ consideration, and I assure the hon. Gentleman—I can see where he might go with this—that the intention is to publish it before the Christmas recess. It is a swift piece of work. We will consider the report and, depending on its contents, bring forward legislation if or as appropriate, considering everything it contains in the context of vulnerable women and girls’ safety.

--- Later in debate ---

[Justin Madders]

I am grateful for the intervention—that is a very fair point. I recently spoke to a CAMHS worker who made that very point. One of their frustrations was that problems were not being addressed by early interventions, which only stores up more difficulties for later. Again, that is a symptom of the fact that we do not have parity of esteem, because early interventions can ultimately make a huge difference. We would like to see better access to services and appropriate waiting times being established for a wider range of mental health services, so that people with mental health problems know the maximum time for treatment, as is the case for people with physical health problems. I know the Department has been consulting on that fairly recently, and we think it would be a step change in how we assess and prioritise mental wellbeing.

Parity of treatments is required. Psychological therapies that are approved and recommended by the National Institute for Health and Care Excellence should be delivered as per the NHS constitution, and they should be put on a par with NICE-approved drugs. People need 24/7 access to mental health teams. The A&E presentations that we hear so much about have to be considered—that is probably not the optimum way to deal with such issues. There is a whole range of matters that really could make a practical difference in delivering parity of esteem, and we think that the report proposed in the new clause would be a way to drive through some of those changes.

I will not push for a vote on new clause 3, but we wanted to highlight the urgent need for more support for mental health services throughout the UK. Hopefully, the Minister will at least acknowledge that more needs to be done in this area.

[Edward Argar]

I welcome the spirit in which the shadow Minister brings this issue to the Committee. He is right to highlight not only the words “parity of esteem” but what they mean in practice, the importance of mental health services—particularly after the past year and a half with the rise in people suffering from mental health problems—and the challenges posed every day to our mental health services, irrespective of the pandemic. I suspect that throughout their time in this place, all Members present will have had multiple pieces of constituency casework relating to this issue, and particularly to CAMHS.

It is absolutely right that the shadow Minister has focused our debate on ensuring that mental health services are sufficiently funded to improve access, care and outcomes for patients. We know that, historically, mental health services under successive Governments have not received the same level of funding as NHS-funded services for physical health. By virtue of section 1(1) of the National Health Act 2006, which was inserted by the Health and Social Care Act 2012, the Secretary of State has a “duty to promote comprehensive health service” in England

“designed to secure improvement—

(a) in the physical and mental health of the people of England, and

(b) in the prevention, diagnosis and treatment of physical and mental illness.”

Although there may be many things in the 2012 Act that I suspect Opposition Members do not agree with, I suspect they will agree with that clear objective. Given what the shadow Minister said, I am sure they do.

In line with that duty the Secretary of State, through the NHS mandate, ensures that NHS England must seek to treat mental health with the same urgency as physical health. That is monitored through three metrics: mental health services’ real-term expenditure growth, the number of people accessing Improving Access to Psychological Therapies services, and the number of children and young people accessing NHS-funded mental health services. The Secretary of State has a legal duty to keep under review the progress in meeting mandate objectives. NHS England and NHS Improvement provide reports on the above metrics for the Government’s review on a regular basis, and they have governance mechanisms in place to monitor both mental health spend and service delivery.

--- Later in debate ---

[Edward Argar]

I put on record my gratitude to my hon. Friend the Member for Newton Abbot and to the hon. Member for Nottingham North for enabling this discussion to take place in Committee today. I find myself in deep agreement with the idea that the NHS can play a vital role in protecting vulnerable people and, as part of that, it must have strategies and processes in place for supporting victims of domestic abuse, sexual violence and other forms of harm.

The hon. Gentleman was kind to refer to my stint at the Ministry of Justice, when as Victims Minister I took a close interest in this issue with Dame Vera Baird, the former Member for Redcar, in her role as Victims’ Commissioner—I pay tribute to her—and with the Minister of State, Ministry of Justice, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins). My hon. Friend and I worked on the early stages of the Domestic Abuse Act 2021, and she saw that work through—I had moved to this role by then—before receiving a well-deserved promotion. I took a close interest in this issue when I was in the MOJ, and hon. Members from across the House will have found that it is not forgotten or left behind; we always reflect on it and see how we can continue to play a part when in other roles.

The hon. Member for Central Ayrshire was right to highlight the challenges that many people feel. The stigmas are completely unjustified, but people feel them because of the nature of the abuse and the controlling and coercive behaviour to which they have been subjected. When I was at the MOJ, I discovered the limitations of legislation in this space. We can and should legislate in certain areas, but a lot of this is about how services work on the ground, how we talk about this as a society, and how we break down the stigmas. One of the key things that I took away from my time at the MOJ was that tackling domestic violence and abuse is not just the responsibility of the justice system or the NHS; it is our responsibility as a society. I hope I can reassure the shadow Minister. On some areas, we tend to find ourselves in agreement rather more than is perhaps good for either of our political careers, but on this I entirely share his sentiments.

Turning to new clause 5, I hope to reassure the Committee that placing in the Bill a formal duty on ICBs to develop a separate strategy is unnecessary and not the best approach, but I hope the Committee will allow me to expand on my reasoning. There are already several duties on CCGs to consider the needs of victims of violence, including victims of domestic abuse, through the joint strategic needs assessment process. CCGs must respond to identified needs through health and wellbeing strategies. The duties will be transferred to and continue to apply to ICBs once CCGs are abolished, and will be further strengthened by the requirement on ICBs to develop system level commissioning plans. Through the Government’s landmark new Domestic Abuse Act 2021—it would be churlish of me not to recognise the Opposition’s work on it—local healthcare systems will be required to contribute to domestic abuse local partnership boards.

I slightly caution against requiring ICBs to create further additional strategies and plans, separate from those already in the Bill. I recognise the impulse to require NHS bodies to do this, because the theory is that a separate strategy will attract particular attention. My note of caution is because in doing so, we are saying, “We will put that over there, in that strategy” rather than having it as a thread that runs through all the strategies, underpinning strategic documents and plans of the local NHS and the ICB. We risk separating it and putting it in a different compartment from the wider span of integrated responsibilities, which is where it should sit.

The new clause also places a requirement on ICBs to have a domestic abuse and sexual violence lead. We agree with the principle, but we believe we can do that effectively through existing legislation and guidance. As set out in the Government’s recent violence against women and girls strategy, the Department of Health and Social Care will be engaging with integrated care systems and providing guidance to promote best practice in addressing violence against women and girls, domestic abuse and sexual violence. That could well include advice on designated leads and those internal structures and processes.

Beyond ICBs, I see a huge opportunity for integrated care partnerships to support improved services for victims of domestic abuse, sexual violence and other forms of harm through better partnership working. I am sure we have all undertaken visits to women’s refuges or to other charities that support women who are victims of domestic abuse. I should just say that it is, of course, true that men and women can be victims of domestic abuse. I refer to women in this context because an overwhelming number of victims are women, but it can happen to anyone, irrespective of gender.

In my previous role, I had the privilege of meeting survivors of domestic abuse, who were willing to talk to me about what had happened and their recovery from and survival of domestic abuse. In those conversations, people would often say, “I dealt with one agency, but it did not talk to this agency and this bit did not join up.” There is a real opportunity for the ICPs to work with housing providers, local authorities, the NHS and other voluntary and third sector organisations to help to bring together a more coherent and joined-up approach.

More broadly, I assure the Committee that the NHS will be at the forefront of stepping up to its responsibility to play its part in tackling domestic abuse, sexual violence and violence against women and girls. NHS England is developing enhanced trauma-informed mental health support for victims with the most complex needs within the sexual assault and abuse pathway. The DHSC’s new office for health promotion will work with the newly merged NHS England to review and build on workforce policies to ensure safe, effective processes are in place to support staff affected by domestic violence and sexual violence.

I hope I have reassured the Committee that we take this issue extremely seriously. Although we do not think that the approach proposed in the new clause is the right one, I am open-minded and happy to work across the aisle to see if there is more we can do in this space, in keeping with the strategy set out by my hon. Friend the Member for Louth and Horncastle when she was at the Home Office, and to see if there are other ways to achieve essentially the same objective.

[Alex Norris]

I have listened carefully to what the Minister has said, and I agree with significant elements of it. I take the point about existing duties on CCGs, and I am very mindful of those. The reality is that they do not work, or they certainly have not worked to date. I have no confidence that anything will change if current arrangements are just ported over to integrated care boards, which is what will happen. I do not think anything will change. I cannot imagine what will have changed in that moment to make it different, and I cannot therefore agree with the characterisation that the new clause is unnecessary.

I accept that we would not want to see a proliferation of further strategies. By making it a requirement, the new clause seeks to put the treatment, assessment and care of domestic abuse on the same footing in integrated care as elective care or major diseases. It should have that status, and at the moment it does not. It needs to be elevated to that level. I do not disagree at all with the Minister’s point about domestic abuse being a thread that runs through all policies. The reality is that we have been saying that for a really long time. What actually happens is that it is in everything and, as a result, it is in nothing, and things do not change. Certainly, they are not changing quickly enough in the health space.

Finally, on the point about integrated care partnerships, I hoped that the Minister would not say what he did, because that is the problem. The fundamental issue is that those who are making the direct daily decisions about health and care in our communities are downgrading the issue by considering what they do not as operational, daily, immediate, crucial decisions—in the way they would with elective care or cancer care—but instead as partnership work.

I would never talk down the pledges that we sign or the awareness days we do. I have signed all the pledges and gone to all the awareness days, and I will keep doing that because it is an important way of keeping the pot boiling. However, I am not convinced that they have done enough to make my constituents safer or give them a better health service. I have seen no evidence of that yet. This is not partnership work, but daily, crucial work that ought to be done by system decision makers, who ought to be prioritising it every day, but I do not think that is the case.

[Edward Argar]

If I was unclear, I apologise; that was not the intention of what I was saying. I sought to say that that partnership work brings together organisations that, I believe, do focus on the issue day to day and have it as an operational priority, but often still operate in silos. In some of the best partnerships in the best local authority areas, those silos are much less evident. My point about the ICP was not as an alternative to making this front and centre, and asking “What are you doing in your operational decision making?”—be it about elective care, cancer or domestic abuse, and treating them the same—but that often it operates in a way that is internal to those organisations, rather than across them.

That was the point I was trying to make about partnership: not only do we need that internal process and urgency—I totally share the hon. Gentleman’s view on that—but we need the ICPs to offer an opportunity to do that by bridging organisations. I hope that adds a little clarity, if I was unclear.

[Alex Norris]

It does, and of course I would not want to misrepresent what the Minister said. My point is that, while of course we should seek to work across the partnership and have a cross-partnership approach to tackling this issue in our communities—that is a very good thing to do—the problem currently is that that means we are not doing enough in the health and care space. There has to be something that says to health leaders, “Yes, work in partnership, but there are bits that you have to do yourselves that at the moment you are not doing well enough, so please do them.” This is my “something”. That was my logic in tabling this new clause, and it is why I intend to push it to a Division.

Question put, That the clause be read a Second time.

--- Later in debate ---

We have a problem with the accountability of ICBs, as we have discussed. We will not be able to change all of that in this Bill, but the new clause will be a good start.

[Edward Argar]

I am grateful to the hon. Member for Bristol South for tabling this new clause. Much of what we discussed in relation to amendment 34 is relevant here as well. She says she seeks to be helpful by tabling the new clause. I take it in that spirit and will seek to respond in that spirit, although we may not agree on our conclusions.

As I said when we debated amendment 34, we agree with the shadow Minister, the hon. Member for Ellesmere Port and Neston, and the hon. Lady that it is right that ICBs involve the public in their decisions in a transparent way. That also holds true for NHS England, NHS provider organisations and special health authorities. The new clause would require NHS trusts, foundations trusts, proposed ICBs, NHS England and special health authorities to hold their meetings in public except if it would be prejudicial to the public interest to do so. It would also require those bodies, when making major decisions—defined by thresholds of cost or impact on patients or staff—to do so having produced a business case, undertaken a stage gate review or similar external assessment, and considered comments from the public, patients or staff representatives. The comments, business case and review could not be considered commercially confidential under the FOI Act.

As I mentioned when discussing amendment 34, much of that is already the case. First, the Public Bodies (Admission to Meetings) Act 1960 places a similar and analogous set of requirements to involve the public in meetings as the new clause. NHS England and NHS trusts are already included in the schedule to the 1960 Act, so are subject to the requirements of that Act. Schedule 4 to the Bill provides for integrated care boards to be added to the schedule to the 1960 Act as well, thereby bringing their activities within its competence.

The position of special health authorities is that where the regulations establishing them provide as such, they are to be subject to the requirements of the 1960 Act. That gives the flexibility to include them as appropriate. For example, NHS Blood and Transplant and the NHS Trust Development Authority—which the Bill proposes merging with NHS England—are included at present.

By having the requirements for public notice of, and attendance at, meetings of those bodies set out in the 1960 Act, we keep NHS bodies in line with the requirements placed on other public bodies, meaning that everyone is clear about the legal requirements and what the public can expect from them. Foundation trusts are not formally covered by the 1960 Act, but it is mandatory that they make provision in their constitutions that their board of directors’ meetings and their annual meeting of members be held in public. They are also under the same duty as NHS trusts to involve those who use their services in their decisions regarding service provision, as set out in section 242 of the National Health Service Act 2006. In practice, therefore, foundation trusts are guided by similar principles to other NHS bodies.

Turning to the point about setting in legislation a decision-making process for “major decisions”, we of course agree that it is vital that NHS bodies follow a robust process when making decisions. Integrated care boards, for example, have clear duties to use their resources efficiently and effectively. For practical reasons, however, we would not want to subject every major decision to a single fixed approach, not least because there is no provision in the amendment for responding to emergencies or rapidly emerging situations, including those related to patient safety.

I hope that I can, however, give some degree of reassurance that there are, as set out in the 2006 Act, broad duties on NHS bodies in respect of consultation and public involvement. NHS England involves those who are affected by decisions about commissioning in the decision-making process, either by consulting them or by providing them with information in other ways. A similar duty will be imposed on ICBs by clause 19. NHS trusts and foundation trusts have a similar duty in respect of public involvement and consultation when making decisions about the services they provide, again set out in the 2006 Act.

The Committee is also aware that the Treasury is committed to seeing business cases where capital spending, or whole-life cost spending for IT, is more than £50 million, and we expect ICBs to align with that standard. Furthermore, NHS England has a broad range of powers to issue guidance on how ICBs and others make decisions, spend capital and involve patients and the public in those decisions. Placing those processes in guidance, rather than on the face of the Bill, gives not only the flexibility to set different approaches in different circumstances, but the ability to respond to changing best practice.

On procurement and transparency, as we have discussed, the Bill introduces a power to bring forward new procurement regulations, which will set out the new provider selection regime. Regulations and statutory guidance will set out rules to ensure transparency and scrutiny under the new regime, which will be designed to ensure open, transparent and robust decision making, and will require decision-making bodies to demonstrate the rationale for their decisions. The decision-making process will be recorded internally by NHS bodies and audited annually. While decision-making bodies will be required to publish contracts awarded and intentions for the method of procurement, with a rationale for both, the bodies will not be required to publish every detail of their decision-making process.

Regarding FOI requests, I recognise the impulse to be as transparent as possible and agree that, unless exemptions apply, information should be released under the FOI Act. I am advised that confidentiality, which is an absolute exemption, and commercial confidentiality, which is a qualified exemption, are two separate exemptions already in that legislation. Where parts of the decision-making process are exempted on the grounds of commercial interests, those exclusions exist to protect the release of information that could prejudice a commercial decision. That could put NHS bodies at a disadvantage in ongoing negotiations and would be detrimental to the public purse.

I am advised that this is a qualified exemption and therefore disclosure would still be required unless the public interest in withholding disclosure outweighs the public interest in disclosure being made. I recognise that that is a tricky balance to strike, but I do not think it is to the benefit of the NHS that information held by NHS bodies that could be commercially damaging and does not meet a public interest test should be released.

I hope that that offers some reassurance to the Committee. I encourage the hon. Lady not to press her new clause to a Division.

[Karin Smyth]

I am grateful to the Minister. I was going to—

Health and Care Bill (Nineteeth sitting)

Edward Argar Excerpts

Committee stage
Wednesday 27th October 2021 Public Bill Committees

[Justin Madders]

It is a pleasure to follow my hon. Friend the Member for Bristol South, who gave a superb analysis of why the new clause is important and she picked up on many of the themes that we have already debated. The topicality of NHS senior management is there for all to see, with some of the recent headlines being orchestrated to divert from the growing waiting list crisis in the NHS.

Our view is that NHS senior management cannot be all that bad because they have seriously outperformed the private sector on efficiency for nearly a decade. If the NHS is one of the most efficient services in the world as many international studies have demonstrated, that is a credit to the managers who form a relatively small proportion of the overall workforce. I hope the Minister will join us in congratulating NHS managers, along with all the other brilliant staff, who have got us through the pandemic over the last 18 months—although, as we know, we are not through it yet. The contrast with some of the political decisions made has been exposed recently by the joint report by the Health and Social Care Committee and the Science and Technology Committee.

As we have discussed on a number of occasions, the Bill seems to specialise in the centralisation of power, with more and more being explicitly given to the Secretary of State. Do we want the Secretary of State appointing every chair, non-executive and chief executive, even in bodies that are meant to be independent from the Department? Amendment 18, which we debated earlier, would have gone some way to addressing that: alas, it was not to be. This is a serious issue that needs tackling. My hon. Friend is an expert on these matters through her own knowledge and experience, and I absolutely support what she has said.

While good governance might sound a little cheesy, I am sure that we could spend a lot of time discussing what exactly this new clause should be called.

I think we can all understand what good governance means and what it should look like, because we have certainly seen what it does not look like in how the Department operates at the moment. As my hon. Friend said, there was something similar in place previously, before it was burned in the bonfire of quangos under the coalition Government. Something should be in place, be it a revitalised appointments commission or even some independent standing committee or panel—something that has independent oversight of these very senior positions.

As we have said before, we would like more direct democracy in our integrated care boards. We are not going to get that, by the looks of it, but we would at least like some independence in appointments. When my ICB chair is finally appointed, I want him or her—it is a “him” at the moment, and it is an interim position—to be looking outwards, not upwards to NHS England all the time. That is something that a good governance panel would help facilitate.

A fit and proper person test should be applied independently, even to get on a shortlist, and there should be some process for removing those who should not be on there. This needs to be applied by people who are independent and competent, and not people who are already on the lists or making the appointment decisions. Perhaps we should even have some people who have oversight of how people in senior positions are appraised, trained and supported. There is a lot of experience and expertise out there that we could harness. I hope that, whatever this body ends up looking like, it can assist the NHS in dealing better with issues such as diversity, succession planning and leadership—all areas on which we can always strive to do better.

I hope that nobody mentions bureaucracy or cost as an excuse to leave things as they are. We know from published NHS experience that having an appointments commission was not really an overhead; in fact, it was a valuable resource that, in the end, saved money. We know how much it costs to replace someone who has proved unsuitable, and to undo the mistakes that they made. Appointing the right people in the first place is the best solution. The Minister will, of course, be aware of the importance of recruitment and retention across the whole NHS. I think that we can do more in respect of senior leadership roles.

As my hon. Friend the Member for Bristol South said, transparency is key throughout the systems. Where the funding goes is a key question that will become even more key as we move into the ICBs, with larger areas and different funding streams merging into one. Transparency will be important there. Of course, there will be local differences, as she said, but there should still be accountability to someone for where that money goes and who is taking those decisions. We have what we have described as a permissive approach to running ICBs at the moment, but that does not mean that we cannot have transparency and accountability. That is why we support the new clause.

[The Minister for Health (Edward Argar)]

It is nice to see you back in the Chair, Mr McCabe. I am grateful to the hon. Member for Bristol South. Although we may not fully agree, again I take the new clause in the spirit in which she tabled it. I will reflect on what she said, but I will also set out why I cannot accept what she is proposing. I will always reflect on what she says and proposes; when she proposes things, they are well thought out. We may come to different conclusions, but the points she made are certainly deserving of reflection. I can give her that assurance up front.

As in our oral evidence sessions, I join the hon. Lady and the shadow Minister in paying tribute to those in our amazing NHS and care workforce. It is also important that we recognise, as I think she said during questioning of witnesses, that the complexity of the organisations we are talking about—the complexity of an acute trust, for example—means that strong and effective leadership, both financial and administrative, are hugely important to the overall success of the enterprise of our NHS. I therefore join her in paying tribute to those staff who often find themselves, particularly in media commentary and similar shorthand critiques, on the receiving end of criticism. People may ask, “What are they there for?”. They are hugely valuable—just as much as frontline clinicians, nursing staff and those who work in the canteens or clean the wards. It is a team.

[Dr Whitford]

rose—

[Edward Argar]

I will give way to the hon. Lady, as I am sure she will amplify this point. She has worked in clinical settings and will know that a whole team is needed to make things work.

[Dr Whitford]

I cannot resist the opportunity to amplify that point. Having spent over three decades working in hospitals as a surgeon, I know that it is a team sport that depends on everyone. Sometimes when cuts are made we hear the definition of “frontline” or “back-room” services. If I am in a clinic on my own without the patient records, the patient or the laboratory results, I am a complete waste of space. It is critical to recognise that. To get all the moving parts working well, really good managers are worth their weight in gold. They are part of the team and should be valued as such.

We heard with reference to fit and proper persons that the Kark review did not go far enough and should have suggested suggest registration or licensing of senior managers. Sometimes when the system does not work, we see the same people move out of one place and into another in this kind of revolving door manner.

[Edward Argar]

Although I do not always agree with the hon. Lady, I find myself in complete agreement with her. She made a couple of points that referred back to those made by the hon. Member for Bristol South. The hon. Lady is absolutely right that the system needs high-calibre, high-quality people with the right skills, particularly given what we are seeking to do with integrated care systems. We must foster an environment in which those high skills are valued, continually reinforced and refreshed.

On the point about the Kark review, the hon. Member for Central Ayrshire is right. How should I phrase this delicately? People may move on, or be moved on, from posts because it was not a success for whatever reason; I will phrase it like that. We need to look at the challenge posed by those people suddenly reappearing in another equivalent senior post in a different part of the country. There may be a reason why someone has not been a success that is not due to particular circumstances or something beyond their control, and we need to look at the recycling of those people who have not been found to have hit the mark. We need to look at that carefully.

[Justin Madders]

Will the Minister give way?

[Edward Argar]

I see the look on the shadow Minister’s face, which makes me wonder what is coming.

[Justin Madders]

I am not trying to catch the Minister out. I can think of a specific example where what he mentioned has happened. I am, frankly, angry that this individual has been able to do that. What does the Minister think can be done to ensure that the revolving door is shut on those whom it deserves to be shut on?

[Edward Argar]

The shadow Minister is right. It is a challenge, and it is something I continually reflect on, because it intersects with legal employment rights, the nature of the terms on which someone leaves, how these matters work and the fact that NHS trusts around the country are individual. It is not a simple issue. It is one that I continue to reflect on. I hasten to add that it is not just the shadow Minister but Members from both sides of the House who have, on occasion, raised the issue. It requires further thought and reflection.

New clause 8 would involve creating a new special health authority, effectively, to provide independent oversight of NHS appointments. I recognise the importance of such appointments, and everyone would agree that good governance arrangements should and must be in place for managing them. Appointments to NHS trusts, NHS England and special health authorities are public appointments; they are managed in line with the principles of the governance code for public appointments and are regulated by the Commissioner for Public Appointments. The chair of an ICB would be appointed by NHS England, with the approval of the Secretary of State. That reflects a point that has been considered on a number of occasions during the passage of the Bill, namely that the ICB is accountable to NHS England and, through it, to the Secretary of State and, ultimately, Parliament, as part of a national health service.

I acknowledge what the hon. Member for Bristol South said about the need for people to be answerable and responsive to their local community. The counter-challenge is avoiding the fragmentation of the national health service and the vertical arrangement. She mentioned police and crime commissioners, and although our police forces operate in a similar way, the difference is that we have never had a national police force. Each force is based on a county—or a city, in the case of the Metropolitan Police Service—and works on a locality basis, as local authorities do.

--- Later in debate ---

[Edward Argar]

In respect of Ministers or senior civil servants? When it comes to Ministers, though I suspect that is not the point he wishes to push—

[Justin Madders]

I think we can see who the Ministers are, at least this week. I was referring more to the senior civil servants.

[Edward Argar]

I like to think that I am a constant in the Department, this week and in previous weeks. It is piece of work that we have done. If one looks at the very senior civil servants—the directors general and permanent secretaries—there is a good gender balance. He is absolutely right, however; having assumed responsibility for workforce more broadly a few weeks ago, it is a piece of work that I want to do. I was responsible for the implementation of the Lammy review and race disparity audit when I was at the Ministry of Justice, and it is an interest that I have taken with me to my new Department. The last year has been a little bit busy, but it is something of which I have not lost sight.

I do not believe that it is necessary to create a new body to oversee appointments, given that good governance arrangements are already in place. I therefore remain unconvinced by the argument. As ever, and as behoves me when the hon. Lady proposes something, I will continue to reflect on it carefully.

[Karin Smyth]

I am grateful for the Minister’s comments. I will not press the new clause to a Division, but I hope to see this matter further debated during the passage of the Bill. I say gently to the Minister that the gender split for CEOs and managing directors in the health service may be 50:50, but the workforce, and certainly managerial post holders, are overwhelmingly women; however, that is not reflected further up.

[Edward Argar]

The hon. Lady makes a point that I should have made earlier. When I was looking at this matter in the Ministry of Justice, I was not just looking at prison governors. We need to look at the layers below, the succession plan, and the mix coming up through the system—the next generation of leaders. She is right to highlight that; forgive me for not having mentioned it.

[Karin Smyth]

I am afraid that these bodies have not proven themselves good at doing that, and it is not good to have them police themselves, so we need to progress the debate. On the national/local question, I am generally more Morrison than Bevan, so I will continue to plough that furrow, but this is also about being seen to do things properly for local people. My fundamental point remains that as we ask people to spend more money—we are talking about a huge proportion of our GDP, and it will be increasingly so under any Government—we need to be able to demonstrate to them what is done with it, and how and why it is done, and we need to involve the public.

That is my view of the future of the health service, and that is why I will continue to pursue this argument. When it comes to cost, it is a moot point whether this is done quietly in the corridors of NHS England; whether it is done by the Secretary of State; whether names mysteriously appear in the local economy; or whether there is due process. I am not saying that the old system was perfect. It is quite hard to recruit people to these bodies, but they are powerful people, spending billions of pounds of local money in the local economy. They need to be more representative and accountable, and we need to know who they are. As I said, I will not pursue the matter now, but I would like to see it debated further over the passage of the Bill, and we will come back to it another time. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 9

Duty to promote research

“For Section 1E of the National Health Service Act 2006 substitute—

‘Duty to promote research

The Secretary of State must—

(a) support the conduct of research on matters relevant to the health and care system,

(b) provide funding for research on matters relevant to the health and care system, via ring-fenced funding for the National Institute for Health Research, and

(c) promote the use in the health and care system of evidence obtained from research.’”—(Chris Skidmore.)

This new clause would require the Secretary of State for Health and Social Care to have a duty to support, fund and promote the use of research in the health and care system in England, via ring-fenced funding for the National Institute for Health Research.

Brought up, and read the First time.

--- Later in debate ---

[Dr Whitford]

I was going to guess some other city and get it wrong, but it is somewhere north. The hon. Member said that having access to research time as a clinician, which the right hon. Member for Kingswood mentioned is a way of retaining staff, is quite important. My local health board now employs younger, as opposed to older, doctors as clinical fellows, and they have a day a week as part of their contract. It is not just one or two doctors; the board are doing it as a standard approach. It has become really popular and has certainly helped with our workforce issues in Ayrshire and on Arran. It is important to see laboratory and trials research and frontline outcome audit and clinical ideas research from all young clinicians, and we should encourage that. The money is great, but we then have to work out how the money feeds into the health service to generate the biggest impact.

[Edward Argar]

I am grateful to my right hon. Friend the Member for Kingswood for bringing this discussion before the Committee today. It behoves me to pay tribute to his work as Science Minister in the past. He is correct to have mentioned that he is the only person to have held that post and my current role one after the other. In fact, I think he sandwiched my current post between two stints as Science Minister, so he knows a lot about the subject and has done a lot of work on it. I pay tribute to him for that.

The amendment seeks to legislate for an additional duty for the Secretary of State with respect to research and to ringfence funding for the National Institute for Health Research—the NIHR. The NIHR is the delivery mechanism through which the Department of Health and Social Care funds high-quality, timely research that benefits the NHS, public health, and social care. I understand and appreciate the intention behind new clause 9. When discussing previous amendments, I alluded to the fact that I can recognise what my right hon. Friend is seeking to achieve. The benefits of research funded through the NIHR have proved invaluable to us during the pandemic, and the great work of the NIHR is addressing much-needed research into better ways to tackle a host of other health and care challenges that we face.

However, referring to the NIHR in primary legislation and proposing ringfencing of the research budget would not be appropriate, as the NIHR is not a legal entity separate from the Department and funding for the NIHR needs to be considered in the round alongside other elements of the Department’s funding—of which it is a component part—all of which are aimed, ultimately, at improving health and wellbeing.

New clause 9 seeks to broaden the wording of the Secretary of State’s duty to promote research, so that it includes the care system in addition to the health service. I recognise that the intention of my right hon. Friend is to ensure that social care is considered a priority area and does not get neglected in the face of demands from health. However, the NIHR already funds both health and social care research. Adult social care is a strategic priority for the NIHR and its research for patient benefit programme has an annual competition specifically for social care proposals.

The amendment seeks to modify the existing duty of the Secretary of State to “promote research”, and to become a duty to

“support the conduct of research”.

It imposes a requirement for the Secretary of State to

“promote the use in the health and care systems of evidence obtained from research”.

We consider that the existing statutory duty has ensured that research has been championed, and that evidence obtained from research has been well and correctly used. The Secretary of State already supports health and care research through funding to the NIHR, and NIHR research evidence is widely used to underpin improvements across the health and care system. Many examples of NIHR impact have been documented in published NIHR annual reports.

For those reasons, I gently encourage my right hon. Friend not to press the new clause to a Division, but I am happy to reflect on the matter further and I suspect that their lordships may well return to this theme in the other place as well.

--- Later in debate ---

[Justin Madders]

I beg to move, That the clause be read a Second time.

We have wandered down the avenue of reconfiguration before in this Committee, and I am sure that we will do so again. The Opposition have been far from reassured about the Secretary of State’s ability to intervene at any moment when there is the slightest hint of movement in a podiatry clinic or a change of hours at a walk-in centre, but that is where we are.

We all know that in a few more White Papers’ time, there will be more changes in the NHS and in social care, and possibly more integration—who knows what is in store for us? There will be changes in the way that services are delivered, with, we hope, the aim of making them better. For more than three decades, there has been an acceptance that changes to services can be of vital interest to the patients who receive them and the staff who deliver them.

The Committee has already discussed several times the importance of involving people in those debates, and there is an acceptance that there must be a process that engages with patients and all service users. That is what we are trying to achieve through new clause 11. I hope we all agree that any proposals to change the way that services are delivered have to be subject to consultation with patients and, as we have seen in other parts of the Bill, with carers. I hope that we start from that uncontentious common ground. The big issue is just how well that consultation is delivered in practice.

At this point, I take the Committee to the Cabinet Office guidelines of 2018 and the consultation principles, particularly paragraph D, which states:

“Consultations are only part of a process of engagement. Consider whether informal iterative consultation is appropriate, using new digital tools and open, collaborative approaches. Consultation is not just about formal documents and responses. It is an on-going process.”

The NHS does not always understand that they should consult before making a decision, and not on a decision that has already been made, using consultation as a tick-box or rubber-stamp exercise. Genuine consultation, with open dialogue on both sides, before decisions are made almost always results in a better decision in the end.

Of course, the Minister will tell us that the NHS constitution talks about those things and pledges,

“to engage staff in decisions that affect them and the services they provide, individually and through their representative organisations and local partnership working arrangements, and empower all staff to suggest ways to deliver better and safer services for patients and their families.”

That is a pledge, not a requirement, and those fine words are often ignored when it comes to consultations with staff groups.

Even the Health and Social Care Act 2012—the Lansley Act—accepted that there were issues, because it states:

“In exercising functions in relation to the health service, the Secretary of State must have regard to the NHS Constitution.”

Having due regard to the constitution also formed part of the licensing conditions for NHS Providers.

We know what “due regard” means and we have already debated its limits. We know that it means that there must be some sort of formal documentation to demonstrate that consideration has been given to representations. Even that sometimes does not happen, or it happens after a decision has been made. On a number of occasions, no attempt has been made to empower staff and proactively ask for their views on how to deliver the service in a better or safer way for patients. A decision is made and presented as a take it or leave it.

A helpful factsheet that was issued for the 2012 Act states:

“Our reforms will enable change to be driven from the bottom-up, by the clinicians who know the health needs of their patients best, and underpinned by proper local engagement, partnership working and effective local authority scrutiny.”

I draw the Committee’s attention to the words “partnership working”. Again, the NHS can do better in respect of that.

In the new clause, we are trying to codify something that the NHS should be doing anyway when we look at the documents, guidelines, explanatory notes and good intentions, but on a number of occasions fails to do. We therefore move from “due regard” to an actual requirement. That is a beacon of best practice, which we should aim for rather than watering it down. What harm can it do? What is the disbenefit of involving the people who know the service best and deliver it on the ground? That is why there must be consultation with patients, their carers and staff.

The latter part of the new clause provides that there has to be an agreement to provide a business case. Any significant proposal should have a business case attached to it. Paragraph C of the Cabinet Office guidelines states:

“Give enough information to ensure that those consulted understand the issues and can give informed responses. Include validated impact assessments of the costs and benefits of the options being considered when possible; this might be required where proposals have an impact on business or the voluntary sector.”

It stands to reason that giving people the full pictures means that they can give a fuller and more informed response. That is at the heart of the new clause. It will mean delivering better outcomes, better services for patients and better engagement with staff. If we refer back to the evidence sessions––gosh, some six weeks ago; it seems longer but it was only six weeks––this was one of Unison’s highest priorities. Witness Sara Gorton said of principal staff involvement

“I think trade unions and staff would feel as though they had a stake and would be reassured that they had involvement in future decisions with workforce implications made by those new bits of the system if that pledge were placed in the legislation and were the underpinning principle.”––[Official Report, Health and Social Care Public Bill Committee, 9 September 2021; c. 93, Q119.]

That is what we are seeking to do here.

It goes without saying that any significant service change should have the business case disclosed, as we discussed earlier with the new clauses tabled by my hon. Friend the Member for Bristol South. Business cases are where proposals are developed and where challenge, and teasing out of alternatives and improvements, can be found. That is the heart of what good consultation should be. We value our staff and the input they can have. We value the impact that service changes can have on patients and the importance of involving them at an early stage with full information. That will improve decisions in the long run and that is why new clause 11 should be supported.

[Edward Argar]

I am grateful to the shadow Minister for giving us the opportunity to debate this issue further. As he suggested, we have touched on it at various other points in the passage of the legislation, but it is right that we debate it again.

The new clause would require the Secretary of State to consult staff, staff representatives and patient representatives on any reconfiguration of services or any service change impacting more than 20 staff. NHS bodies would be required to publish their response to the results of any such consultation and an NHS body proposing significant changes to services would need to produce a business case in a specific model to be published for consultation.

Health service bodies are already under wide-ranging duties on public involvement and consultation on proposals for changes in commissioning arrangements and the reconfiguration of services set out under the National Health Service Act 2006 and regulations made under the Act. In addition, the current guidance issued by NHS England makes clear the importance of engagement and appropriate consultation. That approach will continue to be reflected under new guidance produced under the reconfiguration provisions in the Bill, set out at paragraph 8 of new schedule 10A inserted into the 2006 Act.

Guidance can provide a level of detail that is not always suited to inclusion in primary legislation and allows for flexibility so that the system can work as efficiently as possible. That approach has worked well under the current reconfiguration system and guidance has played an important part. The Government are unconvinced that there is a need for an additional duty to consult patients’ representatives when NHS commissioners and providers must already involve service users in any proposals to change health services delivered to those users and which service users can access.

Moreover, it would not be appropriate for the Secretary of State to carry out a consultation for each reconfiguration or service change affecting staff. To run national consultation for every local change would be disproportionate. It would not be the best use of resource or lead to the local level of engagement that is so important. It is right that NHS bodies responsible for arranging for or providing health services should lead the consultations on proposed changes. These should be done primarily at local level with local expertise. There is always a challenge between the national and the local. I was not quite sure whether the hon. Member for Bristol South was alluding to that when she said that she was more Morrison than Bevan, and suggested that I was more Bevan than Morrison in my approach. Neither comparison has been made about me in the past, but when I next see her, I will ask. There is a real challenge in the local-national balance that runs through several clauses and in respect of the way the NHS has operated for decades.

The new clause would require consultation not just of patients but of staff and staff representatives. Staff views are of course vital in the design of service changes. That is made absolutely clear in the current guidance issued by NHS England, which repeatedly emphasises the need to involve clinicians whose practices would be affected by proposed changes. This approach will not change in the future, and updated guidance will continue to reflect that position and ensure that affected staff provide meaningful input.

--- Later in debate ---

[Alex Norris]

In speaking to these new clauses, I stand on the shoulders of the inestimable work done in this place by my hon. Friend the Member for St Helens South and Whiston (Ms Rimmer) and in the other place by the noble Lord Hunt of Kings Heath, who is with us for a little while longer before he has an oral question to dispose of in the other place. I note my thanks to them for their leadership. I hope that we can move this important issue on as part of our consideration of the Bill.

In this country, since April, around 2,000 people have received an organ transplant. A person voluntarily deciding to give an organ in life or after their death gives the most precious gift of all. It is an incredibly selfless act that allows another person to live. It is a wonderful thing. We should be very proud of Britain’s record on organ donation over the years, of the research and development in that area and the work that I have no doubt we will yet do.

However, there is a sinister underside to organ donation that I ask the Committee to consider with these two new clauses. In some parts of the world organs are not given freely but are taken by force. Extensive research has shown organ harvesting to be prevalent particularly in China, where the number of organs transplanted swamps the official number of voluntary donations. The organs are generally destined for high-paying customers and come from people such as political dissidents, prisoners of conscience and ethnic minorities.

The Chinese Government say that it does not happen. The World Health Organisation has backed that up, based on a self-assessment made by the Chinese Government, which I did not find very credible. What I do find credible is that, in 2020, the independent China Tribunal found that forced organ harvesting has been committed for years throughout China, on a significant scale. Falun Gong practitioners have been one source—probably the main source—of organ supply. Victims include both the dead and the living. There are whistleblower reports of corneas being harvested.

In January we made progress on the issue through the Medicines and Medical Devices Act 2021—I am sure the hon. Member for Central Ayrshire remembers the exchanges fondly. That opened the door to further regulation of human tissues and I hope that we can move further in this Bill.

Existing legislation does not deal with British citizens who travel abroad. New clause 14 attempts to close that loophole by making it a crime for British citizens, residents and other specified people to be involved in the kill-to-order organ trade. It would end the opportunity for someone to travel to pay for black market organs from a prisoner of conscience and to return to the UK for NHS-funded anti-rejection medication. We must make it clear that involvement in this trade is reprehensible and unacceptable. I think that is a point of consensus across the House, but I am yet to hear what the mechanism is to close the loophole—I think new clause 14 presents a very good one.

New clause 15 deals with the display of human bodies. I used the word “grim” earlier in proceedings, and this is very grim indeed. Regrettably, this is not a theoretical conversation. In 2018 the Real Bodies exhibition took place in Birmingham. Adults and children paid to look at deceased corpses that had been injected with silicon and transformed into real-life mannequins. The bodies were sourced from a lab in Dalian in China. The bodies were able to be displayed without any documents or proven consent, and from a lab that we know receives bodies from the Chinese police.

Whether that sort of exhibition counts as entertainment is a matter for individuals—it is certainly not my sort of entertainment. New clause 15 would ensure that the trade is tightly regulated, so that something like that could not happen again. It would prevent the display of dead bodies of political prisoners and guarantee that proper consent has been received, ensuring dignity and respect for the deceased and their families. I think this is a matter of interest to the Committee, which is why I am seeking to put it in the Bill. It is also of significant interest in the other place. I know there will be conversations on the issue as the Bill progresses.

I am keen to hear from the Minister on these two points. I do not doubt that we are of one mind on the matter. What I would like to know now is what the Government are going to do about it, because these are pressing issues and need action now.

[Edward Argar]

I can certainly tell the hon. Gentleman that I think there is a consensus across the Committee, and indeed across both Houses, condemning the reprehensible behaviours and practices that he has highlighted. As he says, the challenge is the mechanism, particularly given the concept of extraterritoriality that applies here, so I will talk about that a little bit. I fear we may have to return to this; I suspect, given the complexities, that it may well be their lordships’ House that grapples with it a little further. Although it is not normally the done thing to recognise those in the Public Gallery, as they are not in the Chamber, were there to be a distinguished Peer in the Public Gallery, I would also pay tribute to their work on this. I hope that just about keeps me in order, Mr McCabe.

New clause 14 seeks to extend the provisions in section 32 of the Human Tissue Act 2004, which prohibit commercial dealings in human material for transplantation. The amendment would make it an offence for someone to travel outside the UK to receive such material without free, informed, and specific consent or in exchange for a financial gain or comparable advantage.

We believe that much, albeit not all, of what the clause seeks to achieve is already covered by different aspects of existing legislation. I will talk first about those travelling from the UK, forcibly or otherwise, and the protections available for them from having their organs harvested, and then I will turn to those travelling from the UK to receive organs.

Provisions in the Modern Slavery Act 2015 make it an offence to arrange or facilitate another person’s travel, including travel outside the UK, for the purposes of their exploitation in any part of the world. Travelling covers the arrival or departure from any country, or within any country, and exploitation includes the supply of organs for reward. The Modern Slavery Act applies to the activities of UK nationals regardless of where the travel or the arrangements for it take place.

A person found guilty of that offence could be liable for life imprisonment, and those guilty of aiding, abetting, counselling or procuring it are liable for up to 10 years’ imprisonment. This means that existing extraterritorial legislation already makes it an offence for a UK citizen to purchase an organ for transplant overseas, provided that the purchase involves arranging or facilitating a person’s travel for the purpose of the removal of their organ for sale.

Furthermore, section 32 of the Human Tissue Act already prohibits the giving of a reward for the supply, or for an offer to supply, any controlled material. If a substantial part of an illicit transaction takes place in England, Wales or Northern Ireland, it will constitute an offence under this provision. It could, for example, be an offence to arrange a purchase and pay for an organ from a UK bank account and, likewise, it could be deemed against the law if somebody were to take steps in the UK to find someone who would sell them an organ overseas.

By adding an explicitly extraterritorial offence, as this amendment seeks to do, the interpretation of the existing provisions could be restricted, thereby potentially weakening our existing tools under those two pieces of legislation. As this amendment would prohibit travel outside the UK to receive an organ without the specific consent of the donor or next of kin, there is a chance that it could also inadvertently make it an offence for someone from the UK to receive an organ in a country with deemed rather than explicit consent provisions. This is at odds with our domestic position, where deemed consent is accepted as an appropriate form of consent for organ donation.

There is also the possibility of an unintended consequence of criminalising the recipient, as opposed to the supplier and buyer, of a trafficked organ. It is not difficult to imagine a case of a vulnerable person receiving a transplant abroad, perhaps through arrangements made by relatives, and having been misled as to the provenance of their organ. Under these circumstances, we believe that those who made the arrangements to purchase and supply the organ should be prosecuted and deemed liable, as they already can be under the Human Tissue Act and the Modern Slavery Act.

[Dr Whitford]

There is a problem with the shortage of organs for transplant generally within the UK. While making it an opt-out system will hopefully help with that, is there not a need to have legislation here so that the market is discouraged or prohibited, and therefore we do not have customers for those organs overseas? If there are customers, the business will exist.

[Edward Argar]

I take the hon. Lady’s point. I will turn to new clause 15 in a moment, but we are as one in our concern to ensure that the current legislation is as effective as possible and that it does what we want it to do. I will make some further remarks on my future thinking when I conclude.

--- Later in debate ---

[Alex Norris]

I am grateful to the Minister for his full reply. I do not intend to stress the consensus we have by dividing the Committee. He has given others who may want to look at this at a later stage quite a bit to go at. On resolving the point made in new clause 14, I heard what the Minister said about the scattering of the different parts across the statute book, but a judgment may have to be made about whether that is an effective way to organise the powers. Perhaps creating a consolidated offence would be a more practical and meaningful approach. That is my personal view, but as I have said, there will be lots to go at elsewhere.

I got quite a bit of satisfaction from the Minister’s response to new clause 15. I will go away and look at the Human Tissue Authority’s work. Obviously, primary legislation is always best, but I will see whether that is effective.

[Edward Argar]

In that context, may I make the hon. Gentleman an offer? If he thinks there is anything specific that my officials could provide to assist him in his reflections, could he let me know and I will be very happy to facilitate it?

[Alex Norris]

That is a very kind offer and I am almost certainly going to avail myself of it. On that basis, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 16

Licensing of beauty and aesthetics treatments

“(1) No person may carry on an activity to which this subsection applies—

(a) except under the authority of a licence for the purposes of this section, and

(b) other than in accordance with specified training.

(2) Subsection (1) applies to an activity relating to the provision of beauty or aesthetics treatments which is specified for the purposes of the subsection by regulations made by the Secretary of State.

(3) A person commits an offence if that person contravenes subsection (1).

(4) The Secretary of State may by regulations make provision about licences and conditions for the purposes of this section.

(5) Before making regulations under this section, the Secretary of State must consult the representatives of any interests concerned which the Secretary of State considers appropriate.

(6) Regulations may, in particular—

(a) require a licensing authority not to grant a licence unless satisfied as to a matter specified in the regulations; and

(b) require a licensing authority to have regard, in deciding whether to grant a licence, to a matter specified in the regulations.”—(Justin Madders.)

This new clause gives the Secretary of State the power to introduce a licensing regime for cosmetic treatments and makes it an offence for someone to practise without a licence. The list of treatments, detailed conditions and training requirements would be set out in regulations after consultation with relevant stakeholders.

Brought up, and read the First time.

[Justin Madders]

I beg to move, That the clause be read a Second time.

It will be noted that new clause 16 has attracted considerable support from a wide range of Members across the House. I pay tribute to the beauty, aesthetics and wellbeing all-party parliamentary group, whose work in the area has been influential in producing the new clause. Many of the Members who put their name to it are also members of that group. I pay tribute to a constituent of my right hon. Friend the Member for North Durham (Mr Jones), Dawn Knight, who has been assiduous in this area, as has my right hon. Friend himself. Their tireless campaigning, which I suspect will continue for some time, has been vital so far. This is such an important area and it needs an awful lot of attention. We know there is a lot more to be done.

As we know, cosmetic treatments can include a wide range of procedures aimed at enhancing or altering appearance. Many common treatments are offered on the high street and include lip fillers, injectables, thread lifts, semi-permanent make-up, laser treatments, piercings and—one that we are more familiar with—tattoos. Perhaps one day the Minister will show us all of his. If the Minister wants to respond on that point, he is more than welcome to.

[Edward Argar]

He clearly knows something I do not.

[Justin Madders]

Many of these procedures are becoming increasingly popular. There is a well-articulated concern that non-medically and medically trained practitioners are performing treatments without being able to evidence appropriate training, or the required standards of oversight and supervision. One need only look on Facebook, for example, to see the proliferation of adverts for all types of treatments. These are usually done by unlicensed individuals who call themselves doctors. We have talked recently about the lack of proper regulation of social media. Although such a debate is not for today and falls outside the scope of the new clause, it is a matter that also needs to be addressed.

Cosmetic treatments can cause serious harm if not carried out correctly, in a safe environment and by competent, trained practitioners. Anything that punctures the skin carries the risk of the transmission of blood-borne viruses. There are countless tragic stories of people who have had life-changing injuries and conditions as a result of poor treatments. The amendment seeks to put the protection of the public at the forefront by giving the Secretary of State power to bring into force a national licensing scheme for cosmetic procedures. It would be a departure from the wild west we face at the moment. We recognise that significant research and engagement with all stakeholders would be needed to develop a scheme that will work well for all cosmetic treatments, as well as providing a practical and efficient system that will be understood and adhered to by members of the public, regulators and practitioners.

Any new scheme would have to have some flexibility in order to capture new cosmetic treatments coming on to the market in future. It would need to be able to set standards for training, qualifications and competency requirements of practitioners, including, we think, periodic checks of premises. Importantly, it would provide for continuous professional development of the practitioner. There would be a requirement for indemnity insurance and access to redress schemes for members of the public to be provided, should complications arise as a result of any aesthetic procedure. There are a number of sad stories about supposedly reputable companies doing damage to their customers, going into liquidation and their insurers then refusing to pay out. I do not think any Member wants to see that happening anymore if we can do something about it.

We would hope that any licensing scheme would have the characteristics that I have set out, and there would be accompanying sanctions for those who contravene it. At present, there is no provision to ensure that prescription-only medicines, such as Botox and anaesthetic creams, adrenaline and hyaluronidase, which are prescribed by regulated prescribers, are actually prescribed in accordance with safe practice. For example, beauty therapists are reliant on registered prescribers prescribing injectables, such as Botox, which they are unable to obtain without a prescription.

Although doctors are required to have a face-to-face individual assessment of each service user prior to prescribing to third parties, such as beauty therapists, a significant body of evidence exists to confirm that individual assessments are not actually taking place in many cases and that telephone prescriptions are being provided remotely. The proposed licensing scheme would provide a requirement for all prescribers to be officially named and to operate in accordance with required practice standards.

Of equal importance is the need for a licensing scheme to close the loophole that currently exists relating to the import of unlicensed injectable products from Korea, such as Botulax. There is a registration scheme in England for certain specialist treatments, such as electrolysis, tattooing, piecing, semi-permanent make-up and acupuncture. However, some of the riskier and newer types of cosmetic treatment cannot be included within the scope of the current regulatory regime. The system also does not allow regulators to specify conditions, qualifications or competency requirements, or to remove anyone from the practitioner register.

Only a small handful of areas across England have introduced their own licensing schemes in order to protect the public—London, Nottingham and Essex are notable examples. There are currently two Professional Standards Authority-approved voluntary registers of accredited practitioners, and one voluntary register of approved education and training providers that operate in the sector. However, joining is not mandatory, which means there are many unaccredited practitioners providing treatments to members of the public without any checks.

The creation of a national licensing scheme in England for practitioners of cosmetic treatments would ensure that all those who practise are competent and safe for members of the public, and it would also cover some of the newer practices not covered by existing licensing laws. There is a large body of support for such a move, including the Chartered Institute of Environmental Health, the Royal Society for Public Health, the Institute of Licensing, the Joint Council for Cosmetic Practitioners, the UK Public Health Network, the Faculty of Public Health and Save Face, as well as about 90% of the public, accordingly to at least one survey.

The Minister is keen on giving the Secretary of State additional powers, but I know that he is also keen on finding savings wherever possible. Were he to support this new clause, there would undoubtedly be a saving to the wider NHS in the long run—for example, through reduced visits to A&E and GPs to correct mistakes made by poorly trained and unregulated practitioners.

Here are some examples of the impact on the NHS of that lack of regulation: outbreaks of infection at skin-piercing premises, resulting in individuals being hospitalised and, in some cases, disfiguration and partial removal of the ear; second and third-degree burns from lasers and sun beds; allergic reactions due to failure to carry out patch tests or medical assessments, which have led to hospitalisations; and blindness in one eye caused by the incorrect administration of dermal fillers. Those are all tragedies for the individuals involved and mistakes that could be avoided. They are a cost to the NHS and to wider society. I believe that a system of licensing would put a stop to a lot of those tragedies.

--- Later in debate ---

[Edward Argar]

I am grateful to the hon. Member for Ellesmere Port and Neston for bringing this discussion before the Committee today, and I join him in paying tribute to my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) and the right hon. Member for North Durham. I know that both are tenacious campaigners, and both are due to meet me in the coming days to discuss their work in the context of the all-party group and the constituency case, exactly as the hon. Member for Ellesmere Port and Neston mentioned.

I also pay tribute to my hon. Friend the Member for Sevenoaks (Laura Trott) for her success, within a year or so of coming to this place, in getting her private Member’s Bill through. It imposed some further restrictions in relation to botulinum toxin treatments or procedures, particularly in terms of the age limit from which they could be undertaken.

This new clause would give the Secretary of State the power to introduce a licensing regime for beauty and aesthetics treatments, and make it an offence for a cosmetic practitioner to practise without a licence. I appreciate the intention behind the new clause, and I am sympathetic to its intended purpose. As we are aware, cosmetic treatments are an ever-expanding, multi-million pound industry, and we need to ensure that that industry operates in a safe way.

The breadth of the recent beauty, aesthetics and wellbeing all-party group inquiry into non-surgical procedures, which the shadow Minister alluded to, demonstrates that this is an extremely complex area to tackle and address. There is a huge range of non-surgical cosmetic procedures available, which vary in their level of complexity and invasiveness. The Government are carefully considering the findings of that report and the need for additional regulation in this area in the light of it.

We are considering the case for a licensing system alongside the other specific, and in some cases more narrow, recommendations made in the all-party group’s report. As part of that, we need to work further with stakeholders and within Government to clarify the scope of any further regulation and which procedures it might apply to. The private Member’s Bill introduced by my hon. Friend the Member for Sevenoaks came into force at the start of October. It prohibits the availability of botox and dermal fillers to under-18s, apart from in a very narrow set of defined circumstances. We will consider the impact and effectiveness of this important legislation in parallel with the all-party group’s report in assessing whether to expand further the role of local authorities in overseeing cosmetic procedures.

I reassure the Committee that my priority is to ensure that the right regulatory framework is in place to provide consistent and high standards of practice, and the Government are committed to improving the safety of cosmetic procedures through better training for practitioners and clear information so that people can make informed decisions about their care. I hope I can reassure the Committee that we are actively considering whether increased oversight of practitioners performing some of the most invasive non-surgical procedures is the right way forward, and one that we could work with.

We continue to explore carefully how to achieve a proportionate system of practitioner regulation. The all-party group’s report is a very valuable contribution to that work and that active assessment. As soon as that work has been done, we will look to determine the need for and scope of further regulation in this area, and we look forward to reporting our conclusions from that assessment in early 2022. I therefore encourage the shadow Minister not to press the new clause to a Division, and I invite him to work with us in looking at the issue.

[Justin Madders]

I am encouraged by what the Minister has said. I am pleased to hear that he is meeting the right hon. Member for Romsey and Southampton North and my right hon. Friend the Member for North Durham shortly, and that we will hopefully have some progress on this in the new year. In the light of that information, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 17

Secretary of State’s duty to maintain safe staffing levels

“After section 1G of the National Health Service Act 2006 (but before the italic heading after it) insert—

‘1GA Secretary of State’s duty to maintain safe staffing levels

The Secretary of State has a duty to maintain safe staffing levels in the health and care service in England.’”—(Justin Madders.)

Brought up, and read the First time.

--- Later in debate ---

[Edward Argar]

I am grateful to the shadow Minister, the hon. Member for Ellesmere Port and Neston, for his framing of the new clause in his opening remarks.

The new clause would place the Secretary of State under a statutory duty to maintain safe staffing levels in the health and care service in England. I fear that its effect would be to detract from the responsibility of clinical and other leaders at a local level to ensure safe staffing, supported by guidance—I certainly take on board the point about guidance made by the hon. Member for Central Ayrshire—and regulated by the Care Quality Commission. I am afraid that the Government cannot agree with the new clause as worded for a number of reasons, which I will enunciate for the shadow Minister to illustrate my thinking.

First and foremost, we do not believe that there is a single ratio or formula that could calculate what represents safe staffing. It will differ across and within an organisation and, indeed, across organisations. Reaching the right mix requires the use of evidence-based tools and, crucially, the exercise of professional judgment and expertise and a multi-professional approach.

Consequently, we think that responsibility for staffing levels is best placed with clinical and other leaders at a local level, responding to local needs and supported by guidelines, all overseen and regulated by the CQC. Those guidelines, notwithstanding the challenges posed by the hon. Lady and the shadow Minister, are issued by national and professional bodies such as the National Quality Board and National Institute for Health and Care Excellence. They are based on the best available clinical evidence and are designed to ensure patient safety.

Appropriate staffing levels form a core element of the CQC’s registration regime for health and social care providers. Providers are required by the CQC to provide sufficient numbers of suitably qualified, competent, skilled and experienced staff to meet the care and treatment needs of the people using the service at all times. Staff must also receive the support, training, professional development, supervision and appraisals necessary to carry out their role and responsibilities.

Secondly, the new clause would require the formulation of safe staffing ratios against which performance could be assessed. I fear that that could be a retrograde step and inhibit the development of the skill mixes needed for a more innovative and productive future workforce, which will be crucial to the successful implementation of the new models of integrated care that the Bill is intended to support. Just as there is no one-size-fits-all approach for the new models of care, there will be no identikit approach to the mix of staff needed. The ultimate outcome of good quality care is influenced by a far greater range of issues than how many of each particular staff group are on any particular shift, according to a prescribed ratio. It requires the professional expertise and judgment of those who know the situation best in a given circumstance. The point I seek to make is that, although those numbers are a key part, they are not the only part.

This is, perhaps, more of a technical point than a point of substance, but the specific wording of the new clause is incredibly broad. It would potentially require the Secretary of State to assess safe staffing levels across all healthcare settings across the whole of England for all medical and clinical staff. Such a duty would, I fear, be challenging to implement, notwithstanding the shadow Minister’s assertion that he would not expect the Secretary of State to sit there each morning going through shift rotas and shift patterns himself. It would be challenging for not only the Department but the wider system and, in particular, clinical leaders in individual settings.

For those reasons, while I appreciate the sentiment and the objective sought by the shadow Minister, I do not believe the new clause is the appropriate practical solution.

[Justin Madders]

I am grateful for this Minister’s response. I am not surprised that he is not prepared to the support the new clause. Unfortunately, I think there is a large chasm where responsibility for workforce issues probably lies, and this is an example of that. It was certainly not our intention to expect the Secretary of State to deliver each individual setting, but for someone in the system to have that responsibility of advising the Secretary of State. No doubt we will return to this. We will see the practice in the devolved nations and how that has proved to be a success or otherwise, which may strengthen or weaken the argument. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 18

Workforce responsibilities of integrated care boards

“(1) Each integrated care board must at least every two years publish a report setting out an analysis of the current workforce, the workforce requirements to enable the Board to fulfil its duties over the following 2, 5 and 10 years, and the plans the Board has to close any gaps identified.

(2) In drawing up the report the Board must consult—

(a) the Trusts and Foundation Trusts that provide services in its area,

(b) providers of primary care in its area, and

(c) the recognised trade unions.”—(Justin Madders.)

Brought up, and read the First time.

[Justin Madders]

I beg to move, That the clause be read a Second time.

We are back on the workforce. We had a brief discussion about the proposals in clause 33 on the Secretary of State and workforce planning, and how they are by universal acclaim wholly inadequate. Now is not the time to repeat that debate, although I may shoehorn in one or two references to it. We hope that at some point there will be a better proposal on the national efforts to assess and meet workforce needs.

The new clause tries to repeat the intentions of the amendment to clause 33, and to take some of that thinking and translate it to ICB level. That makes a lot of sense to us, and in an ideal world some of the national plan would be made up of individual local assessments of need and add together the 42 ICBs into one national workforce plan. We will see where we end up with that. As I said, we have had some attempt at this with each STP trying to produce its own plan to a very abrupt timetable. I do not think anyone actually added up all their assessments to come up with a national figure. Because of the truncated timetable they faced, there was not a great deal of engagement with the workforce on that.

There is therefore a bit of a precedent in the work that was done on that. It is probably what you would call a gap analysis: what is needed against what we are likely have unless something is done to close that gap. The new clause follows that approach, which has had some support in some other areas. We felt that a two-year cycle was about right, with reporting on that two-year cycle covering short, medium and longer-term need.

It is hard to see why we will not have local plans if we are going to have national plans, to make sure that there is alignment when, as we hope, the Government come back with something better on clause 33. Looking at the total staff in the NHS and social care for an ICS, some of the larger ones will be running into hundreds of thousands of people. It is hard to think of any system with that many staff where some sort of workforce planning is not going on. If we are looking at things across system level, as the ICS is, surely workforce needs across the system would be part of that. We know that ICBs, together with the relevant trusts and foundation trusts, have the general duty to produce a plan annually, setting out how they propose to exercise their functions over the next five years. They will not be able to do that without the right staff.

A lot of the ground work entailed in the new clause will have been done already. It is our intention that it will try to remove any possibility of blame shifting, where inadequate resources lead to reduced services and the service providers are blamed, rather than those who hold the purse strings in Whitehall. The reporting required by the new clause will make it clear whether there are enough staff to meet all the reasonable requirements of the ICB.

The other key point covered by the new clause is who is consulted in the local planning process. We believe it vital that recognised trade unions are involved. That should be a given anyway, in the light of the general commitments from the NHS over partnership working, but as we have covered before, we think that needs to be explicit in the legislation because of the behaviour of a few NHS bodies in trying to marginalise staff involvement in recent times.

The ICBs will new bodies, and they will need to understand the importance of partnership working from day one. If the levelling-up and devolution agendas are to continue to flourish, surely the regional and sub-regional identification and development of skills in this important area ought to be part of the mix. It feels, I am afraid, as though the whole issue of workforce is being assiduously side-stepped by the Department. That is the Department’s prerogative, but it is a mistake and it is those on the frontline who will bear the brunt. We need someone to take responsibility, so why not the ICBs?

Without its workforce, the NHS is nothing. We are grateful to each and every one of its staff for the work that they do. We owe it to them, the patients and the taxpayer to have in place a proper system of workforce planning. Although we do not pretend that the new clause is the whole answer, it would begin to put in place the building blocks to achieve that.

[Edward Argar]

The new clause would place a new statutory responsibility on integrated care boards to publish, at least every two years,

“a report setting out an analysis of the current workforce, the workforce requirements to enable the Board to fulfil its duties over the following 2, 5 and 10 years, and the plans the Board has to close any gaps identified.”

Under the new clause, ICBs drawing up that report would be placed under a statutory duty of consultation with the trusts and foundation trusts in their area, providers of primary care and the recognised trade unions. The Government’s view is that that is an unnecessarily prescriptive duty on ICBs, and that clause 33 —alongside our non-legislative work and investment—remains the right way to develop the NHS workforce.

On the workforce nationally, what is needed is greater transparency and accountability for the various bodies involved in workforce planning. Clause 33 requires the Secretary of State to produce a report describing the workforce planning and supply system—including the roles of DHSC and its arm’s length bodies; NHS bodies, including ICBs and others; and how they work together—to provide that greater transparency.

To support local ICBs on workforce matters, work is already being taken forward on workforce planning through NHS England and NHS Improvement’s draft guidance to ICBs on the discharge of their functions. The draft NHSEI guidance, published in August 2021, states that the intended outcomes for ICBs will include,

“Growing the workforce for the future and enabling adequate workforce supply”,

as well as,

“Leading coordinated workforce planning”.

The guidance notes state explicitly that ICBs will have the responsibility to develop

“plans to address current and future predicted workforce supply requirements”,

which I believe addresses the core intention of the shadow Minister’s new clause.

The production of those plans will require ICBs to develop and regularly refresh collaborative workforce plans for their integrated care area, with demand and supply planning based on population health needs. As part of that work, we can expect ICBs to work with local stakeholders in their areas. ICBs will also be supported by Health Education England on such workforce planning matters. Under the guidance, ICBs will also have the responsibility to provide workforce data to regional and national workforce teams to support workforce planning and inform the prioritisation of workforce initiatives and investment decisions.

We join the shadow Minister in putting on the record our gratitude to our health and care workforce, but we think that that guidance already sends a strong signal to the system about the importance of the issue, and we therefore do not support his new clause.

[Justin Madders]

I am not surprised, although I am a little saddened, that the Minister has once again adopted the permissive rather than prescriptive approach. We think that the issue is so important for the NHS that it needs a firmer hand. I am sure that I will quote back to him his comments about the need for greater accountability and transparency in workforce planning, because that is something that we absolutely agree on. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 19

Secretary of State’s duty to provide access to occupational health services to NHS staff

“After section 1G of the National Health Service Act 2006 (but before the italic heading after it) insert—

‘1GA Secretary of State’s duty to provide access to occupational health services to NHS staff

The Secretary of State must provide access to occupational health services to meet the reasonable requirements of all persons who are employed in an activity which involves or relates to the provision of services as part of the health service in England.’”—(Alex Norris.)

This new clause would place a new duty on the Secretary of State to provide access to OH services to meet the reasonable requirements of all NHS staff. The duty would apply to all healthcare professionals delivering health care including doctors, dentists, nurses, midwives, pharmacists, healthcare scientists and the allied health professions.

Brought up, and read the First time.

[Alex Norris]

I beg to move, That the clause be read a Second time.

The past 18 months have made clearer than ever the health risks that our health workers face at work, as they have dealt with unprecedented pressures during the pandemic. Occupational health is a multidisciplinary approach to maintaining the wellbeing of those employed in a workplace, preventing and removing ill health and developing solutions to keep staff with health issues at work, the most common problems being mental health and musculoskeletal issues.

Occupational health services occupy a unique position as neither the employer nor the employee. I remember in my time as a union official helping NHS staff with issues at work, and we would howl at times at things that occupational health came up with. Then we met management and realised that they were howling about it too, so we realised that the occupational health practitioner was probably in the right place. That is a very specific and special place, in the NHS and beyond, and we should want our wonderful NHS staff to have proper access to it.

Currently, the NHS provides access to occupational health services to the vast majority of staff in acute trusts, but the policy is inconsistent. While NHS England is making efforts to expand access through the growing OH programme, those efforts need to be accelerated and supported, which is what the new clause would do.

In secondary care, the provision of services tends to depend on legal requirements on safety, for example checking for blood-borne viruses in advance of performing surgical or other procedures that could pose a risk to patients from the infected clinician, rather than occupational health provision that supports individuals to remain at work based on other needs they might have.

Similarly, the co-ordination of occupational health services in primary care has suffered since the abolition of primary care trusts in the Health and Social Care Act 2012. As a result, there is far less provision in primary community care settings. Some of the funds previously allocated to PCTs in support of occupational health services were diverted to the practitioner health programme—PHP— which provides mental health support for NHS staff. While that is valuable, the PHP is not a replacement for specialist occupational health services that are ready to work with both employer and employee on issues beyond mental health. That means that key parts of the NHS workforce—GPs, practice nurses and pharmacists—lack full access to occupational health services, and that has real implications. We worry about burnout in all those groups, especially after the 18 months we have just had. For some of our staff, A&E is the only avenue for treatment, in cases of exposure to infectious disease or a needle stick, for example. That is unsuitable and we could do much better than that.

We think it is vital for NHS staff wellbeing and staff retention that all NHS workers have access to occupational health services when they need them. We are not asking for something extra or beyond the scope of current conception. In 2016, NHS England introduced a commitment for OH services to be provided across the NHS, stating its intention to achieve

“a nationally standardised Occupational Health Service…that is equitable and accessible.”

That is a very good commitment, but five years on it remains unfulfilled. The new clause would put that on a statutory footing and get it going.

The Secretary of State already has several duties to NHS staff, in relation to education and training, for example, under the 2012 Act. The new clause would fulfil the 2016 commitment and meet the needs of NHS staff by requiring the Secretary of State to meet any reasonable OH requirements for anyone employed by the NHS directly or indirectly. It would be really good for our staff and, in turn, for the health service and those it serves. I hope that the Minister will give it positive consideration.

[Edward Argar]

As the hon. Member for Nottingham North set out, the new clause seeks to legislate for an additional duty on the Secretary of State to provide access to occupational health services to NHS staff.

The NHS is what it is thanks only to the hard work of its staff. The Government and Members of Parliament on both sides of the Chamber are immensely grateful to them. Caring for people throughout the pandemic has required a phenomenal effort from so many people, ranging from students and trainees to new recruits, established staff and those returning to the workforce. The dedication and resilience of NHS staff has been incredible—indeed, humbling—to witness. They have consistently placed the needs of patients before themselves, as indeed they do year in, year out, but they have done so in particularly challenging circumstances over the past year and a half or so.

If healthcare staff are to provide excellent care to patients, they need to receive excellent support themselves. Occupational health services play an important role in ensuring that staff get the support that they need to do their jobs and to flourish in them. Throughout the pandemic, we have placed a strong emphasis on supporting staff wellbeing. In July 2020, we published the NHS “People Plan”, which prioritises staff health and wellbeing. That was supported by the roll-out of a comprehensive national health and wellbeing support offer, which has been accessed by staff across the NHS.

The past 18 months have seen many NHS organisations respond with empathy and agility to the pandemic, and occupational health teams have developed innovative ways of supporting their colleagues. As we move towards, or into, the recovery phase, there is a great need to build on that focus and momentum, to ensure a healthy, sustainable workforce going forward. As we look to the same workforce who have taken us through the pandemic to tackle the waiting lists and waiting times, we must recognise, and be open with those who watch our proceedings and listen to us, that that task of rebuilding and getting the waiting lists down will be challenging. We owe it to the staff to be clear about that, because they are the same staff. They are physically and emotionally exhausted, and we have a duty of care to them, and must enable them to rebuild their physical and emotional strength after what they have been through over the past year and a half.

That is why the NHS priorities and operational planning guidance, published in March 2021, puts staff wellbeing and the recovery of the workforce right at the top of the list of priorities for the NHS. To support that, NHS England and NHS Improvement have launched a new programme to strengthen and improve occupational health across the NHS. That will look at how we can improve occupational health services, grow the occupational health workforce, develop their capability, empower local leadership and bring a strengthened focus on proactive and preventive care. It will build on best practice across the country and will inform future blueprints for potential service delivery models, with the aim of having a five-year service improvement strategy for occupational health in the NHS. It is being developed with the support of Dr Steve Boorman and the Faculty of Occupational Medicine, the Society of Occupational Medicine, the Council for Work and Health and the NHS Health at Work network, as national occupational health partners that both represent the voice of and link directly with occupational health professionals. That work, and the broader programme of work through the NHS “People Plan” to transform the NHS as a place to work, demonstrates our strong commitment to supporting staff health and wellbeing in the NHS.

As a result, we do not believe that this new clause is necessary, although we appreciate the sentiment, objective and aims sitting behind it. Our concern is that drawing out occupational health over and above other aspects of health and wellbeing support does not necessarily help to drive forward the other work done, which I have alluded to and which provides staff with a more comprehensive package that can be tailored to individual or group staff needs. There is a risk, though I suspect it is a small one, that occupational health could become a tick-box exercise to comply with, which would detract from the full journey of health and wellbeing support. Occupational health is part—indeed, a vital part—of that, but it is not the solution in and of itself, alone.

For the reasons that I have set out, I ask the hon. Gentleman to consider not pressing the new clause to a Division at this point.

[Alex Norris]

I am grateful for that response. I do not intend to push this new clause to a Division. I have made my case about the importance of occupational health, and I understand what the Minister said about the broader range of interventions. Of course, we would support those, too, but particularly here, we really need to get to the point of having full coverage. Only NHS England has committed to that. I hope that today we have at least sounded the signal that the pace is too slow, and that we ought to get on with it. I hope that the Minister will keep the matter under consideration. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 23

Cap on private charges

‘(1) Section 43 of the National Health Service Act 2006 is amended as follows.

(2) Leave out subsection (2A) and insert—

“(2A) An NHS foundation trust does not fulfil its primary purpose if the proportion of the total income of the NHS foundation trust in any financial year derived from private charges is greater than the proportion of the total income of the NHS trust derived from such charges in the financial year ending 31 March 2022.

(2B) For the purposes of subsections (2A) and (2C) “private charges” means charges imposed in respect of goods and services provided to patients other than patients being provided with goods and services for the purposes of the health service.

(2C) An NHS foundation trust does not fulfil its principal purpose if in any year the proportion of the total income derived from private charges is greater than the proportion of the total income of the NHS trust derived from such charges in the previous financial year unless—

(a) the appropriate integrated care boards and integrated care partnerships have been notified of the intention that this increase will occur;

(b) that intention has been published with a statement of the reasons why it is considered to benefit the NHS;

(c) the appropriate integrated care boards and integrated care partnerships have used reasonable endeavours to consider any responses to the publication mentioned in (b); and

(d) any integrated care board which has commissioned services from the trust, and the integrated care partnership for the board, have informed the NHS foundation trust that the proposed increase is justified.”’—(Justin Madders.)

This new clause would prevent NHS foundation trusts increasing their income from private patients year on year unless the conditions set in subsection (2C) are met.

Brought up, and read the First time.

--- Later in debate ---

Every consultant, anaesthetist and nurse undertaking private procedures for an NHS trust is being taken away from doing that same work directly for the NHS. We need to reverse that 2012 change and go back to ensuring that NHS private patient work is constrained to those small areas where it may genuinely benefit the NHS as a whole. With this new clause, we seek to put some sense back into the system, which has got hopelessly confused and does not benefit the taxpayer or patients.

[Edward Argar]

The hon. Gentleman’s new clause would effectively prevent NHS foundation trusts from increasing their income from private patients year on year unless a number of specified conditions were met.

If hon. Members are students of history, they will recall that in 2012 we abolished the private patient cap, while clarifying that the foundation trusts’ principal purpose was

“the provision of goods and services for the purposes of the health service in England”,

meaning that foundation trusts must make the majority of their income from NHS activity. That was a more rational and sensible way of managing the issue than the previous cap, which caused practical problems for some NHS organisations that wanted to become foundation trusts and were prevented from doing so by the prescriptive nature of the previous regime. We also retained the requirement that additional income be used to benefit NHS patient care. It has been used across the system to offset maintenance costs, finance alternative transport such as park and ride, and fund patient care.

I should also be clear that we are talking about a very small percentage of the NHS’s income. The most recent set of provider consolidated accounts for 2019-20 shows income from non-NHS sources as 2% of income, of which less than 1% relates to private patients. Again, all that income has gone to improving care for NHS patients.

The new clause introduces a new cap by a different door; it creates a requirement for foundation trusts to agree with their ICB and ICP their income from non-NHS sources, and if they raised more than in the previous year, they would no longer be fulfilling their primary function as a foundation trust. That would be a significant bureaucratic and administrative burden on foundation trusts, and it would require them to either forgo raising additional income, or seek agreement via a multi-stage process before raising it.

The provision would also mark a significant new restriction on foundation trusts’ freedoms and autonomy, and could potentially dissuade some from wishing to become foundation trusts. As all non-NHS income must benefit NHS patient care, and an NHS foundation trust must always have as its primary purpose the delivery of NHS services, I fear that would potentially be putting ideological purity over practical interests and the practical working of the system.

New clause 23 would only apply to foundation trusts, as I read it, not NHS trusts. NHS trusts do not have a limit on the amount of income they can raise from private patients, and a very small number of trusts raise significant income in this way. Putting an additional requirement on foundation trusts before they can raise non-NHS income, but not doing the same for NHS trusts, would potentially further unbalance the playing field and give an additional nudge in the direction of foundation trusts.

The hon. Gentleman raised the issue of the costs or spending on the independent sector in the context of the pandemic response. I have been clear throughout that when the accounts are fully consolidated and audited, those figures will have to be reported. I cannot say exactly when that process will be complete, but it is a requirement that those accounts be gone through, consolidated and audited. I would hesitate to give him an inaccurate figure, but it is my intention for those figures to be made available at the appropriate time. With that, I invite the hon. Gentleman to consider withdrawing his new clause.

[Justin Madders]

I hesitate to withdraw the new clause, because I have to say that the Minister’s arguments about not wanting to deter foundation trusts from making applications rang a little hollow, but we would not want to be accused of preventing that procession from continuing. We have set out very clearly why we do not think this residue from the 2012 Act should remain on the statute book. We think it sends out the wrong message and is actually unhelpful at this time, but we will not push the new clause to a vote. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 24

Requirement for NHS trusts to publish Royal College invited review reports

“Each NHS Trust in England must publish the reports produced by Royal Colleges of invited reviews of the Trust, including any conclusions and recommendations.”—(Justin Madders.)

This new clause would require Trusts to publish Royal College invited review reports.

Brought up, and read the First time.

--- Later in debate ---

[Edward Argar]

The new clause would require each NHS trust in England to publish any report by a medical royal college of an invited review of the trust. That includes any conclusions and recommendations. It is right, as the hon. Gentleman mentioned, that trusts are open and transparent in managing any concerns about the quality and safety of their services, and, in particular, regulators should have access to any royal college invited review of a trust.

I have considerable sympathy with the intention of the new clause. We all want to improve patient safety and care, and I recognise the key role that transparency can play as part of that. However, I will explain why I am not convinced that this objective is best advanced by acceptance of this particular new clause. Managing concerns about clinical quality openly and transparently is essential for trusts if they are to provide consistently high quality, safe care, to show quality of leadership and to maintain trust in the trust and the service it delivers.

When the CQC finds that there has been a failure to do so or that fundamental standards of care are not being met, it is reflected in the CQC’s reports and ratings and in the range of enforcement powers it can use. The CQC’s inspection teams maintain ongoing engagement with trusts and make it clear that they expect trusts to be open and honest about issues of quality and safety of services. Furthermore, the CQC has been clear with trusts that reports, including invited reviews by royal colleges, should be made available to relevant commissioners and regulators, including the CQC. The CQC, NHS England and NHS Improvement expect trusts to take prompt actions to address appropriate recommendations, and the framework for invited reviews from the Academy of Medical Royal Colleges is clear that trusts and royal colleges undertaking reviews should share any serious patient safety issues from reports with the CQC.

As part of the CQC’s monitoring and inspection activity, it assesses how trusts have acted on recommendations from these reviews, including implementing any learning to make improvements. Since July 2018, the CQC has set a very clear expectation on trusts to share copies of the full final report of external reviews, including those by royal colleagues, and to inform it of steps they are taking to implement any recommendations. The CQC, working with providers, NHS England, NHS Improvement and the Academy of Medical Royal Colleges, has seen improvement in the development of an open and transparent culture.

The CQC has powers to compel a trust to share an invited review where it is aware of that review. Where serious issues of care are uncovered, NHS England and NHS Improvement can also compel a trust to take whatever steps are necessary to address them. This includes the sharing of an invited review to itself. The CQC is now reviewing its regulatory model, including its approach to monitoring and gathering evidence from providers. In doing so, it will continue to work with trusts and royal colleges, including on sharing and responding to findings from external reviews to encourage a culture of openness and transparency.

There are robust and transparent systems in place to ensure that providers learn from and improve their services. This includes publishing more than 100 reports every year, covering 40 clinical specialisms as part of the clinical audit programme by NHS England and NHS Improvement. NHS England and NHS Improvement also publish regular data on patient safety incidents, other safety indicators and patient safety alerts. They also provide support to challenge providers to improve governance and culture.

Invited reviews are a voluntary process. They are an advisory, non-regulatory and non-statutory way for trusts to assure patient safety and quality of care through the use of an independent review, but compelling the publication of the full report could lead to some unintended consequences. First, it could discourage some trusts from commissioning these invited reviews. That could lead to trusts overlooking specific actions to address safety and quality concerns and opportunities for improvements and learning. Secondly, it could lead to trusts inviting consulting firms and other professional bodies with less expertise in the delivery of clinical care than a team from the royal college to undertake reviews. Thirdly, invited reviews can vary widely in their scope and may not be directly patient safety-related. Therefore a blanket requirement to publish all reports may not be appropriate.

Fourthly, the specific information that a trust can make publicly available will vary from review to review, depending on the circumstances. Invited reviews can often involve sensitive and complex circumstances and cover confidential issues about staff and patients. Trusts need to take account of legislation on patient confidentiality and data protection each time a report is developed. It may therefore not be possible for every invited review to be a published document. The Academy of Medical Royal Colleges recommends that trusts should take steps to make available to the public a summary of the review and the steps they are taking.

Finally, requiring publication of invited reviews could attract attention in a way that affects staff morale and organisational learning, and not in a constructive way. It could make future invited review reports weaker or drive necessary conversations and actions off the record. For these reasons, while I can understand the hon. Gentleman’s point and where he is coming from, we believe that the mechanisms already in place are sufficient and achieve the right balance.

[Justin Madders]

I am slightly heartened by what the Minister said there. He obviously takes the matter seriously. We are not going to press this to a vote, because we recognise that there is some concern in the sector about this proposal. I ask him to reflect on what he said about a requirement possibly discouraging trusts from seeking invited reviews in the first place. That shows that reputation management is still at the forefront of their considerations rather than patient safety. That is the heart of the problem that we have been seeking to tease out with this new clause. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 25

“Secretary of State’s duty to report on disparities in maternal mortality rates

The Secretary of State must prepare and publish a report each year on variation in the quality and safety of England’s maternity services and disparities in maternal mortality rates in England, including the steps being taken to address these disparities and improve outcomes for patients.”—(Justin Madders.)

This new clause lays a duty on the Secretary of State to prepare and publish a report on variation in the quality and safety of England’s maternity services and disparities in maternal mortality rates in England, including what steps his department is taking to address these disparities and improve outcomes for patients.

Brought up, and read the First time.

[Justin Madders]

I beg to move, That the clause be read a Second time.

This clause, in the words of Ronseal, does exactly what it says on the tin. It lays a duty on the Secretary of State to prepare and publish a report on variation in the quality and safety of England’s maternity services and disparities in maternal mortality rates in England. The report would include details of the steps that the Department was taking to address these disparities and improve outcomes for patients. We all know that this issue is of paramount importance and has been debated in the House several times recently. I hope that the Minister agrees that it is important that we take whatever steps we can to tackle all forms of inequality in our society and this is another example of how that manifests itself.

Covid has sharpened our awareness of health inequalities, but it is clear that it is not just with respiratory viruses where health outcomes can be staggeringly different for different groups. Maternity services are one of the areas where we can and must do far better. The Care Quality Commission report “Safety, Equity and Engagement in Maternity Services”, published in September, highlighted continued concern about the variation in quality and safety of England’s maternity services and presented analysis of key issues that persisted in some maternity services. It also highlighted where action was still needed to support vital improvements. In the UK’s poorest areas the stillbirth rate is still twice that in the UK’s most affluent ones, with pre-pandemic figures showing that babies in the poorest areas have a 73% excess risk of neonatal death. All mothers and babies deserve the very best care and it simply cannot be right that where people live might dictate the quality of the maternity care received. Action is needed to eradicate maternal inequalities.

It is not just geographical and socioeconomic inequalities that need to be tackled but ethnic inequalities. Evidence from MBRACE-UK––Mothers and Babies Reducing Risk Through Audits and Confidential Enquiries across the UK––shows that the maternal mortality rate is more than four times higher for black women compared with white women. The maternal mortality rate for Asian women is almost twice as high compared with white women. Those inequalities are an injustice, and we need action to address them.

I recognise that many black, Asian and minority ethnic women also do not feel that they are listened to during childbirth. A lack of cultural competency and medical training means that complications are not always spotted early enough. For example, black women have shared experiences of how anaemia has not been picked up soon enough because of their skin colour. We really ought to be doing better than that.

The Government have said that they have hosted several roundtables with experts and have commissioned more research to better understand the issue. However, they believe that a target to address maternal mortality disparities would have limitations in improving the quality of care. Why do they hold that view? NHS England’s long-term plan includes targets for addressing health outcomes in other areas. We need action to address the unacceptable disparities in maternal mortality rates as well.

The Joint Committee on Human Rights found that over 60% of black people did not believe that their health was equally protected by the NHS compared with white people. As we know, covid has had a disproportionate impact on BAME communities.

If not a target, then a report would ensure accountability and focus minds to address these unacceptable injustices. New clause 25 would put explicit accountability on the Secretary of State not only to monitor and report on variation in maternity services but, crucially, to set out the steps needed to tackle it. We need a national strategy to address this country’s health inequalities, which must include serious and urgent action to end the mortality gap between black, Asian and ethnic minority women and white women. The new clause is, of course, not the complete answer, but I hope the Minister will agree that it would be a welcome step in the right direction.

[Edward Argar]

Again, I am grateful to the shadow Minister. The new clause would require the Secretary of State to publish a report each year on variation in the quality and safety of England’s maternity services and on disparities in maternal mortality rates in England. Again, I understand the intention behind the new clause, which the hon. Gentlemen set out clearly, as it is paramount that we do all we can to ensure the safety of expectant mothers and their babies, which involves understanding and taking steps to address the variation in quality and safety of England’s maternity services and disparities in outcomes.

However, several organisations and bodies already publish reports each year on the variation of quality and safety of England’s maternity services and the disparities in maternal mortality rates. First, the CQC monitors, inspects and regulates maternity services across England to ensure they meet standards of quality and safety. Following an inspection, it provides findings, recommendations and an overall rating of the trusts. It also publishes monthly reports following inspections of maternity services and annual reports that explore areas for improvement in maternity services across England.

Secondly, “Better Births”, the report of the national maternity review, recommended that a nationally agreed set of indicators should be developed to help local maternity systems to track, benchmark and improve the quality of maternity services. In response, NHS England and NHS Improvement, in partnership with NHS Digital, have produced a national maternity services dashboard. The dashboard enables clinical teams in maternity services to compare their performance with their peers on a series of clinical quality improvement metrics, or CQIMs, and national maternity indicators, or NMIs, for the purposes of identifying areas that may require local clinical quality improvement.

Thirdly, MBRRACE-UK publishes annual reports on maternal deaths, stillbirths and neonatal deaths across the UK. Stillbirth and neonatal mortality rates are provided for individual NHS providers, commissioning boards, and local authorities in England, Scotland, Wales and the Crown dependencies. It would not be possible to report annual maternal mortality rates by NHS trusts because the numbers are very small—it would not be a meaningful statistic. That would also potentially risk individuals being identified and could result in contravention of data protection legislation.

The reports by MBRRACE-UK also look at health inequalities; its analysis has identified significant differences in maternal mortality rates, which the shadow Minister mentioned, between women from black or Asian minority ethnic backgrounds and white women, and between women from lower and higher socioeconomic backgrounds.

Finally, the National Maternity and Perinatal Audit, or NMPA, is a large-scale audit of NHS maternity services across England, Scotland and Wales. The NMPA publishes trust-level data and evaluates a range of care processes and outcomes to identify good practice and areas for improvement in the care of women and babies.

--- Later in debate ---

[Alex Norris]

I congratulate the right hon. Member for Kingswood on his excellent new clauses and the case that he has made for them. We strongly agree that the training and development of staff ought to be to the fore. We must take the opportunity of understanding that we have a workforce crisis at a time of significant technological development.

Take cancer services, for example. We are all concerned about gaps in cancer provision. We need to take the opportunity to turbo-leap forward, rather than trying to restore services to where they were pre-pandemic, when targets were being missed, and had been missed for a number of years. Let us train and develop our staff to use new and innovative approaches, such as new radiotherapies. There is real opportunity there. With respect to new clause 27, the right hon. Gentleman makes a strong case for harnessing the ability of our universities and colleges, and putting that together with our workforce to develop and improve our services.

On new clause 28, the right hon. Gentleman mentioned the paradox of us having profound workforce shortages—in August, there were about 94,000 vacancies, including for nearly 40,000 nurses—while 14,000 applicants were not accepted on to nursing courses in 2018. I understand that there was a significant increase in 2019, but it was not big enough to meet our shortfalls, so that is a real paradox. Our services are not sustainable until and unless we take deliberate action to increase capacity. I know that the right hon. Gentleman does not intend to push the new clause to a Division, but I hope to hear from the Minister about what conscious decisions are being taken. This concerns not just those big courses either, but smaller ones, such as paramedic science and radiography. University Alliance members have reported 1,000 applications for 40 to 50 places, so there is demand. Of course, they cannot just take everybody and there has to be a filtering process, but it feels very over-geared to have 20 or 25 times the applicants per place.

I will not repeat the right hon. Gentleman’s arguments about GPs, but they were good. We should use this moment to change our approach to how we grow our GPs. What do we know about GPs? We know that we do not have enough of them, and that we certainly will not have enough of them in five or 10 years’ time. We know that certain communities find it particularly hard to attract GPs, but also that GPs tend to stay where they train or, if not, they are more likely to go back to where they grew up. As part of any so-called levelling up, we need to focus on growing our own GPs in poorer communities such as mine, and similar midlands communities—perhaps you share some of that vision, Mr McCabe—but we do not quite put this together.

Many of my constituents tend to enter education quite a way behind; they really close the gap over their 14 years of formal education, but fall just short of those very high standards that are needed at the age of 18 to go on to university. Should we be writing off those young people? Could we be doing better at getting them on courses to be GPs? I suspect that we would be able to retain them in Nottingham, or at least attract them back there, and to the surrounding towns, which desperately need GPs. Similarly—this is not a long-term answer, but it is certainly one for the short term—one of my foundational moments in my views on migration came from working in a shop the year after finishing school and before going to university. I was often on the rota with a man from Iraq, who was a trained civil engineer in Iraq, but could not afford to convert his qualification. He could not work in that field and instead worked with me in that shop. It always seemed to me like a significant waste of his skills.

I will take this moment to plug a wonderful project in Nottingham called the phoenix programme, in which students at the University of Nottingham School of Medicine work with migrants to this country who have medical qualifications at home but cannot practise because they need to convert the qualifications and often cannot afford to. Those medical students are working on language, functional skills and all the different aspects of the exams that those individuals will take, in order to help those people become doctors in this country. What a wonderful thing to do.

If we think about however many hundreds of thousands it costs to train a GP in this country, we realise what a saving they are making for us, too. I think that is a wonderful thing. We need that level of creativity on workforce in order to deal with our gap.

I will make no further points—I do not want to repeat what the right hon. Member for Kingswood said—but if those are not going to be the answers, I hope we hear from the Minister what the answer is. If we go for more of the same, we will just see growing workforce gaps and we really will have profound problems in our health service.

[Edward Argar]

I am grateful for the opportunity to address new clauses 27 and 28 together. First, new clause 27 seeks to place a specific duty on the Secretary of State to support the transformation of the health and social care workforce for integrated care systems by working with universities and colleges to train the future workforce through investment in technological and inter-professional innovation.

I take on board the broader points made by my right hon. Friend the Member for Kingswood, but we do not believe that the new clause is necessary, as that work is already covered by section 1F of the NHS Act 2006, which the new clause seeks to amend. Section 1F(1) sets out that the Secretary of State has a duty

“to secure that there is an effective system for the planning and delivery of education and training to persons who are employed, or who are considering becoming employed, in…the health service”.

Discharge of the duty under section 1F(1) is largely delegated to Health Education England through section 97 of the Care Act 2014. To meet its statutory duties and to ensure that an effective education and training system is in place, HEE undertakes a variety of work, including with further and higher education providers and regulators. Part of that work includes the curriculums for the healthcare professions. Those curriculums are set by approved education providers at an institutional level. HEE can influence the content by representing the employer voice to ensure that the training that individuals receive is relevant and remains up to date.

As part of that work, HEE is particularly keen to ensure that technological and medical advances are included in teaching, alongside new ways of working. Those measures would support newly qualified professionals to be suitably prepared to launch their careers in the NHS. To support that work and engagement with universities, HEE commissioned the Topol review, published in February 2019—probably in association with my right hon. Friend in one of his previous ministerial roles—on how to prepare the healthcare workforce to deliver the digital future.

That review made recommendations that will enable NHS staff to make the most of innovative technologies such as genomics, digital medicines, artificial intelligence and robotics to improve services. The recommendations support the aims of the NHS long-term plan and the workforce implementation plan, helping to ensure a sustainable NHS. The progress report was published by HEE in 2020 and, as part of the implementation report, HEE has launched a digital readiness programme to continue to lead on developments in preparing the workforce to deliver the digital future.

On inter-professional working, we want a workforce that is less siloed and more flexible and adaptable, and work is ongoing to take that forward in England. For example, at the national level, we are looking at new skill mixes to meet new service models. Those new mixes could include upskilling existing staff, so that more staff are able to do things that have traditionally been limited to a smaller group of professionals—for example, prescribing—or making better use of the wide range of skills and contacts available to reduce duplication.

At ICS level, national guidance on the ICS people function also set out the expectation that the ICB, working with the ICP, will have responsibility for enabling workforce transformation across the health and care system, including through the use of technology and innovation, as well as for work with educational institutions to develop the local future workforce. Nationally, arm’s length bodies will support and enable ICBs to deliver those responsibilities at a local level. I hope that that highlights some of the work being done under the existing statutory duty in section 1F of the 2006 Act.

Secondly, new clause 28 seeks to place three new statutory duties on the Secretary of State. That, in a sense, is at the heart of what my right hon. Friend the Member for Kingswood was getting at. They are: a duty to ensure a sufficient number of clinical placements for the number of students; a duty to ensure innovation—his new clause outlines greater interdisciplinary working, digital technology and simulation as three examples—is supported and funded in the education and training system; and a duty to consult universities and others on clinical placement availability.

We have carefully considered my right hon. Friend’s new clause, but we do not feel that those additional specific statutory duties are necessary, in addition to the existing statutory duty on the Secretary of State in section 1F of the 2006 Act, which my right hon. Friend seeks to amend. Section 1F sets out that the Secretary of State has a duty to ensure that there is an effective system for the planning and delivery of education and training to persons who are employed, or who are considering becoming employed, in the health service. Discharging the duty under 1F(1) is largely delegated to HEE through section 97 of the Care Act 2014.

As the hon. Member for Central Ayrshire said, clinical placements are a vital part of healthcare students’ education and training. Good experience during a placement can lead a student to seek employment at their placement provider. As a result, ensuring that there is sufficient placement capacity remains a priority for HEE in order to meet its statutory duties and ensure that an effective education and training system is in place.

[Dr Whitford]

Just to clarify, I was not referring to placements as students, which are absolutely vital; I was referring to the two foundation years that those individuals have to do afterwards. Otherwise, they simply cannot function as doctors.

[Edward Argar]

I am grateful to the hon. Lady for clarification, but she illustrates that placements, both as students and in the context she describes, are vital to enable students to understand and learn the reality and skill of their profession. It is also important that placements are rewarding for students.

HEE has successfully worked with education providers and placement providers to ensure there is sufficient placement capacity for the record number of nursing students that we now have. Such work includes payment of the education and training tariff, which pays a contribution to the costs of providing placements. The Government have also supported HEE through the provision of additional funding, enabling it to launch its clinical placement expansion programme. The programme has seen HEE commit £15 million to fund additional clinical placements across nursing, midwifery, allied health professionals and healthcare science in 2021-22. This funding will increase the number of placements offered to nursing, midwifery and AHP healthcare students from September 2021, which was last month, and it will enable HEE to deliver the future health and care workforce in sufficient numbers, and with the skills that the NHS needs.

Before I turn to innovation, I will address two points that were made by my right hon. Friend the Member for Kingswood and alluded to by the hon. Member for Nottingham North. First, the shadow minister touched on those who come from abroad via normal immigration routes or as refugees, the skills they have and how we need to make it easier for such people to utilise their skills and work in our NHS. He is absolutely right, and we continue to look at how we can make the process easier. We need to balance that with making sure that we can evidence and reference those skills for the safety of patients and those qualifications, but where that can be done and where those skills are commensurate, we need to make it as easy as possible for them to requalify or go through the necessary safety processes to be able to work in our NHS. The only other thing I would say is that we have to be very careful that any recruitment is ethical and that we are not denuding countries of the ability to utilise the skills of clinical professionals in rebuilding their own countries.

The second point made by my right hon. Friend the Member for Kingswood was about the challenges posed for maintaining quality, in terms of people going through relevant courses, and for the operation of the cap. I will not criticise any other Government Department, but he highlights the juxtaposition that often occurs between the Department for Education and the Department of Health and Social Care, or between other Departments where two Departments have an interest in the same policy but different incentives for their policy making. There will always have to be a financial test. There is always a limited budget, and my right hon. Friend highlighted how expensive some of the training courses are. However, it is right to expand the number of medical schools and training places, as we have done—he probably presided over it.

I remember going to the University of Lincoln, when I had just been appointed. Those I met were disappointed that I was not my right hon. Friend, but they were none the less very welcoming to me. The University of Lincoln works very closely with the University of Nottingham, which is in the constituency of the hon. Member for Nottingham North, in setting up a new medical school and drawing on the curriculum and expertise that was already in Nottingham. It is a great example. I very much hope that, when I am not in this Bill Committee, I might be able to go once again to visit the University of Lincoln and perhaps come and see the hon. Gentleman’s local medical school over in Nottingham.

Finally, on innovation, HEE currently works with universities, training providers and regulators on the curricula for the healthcare professions to ensure that they reflect the latest technological innovations. Although curricula are set, as I have said, at institution level, HEE can influence the content by representing the employer voice, to ensure that the training that individuals receive is relevant to what employers need.

In relation to consultation, HEE already works with universities, placement providers and others on the availability of placement providers to assess and ensure that there are the right number and types of placement. As I have mentioned, the number of placements has expanded. That is a direct result of the constructive dialogue and engagement that HEE has with placement providers. At ICS level, national guidance on the ICS people function set out the expectations.

I hope that I have set out that work on the areas highlighted by my right hon. Friend the Member for Kingswood is being taken forward—some of it was started by him a few years ago—under the existing statutory duty under section 1F of the NHS Act 2006. Therefore, at this point, we do not think that further specific duties are necessary, but I suspect that, in the further passage of this legislation, we may well return to the sort of themes that we have discussed today.

[Chris Skidmore]

As I said, I will not push the new clauses to a vote, but I will just reiterate that there clearly is a massive structural supply and demand imbalance. I do not believe that the status quo will be sustainable in the longer term. I do appreciate the Minister setting out the ecosystem as it exists, but I fear that that ecosystem, in the longer term, cannot keep up with the changing demands on the healthcare system and the expansion of the healthcare system thanks to the budgetary announcements today about the amount of money that is being spent. None of this will cut through effectively if we do not have the trained workforce in place to be able to deliver healthcare on the ground. Mention has been made of general practitioners and the shortfall that we are going to see as a result of the demographic and retirement bulge that is going through the system at the moment. These are problems coming down the track, and I would always recommend in policy, as in life, that if we see a problem and know that we are going to have to take a decision, it is better to take the decision sooner rather than later, because the costs will only be less now and greater later on.

I will not push these new clauses to a Division, but I have, Cassandra-like, sent out a warning cry of what will happen in the future if we do not act soon. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Ordered, That further consideration be now adjourned. —(Steve Double.)

Health and Care Bill (Twentieth sitting)

Edward Argar Excerpts

Committee stage
Thursday 28th October 2021 Public Bill Committees

[Alex Norris]

I do share that view, particularly around children. Our preference would be for them to never start. There should not be packages with cartoons and child-friendly descriptors to develop a market among children. I think there would be a high level of consensus on that.

In that spirit, new clause 32 addresses an incredible loophole, which I cannot believe anybody thinks is a good idea. If the Minister is not going to accept new clause 32, I hope he will say when the issue will be resolved. The idea that you cannot sell e-cigarettes to children but that you can give them out as free samples to under-18s is quite hard to understand. It is time for us to get hold of this simple loophole, which goes against the spirit of the legislation, which is designed to protect children against nicotine addiction. I hope we can get some clarity, either because the Minister accepts the new clause or gives us a clear picture that we will see action very soon.

On new clause 33, about flavoured tobacco products, it again feels like the market is not acting in the spirit of the laws that have been passed. Flavoured tobacco is designed to make products more appealing, especially to younger people. In May 2020, we banned the sale of tobacco with a characterising flavour such as vanilla, spices and menthol. However, companies have adapted to this legal change with new innovations that skirt the law and provide smoking experiences that replicate flavoured tobacco. I can go to supermarket websites and find “green” branded cigarettes being sold, with many reviews stating how similar the flavour is to menthol cigarettes. I do not think that is in the spirit of the law.

In the year from May 2020, Japan Tobacco made over £91 million in profits from menthol brands. Clearly, the law has not worked as we want it to. Moreover, between January 2020 and 2021, a survey of smokers showed that the smoking of menthol cigarettes has not declined, despite the apparent ban, so I do not think the law is working. This new clause would do a good job of closing that legal loophole. If the Minister is not minded to accept it, I would be keen to know what the Government intend to do instead, because I cannot believe that they want laws that they passed, in possession of full facts, to be worked around in that way.

I will take new clauses 34 to 37 as a group, because they create the same thing: a tobacco control fund, paid for by manufacturers, combined with the regulation of tobacco companies’ profits. As my hon. Friend the Member for City of Durham said, when the Government announced their smoke-free 2030 ambition, they promised to consider a US-style “polluter pays” levy on the manufacturers, and included an ultimatum for industry to make smoked tobacco obsolete by 2030. My hon. Friend’s APPG has published a very strong option for how to do that. Ministers could lift and shift that very happily and get on with this. There are real benefits to that.

Action on Smoking and Health do some wonderful work, and I am grateful for its support in my work. It estimates that a comprehensive national, regional and local tobacco control programme—in many ways, we have lost that in recent years—to deliver a smoke-free 2030 would cost the UK about £315 million. That would involve adding back lost services. ASH’s estimate for a levy, based on the model the APPG talks about, is £700 million. This could be a “polluter pays” model, and we would have plenty left over to overturn all those poor public health budget cut decisions taken over the last decade. If the spirit of yesterday’s Budget was to try to rewind and erase the lost decade that we have had in this country, this would be a really good place to do that, and I think that is a good deal.

Of course, the EU tobacco tax directive is no longer a blocking factor, so we have complete agency to act in this area and it is in the gift of the Government, so I am very interested to know how far along the Minister or his colleagues are in the consideration, as they said, of this matter, and when we will see some proposals. Similarly, when will we see another tobacco control plan? That is something that everybody, from local government, public services, the private sector, community and voluntary services and all of us in this place, can organise around. The 2030 goal is a common goal. Pretty much everything that we have said in the new clauses are things that we are of one mind on. We can do something really good for the health of the nation, and I hope to find the Minister in action mode on that.

I will finish by referencing new clause 38, also tabled by my hon. Friend the Member for City of Durham, because I do not want it to look like I have ducked the question. It is important that we actively look at that and consider the evidence. I am perhaps not ready to say that it should be in the Bill, but it should be part of an active conversation in this area and part of a tobacco control plan. I think the Minister may be in a similar place on that, because we know that it is an effective part of the armoury. There are loads of really great things to go at in this set of new clauses, and I hope that he feels the same way.

[The Minister for Health (Edward Argar)]

It is a pleasure, as ever, to serve under your chairmanship, Mr Bone. I am grateful to the hon. Member for City of Durham for giving us an opportunity to debate the new clauses. I had the privilege and pleasure, I think almost a year and a half or two years ago, when I was standing in for the Public Health Minister, of responding to a debate in the House on this subject—I think she was in Westminster Hall responding to another debate. I therefore had the pleasure of listening to hon. Members speaking about the work of the APPG, and this issue more broadly, on that occasion. It seems like an age ago. I suspect that it was only about a year ago, but that is what the last year and a half has done for many of us.

New clause 29 seeks to provide powers for the Secretary of State to impose a requirement for tobacco manufacturers to print health warnings on individual cigarettes and cigarette rolling papers. That requirement is intended to further strengthen the current public health messaging and encourage smokers to quit. The Government are sympathetic to the aims of the new clause. We strongly support measures to stop people smoking and to educate smokers of its dangers, as we have done through warnings on cigarette packs. However, we believe that we need to conduct some further research and build a more robust evidence base in support of such additional measures before introducing them. If evidence shows that that requirement would not be effective, there is a risk that the power would not be used. As hon. Members will be aware—the hon. Lady was right in the point that she made—health is a devolved matter. Therefore such a measure would need to be considered in partnership with the devolved Administrations.

We are currently in the process of developing our new tobacco control plan. When the hon. Lady winds up the debate on this group of new clauses, she may say, “All well and good, but we’ve been in that place for a while. When will I see it?” I would be surprised were she not to do so. We continue to work on the plan at pace. She will be aware that the events of the last year and a half have, in a number of areas, knocked the existing timelines for producing plans slightly sideways, but we continue to work actively on that. As part of the tobacco control plan that we are working on, we are exploring a broad range of new regulatory measures to support our ambition to be smoke free by 2030. We are reviewing this specific proposal as part of that work, in considering the options for a package of legislative measures.

New clause 30 seeks to provide a power for the Secretary of State to introduce a requirement for manufacturers to insert leaflets containing health information and information about smoking cessation services inside cigarette packaging. We believe that that power is not strictly necessary as the Department could legislate to do that already under the Children and Families Act 2014, as inserts could be required for public health messaging through amendments to the Standardised Packaging of Tobacco Products Regulations 2015. It is also important to note that we already have strong graphic images and warnings of the health harms of smoking on the outside of cigarette packs, and the NHS website provides advice for people seeking to quit smoking. That website address is required on packaging under the Tobacco and Related Products Regulations 2016.

The current regulations, the Standardised Packaging of Tobacco Products Regulations 2015, prohibit the use of inserts, as there was limited evidence during the development of those regulations that placing public health messaging inserts inside cigarette packets was more effective than the messaging on the outside of packs. A post-implementation review of SPOT—if I may refer to the regulations in that way to save a little time—is currently under way. It is seeking to assess whether the regulations have met their objectives, and will identify whether there is a need to strengthen them in any way or to revisit any aspect of them, such as the one that the hon. Member for Central Ayrshire mentions. We aim to publish the post-implementation review before the end of this year.

If we were to introduce inserts through regulations, we would need to conduct further research on that. We would need to establish the public health benefit, costs to businesses, impact on the environment from litter and practicalities around enforcement, and crucially build a robust evidence base in support of such measures and their efficacy, along with, obviously, public consultation on them. This is something that we will consider as part of the Smokefree 2030 regulatory plans, but we will wait and see what, in the next couple of months, the published post-implementation review says. Health, as I have mentioned, is devolved, so it is something on which we would need to work with our friends and partners in the Scottish Government and other devolved Administrations.

New clause 31 seeks to enable legislation that would make provision about the retail packaging and labelling of electronic cigarettes and other novel nicotine products. That would include requirements for health warnings and the prohibition of branding elements that are attractive to children. I pay tribute to the work that the shadow Minister, the hon. Member for Nottingham North, has done in this space. I know that this is not just an issue of shadow ministerial concern for him, but something in which he has taken an interest as an individual Member of Parliament, so I recognise his expertise and knowledge in this area.

We are currently undertaking a post-implementation review of the Tobacco and Related Products Regulations 2016 as well. The current regulations include requirements on the packaging and labelling of e-cigarettes, along with restrictions on marketing, and they prohibit advertising on mainstream media such as TV and radio for e-cigarettes. Again, we will publish that review this year.

We want to encourage smokers to quit smoking using nicotine replacement therapy and by switching to less harmful products such as e-cigarettes. I take the point made by the hon. Members for Nottingham North and for Central Ayrshire. I share the shadow Minister’s view that if there is a choice between a conventional cigarette and an e-cigarette, I would much prefer people to be smoking an e-cigarette, because it is less harmful. But I absolutely take the point made by the hon. Member for Central Ayrshire, who is, as we know, an eminent clinician, that even if it is less harmful, it is still harmful. The ideal would be that people use neither product, but if it is a choice between the two and a question of getting someone to change their habit, I would much prefer to see them using an e-cigarette than a conventional cigarette. I think that there is consensus on that point across the two Front Benches and, indeed, the SNP Front Bench.

However, we need to ensure that our regulatory framework continues to protect young people and non-smokers from using e-cigarettes. That is the point about the degree of harm: although less, it is still there. Regular youth use of e-cigarettes does, on current evidence, remain very low, at about 2% of 11 to 15-year olds. That figure dates back to 2018, so it is slightly dated, but it gives us a useful data point. However, I do not believe that that should induce complacency in any of us. We need to continue looking at the matter very carefully.

Again, the Government are sympathetic to the aims of the new clause and strongly support measures to protect young people. Again, I point to the timing and the need for the post-implementation reviews and for further research and consideration in the light of those when they come forward in the next few months.

New clause 32 seeks to give powers to the Secretary of State to make regulations to prohibit the free distribution or sale of any nicotine products to anyone under 18, with the exception of the sale or distribution of nicotine replacement therapy licensed for use by under-18s. There is already in place, as the shadow Minister alluded to, legislation that prohibits the sale of tobacco and e-cigarettes to under-18s; that includes proxy sales. There are also existing powers in the Children and Families Act 2014 to extend the age-of-sale restrictions to include any nicotine products such as nicotine pouches. Therefore, as he said, the new clause is not needed in relation to sales.

New clause 32 seeks to further protect young people from the distribution of free nicotine products to under-18s, but again, we do not have a firm or robust evidence base at present to suggest that that is a widespread problem. The recent post-implementation review of the Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015, published earlier this year, did not raise that as a concern. I suspect the hon. Member for Nottingham North will say, “Why not get ahead of the game, anyway, with a pragmatic measure?”, and I have some sympathy with that point.

[Dr Whitford]

With regard to the free provision of e-cigarettes or nicotine substitutes, the provision that could be amended quite simply by referring to where they are being provided through smoking cessation services, as opposed to where someone is buying them and then dishing them out, or is trying to use them to recruit young smokers. Accessing them commercially is quite different from being given them as part of a public health smoking cessation project.

[Edward Argar]

That is the point I was seeking to make. Smoking cessation services would still continue as normal. The argument from the shadow Minister, the hon. Member for Nottingham North—this is where I might diverge from him, not necessarily in intent but in the timing—is that even if we cannot see this as a problem at the moment, we should act now on the basis of principle. His argument is: “Even if it is not happening, why would we let it happen? We should just close the loophole”—I paraphrase, but I think that is his argument. My counter-argument is that it would be appropriate to look at this, but to conduct further research to develop the evidence base further. Beyond that we have—from 2018, for example—more work to do on vaping first. That is essentially the point of difference.

The shadow Minister might say, “I accept that, but I still think we should do it now.” That is ultimately a difference in positions, not a point of principle about needing to look at this. It is about whether to act now or to do further research. That is the only difference, and the research is needed to evaluate the detailed benefits of the new clause. Also, there is the scale of the issue that we might be tackling. I know that the hon. Gentleman is fond of an impact assessment of the costs as well as the benefits. He rightly, as does his colleague on the Front Bench, the hon. Member for Ellesmere Port and Neston, and you on occasions, Mr Bone—

[The Chair]

Order. When I sit in this Chair, I have no views on anything.

[Edward Argar]

Except perhaps the proper conduct of proceedings.

Moving on swiftly, new clause 33 seeks to change the current flavour ban, which would of course be the context in which I was referring to proper conduct proceedings requiring proper documents to be published. The new clause seeks to change the current flavour ban, which is based on characterising flavours in cigarettes and hand-rolling tobacco, to one based on flavours for all tobacco products, as well as accessories used to flavour tobacco products.

The Government are committed to protecting the population from the harms of tobacco. Tobacco for smoking that has a detectable flavour—for example, menthol—has been changed to be more appealing to young people and easier to inhale. That can often result in a lifetime of tobacco addiction. Through the Tobacco and Related Products Regulations 2016, we have already banned characterising flavours in cigarettes and hand-rolled tobaccos. That means flavours that are noticeable before or during smoking of the product.

Again, the Government are sympathetic to the aims of the new clause, which would prohibit flavours in all tobacco products and accessories, but it is not clear how a ban on flavours would be enforced in practice, as it would include a ban on flavours that do not give a noticeable flavour to the product. Furthermore, it is not clear how this may be a better option than the current regulations, although the hon. Member for City of Durham might wish to address that point in her winding-up speech. As ever, I will reflect carefully on what she says and then discuss it with my colleague, the Public Health Minister. We are currently in the process of developing our new tobacco control plan. We are exploring, as I have said, a broad range of additional regulatory measures to support our Smokefree 2030 ambition.

New clauses 34 to 37—which, with your permission, Mr Bone, I will take in one bundle—seek to provide the Secretary of State with a power to enable the introduction of a scheme on tobacco manufacturers, limiting profitability by regulating prices. Tobacco taxation matters are, it will not surprise hon. Members to hear, a matter for Her Majesty’s Treasury. Although earlier this week I found myself answering an urgent question relating to matters pertinent to Her Majesty’s Treasury, I will not stray into its territory, beyond saying that reducing the affordability of tobacco is one of the most effective measures to trigger smoking cessation. Tax increases are particularly effective among a range of groups of smokers, and therefore this is a key tool in helping to address health disparities and health outcomes associated with smoking.

As part of the annual Budget process, the Treasury will continue the policy of using tax to raise revenues and encourage cessation through high prices on tobacco products. The tobacco industry is already required to make a contribution to public finances, through tobacco duty, VAT and corporation tax. While the Government are open to the idea of the tobacco industry providing additional funds beyond taxation, further consideration of the potential options for and impacts of a scheme, including a robust impact assessment, would be needed. We would also need to consider how such a scheme would be implemented and how it would impact the taxation requirements currently placed on the industry. Such a scheme would likely take a number of years to develop and deliver to ensure that it was effective and robust.

The Department will continue to work with Her Majesty’s Treasury to assess the most effective regulatory means of making the industry pay for the harm that its products cause to our population, to support the Government’s Smokefree 2030 ambition, including exploring a potential future levy. Our ongoing work has contributed to smoking rates falling to their lowest on record, as the hon. Member for Nottingham North said, but there is still much more work to be done to protect people from the harms of tobacco.

Finally, new clause 38 would introduce a power to introduce legislation that would increase the age of sale on tobacco from 18 to 21. We have successfully made many regulatory reforms over the past two decades, and the UK is a global leader in tobacco control. Measures include raising the age of sale from 16 to 18, a tobacco display ban, standardised packaging and a ban on smoking in cars with children, all strengthening the barrier between young people and tobacco products.

The Government remain committed to our ambition to be smoke free by 2030 and to continue to protect the population and future generations from the harms of tobacco. However, the Government would like to review the evidence base of increasing the age of sale to 21 in more detail—I am probably in the same place on that issue as the shadow Minister. We would like to further assess its full impact on public health, the costs of implementation and how it would be enforced by trading standards. We have not consulted publicly on raising the age of sale to 21 to assess public opinion and consider whether it is the right regulatory measure to take forward to protect future generations. I know it is an issue that the APPG and the Royal College of Physicians have recommended we should consider.

We are currently in the process of developing our new tobacco control plan. We will review all the proposals in that context, as well as the well-researched reports that the APPG has put forward. I suspect the hon. Member for City of Durham will still want to push us on a few of these points—if not disagreeing with the sentiment, then possibly with the speed or the timescale. I will listen very carefully to what she says. I encourage her not to press the new clauses, but I suspect I may be out of luck.

[Mary Kelly Foy]

I welcome the Government’s commitment to publishing the plan and the consideration of some of the recommendations. I hope we will see that very soon. I will not press the majority of the new clauses, but new clauses 31 and 32 are aimed at children and child public health. I do not think we can wait.

We already have examples of vaping companies handing out free vaping products to 16 and 17-year-olds. There is an example of a 17-year-old woman on a market stall. A third party company came along and offered her vaping products in return for her email address, which was suspicious enough anyway. They do not tell the young person that the products have nicotine in them. There are already such examples.

I went online this morning to see whether I could purchase vaping products. The first one that came up was called the Breakfast Club, which tastes like marshmallow-flavoured breakfast charms. It is a shot of nicotine that goes into the refill of a vaping product. The refill is 15 ml, with a space left at the top for the shot. The Breakfast Club “charms”, which come in pink and yellow, are aimed at young people. When I went to buy some, I was asked if I was over 18; I would just have to click “Yes” for it to be delivered to my door tomorrow.

There is evidence that the longer we wait, the more young people will be hooked on nicotine through vaping products. I do not think we need further evidence. How many more young people will be addicted by the time the plan is introduced? I beg to ask leave to withdraw the motion, but I will divide the Committee on new clauses 31 and 32.

Clause, by leave, withdrawn.

New Clause 31

Packaging and labelling of nicotine products

“The Secretary of State may by regulations make provision about the retail packaging and labelling of electronic cigarettes and other novel nicotine products including requirements for health warnings and prohibition of branding elements attractive to children.”—(Mary Kelly Foy.)

This new clause would give powers to the Secretary of State to prohibit branding on e-cigarette packaging which is appealing to children.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Justin Madders]

It is a pleasure to see you in the Chair this morning, Mr Bone.

The NHS needs to have a core duty to have regard to carers and to promote their health and wellbeing. New clause 39 would put on a statutory footing the requirement for integrated care boards to collect information on carers and their families, and then to use it to develop strategies to promote their health and wellbeing. This is an attempt to ensure a strategic approach to the need for the NHS to demonstrate that it has considered carers in its policies and practice. In other words, all parts of the NHS would have to think carer.

The new clause would avoid situations arising in which carers had been omitted from consideration, for instance in hospital discharges, by ensuring proper care-proofing throughout the entire NHS. We believe that could help integration. Social care sees carers as an equal partner in care and very much part of the system, but sometimes there is a less favourable experience in the health service.

There would also be benefits to the NHS overall, through improved health and wellbeing, improved satisfaction with services, reduced admissions and readmissions, reduced crisis and reduced need. The new clause would avoid the significant omission of carers in recent guidance and improve the general approach to carers. It would also be good for NHS staff, one in three of whom couple working in the NHS with unpaid caring for family members and friends. Research shows increased job satisfaction when employers recognise carers, and the Minister will know how important it is to improve retention rates.

There is definitely an issue here. Surveys have consistently shown a problem, with 55% of carers saying that they agree or strongly agree with the statement, “I feel invisible to the NHS”. They are often providing more than 50 hours of care a week, which is more than a full-time job, and are essential to the NHS, yet that goes unrecognised. There are a range of other statistics on how carers feel about the recognition of their role; 56% agree or agree strongly with the statement, “Health services and professionals do not share information with me, even if it is essential for me to be able to care”. More than half are not involved in decisions on hospital discharge, two thirds of carers do not feel listened to by healthcare professionals about their willingness and ability to care, and a majority are not given enough information and advice when a person they care for is discharged from hospital to care for them safely. Most carers—60%—say that at the point of hospital discharge, they receive insufficient support to protect the health and wellbeing of the patient, or their own health.

Under the Health and Social Care Act 2012, carers have parity of esteem, and an equal right to receive information and advice and to have their needs considered. The Government accept that that is right for social care, so we think it should apply equally in healthcare. The NHS has very few responsibilities towards carers when compared with the social care sector. Carers were left out of the original Joint Committee on Vaccination and Immunisation decision on vaccination, even though they were in the green book. They were completely left out of the White Paper that underpinned this Bill; they were left out of two versions of the “Discharge to Assess” guidance; and they barely get a mention in integrated care partnership guidance—there is one reference in there to unpaid carers.

Several organisations are keen to support the approach set out in the new clause, including the Patients Association and the MS Society. The new clause would serve as an important marker in laying out the importance of carers, and it would help us work towards proper strategies to ensure that their value is recognised and that they are supported.

Turning to new clause 40, carers are mentioned in clauses 5 and 19, but are not defined anywhere. They could in theory include carers of any age. The new clause seeks to ensure absolute clarity about who the term “carer” refers to: it would refer to unpaid carers only—not volunteers or paid staff, but friends and family, commonly, who provide care. This keeps the definition consistent with other legislation, and includes parents of disabled children and, most importantly, young carers, who are particularly vulnerable to being forgotten. Young carers face more health inequalities than other children of the same age, and that persists into young adulthood. Every GP patient survey has shown that it is essential that it is made clear and explicit in legislation that provisions on carers include young carers.

In conclusion, we want to acknowledge the vital contribution that carers make, which can be quantified as running into billions of pounds. The NHS could not function without the daily support of unpaid carers, and during the pandemic the extra caring responsibilities that carers took on stopped the NHS being completely overwhelmed. These new clauses ensure carers’ needs will be at the heart of NHS decision making and polices. That is why we hope the Minister is sympathetic to them.

[Edward Argar]

New clauses 39 and 40 focus on carers. First, I join the shadow Minister, as I suspect all hon. Members wish to, in recognising and paying tribute to the enormous amount of work that carers, both formal and informal, do. We want to strengthen the system by which carers are supported, and ensure that those receiving care have choice and control over how they access services.

New clause 39 would create an obligation on integrated care boards to collect information, and understand and respond to the needs of carers with regard to their health and wellbeing. The Bill provides an opportunity to ensure the views of carers are properly embedded in integrated care boards. The Bill confers a duty on integrated care boards to promote the involvement of carers, along with those who access care and support, in decisions relating to the prevention, diagnosis and treatment of illness, and care. There are equivalent provisions for NHS England-commissioned services.

Furthermore, the joint strategic needs assessment, prepared by health and wellbeing boards, will continue to have to consider the needs of carers, and that will shape the strategy developed by the integrated care partnership and the plans of the ICB. That means the services commissioned through these routes in the area where a carer lives will have considered the impact on carers in that community. Carers UK has welcomed the clauses for recognising

“the crucial role carers play day in, day out supporting their relatives’ health”,

and it says the clauses

“give carers more of the visibility they need within health legislation.”

[Dr Whitford]

Does the Minister recognise the difficulty in getting unpaid carers to recognise that they are unpaid carers? Particularly during covid, couples may have grown into a caring role without ever thinking of themselves as carers, and therefore they do not seek financial or other support. We need a campaign to try and get people to recognise that they are carers. A project that I was involved in when I was back in the NHS in the first wave used the community pharmacy system to interact with carers who were collecting medicines, and helped guide them to the available support.

[Edward Argar]

I entirely agree with the hon. Lady. There is a huge number of unpaid carers who we know about, and who recognise themselves as carers, but there will be a huge number who, as she says, do not see themselves in that way. They see caring for a loved one as part of their normal life, and as what they do; they do not recognise that they are providing care.

There is also a large, often unidentified, number of child carers. They care for their parents, grandparents and others, but they will not think of it in that way. They just think they are doing their bit to look after mum or dad, or granny or grandad. The hon. Lady is right to highlight the need for all of us—both in government and other Members—to make it as clear as possible that these people are carers and should be able to access support and help. There is support and help available, but people need to understand that they are in that category and are entitled to it. That is a long answer to basically say that I entirely agree with the hon. Lady.

We are not convinced that the provisions of new clause 39 are appropriate for the ICB, as a similar duty to that in the new clause is already held by and imposed on local authorities, so it risks causing duplication. The local authority will be part of the ICB and of the ICP, so we feel that the issue is captured.

Carers already have a legal right to an assessment of their needs from their local authority. Local authorities have a legal duty to meet needs identified through a carer’s assessment where the carer is deemed eligible. In 2019-20—the latest figures I have to hand—376,000 unpaid carers in England were assessed, reviewed, and/or supported. However, the number may well be a lot higher than that figure, which goes to the point made by the hon. Member for Central Ayrshire.

We continue to work closely with stakeholders, care organisations and the wider sector to support carers. We will work with care users, providers and other partners to co-develop more detail on our plans for the reform of adult social care. We will publish further detail of our plans for reform in a White Paper later this year, building of course on the strong foundations of integration we are setting in this legislation. The shadow Minister, the hon. Member for Ellesmere Port and Neston, would have been disappointed or concerned about me if I had not said that, and would have wondered what was going on.

New clause 40 introduces a definition of carer that includes—this goes to the point to which I have just responded—young carers, parent carers and adult carers. It seeks to bring clarity and to ensure that all carers, regardless of their age or their relationship with the person they care for, benefit from the measures in the Bill related to carers. The circumstances and needs of every unpaid carer are unique. Unpaid carers make a vital contribution to the lives of those they care for, and I know that every member of this Committee would want to put on record a tribute to them. It is important that we continue to work to understand carers’ needs and how to best support them, while reflecting the diversity of carers.

I have already discussed the measures in the Bill designed to promote the involvement of carers. “Carers” in this context should include anyone, child or adult, who cares, unpaid, for a friend or family member who, due to a lifelong condition, frailty, illness, disability, serious injury, mental health condition or even addiction, cannot cope without their support. In seeking clarity and inclusion, it is important that we do not inadvertently exclude groups of carers. The legislation as drafted is based on an everyday use of the term “carer”, and this allows for flexibility and the inclusion of all who provide unpaid care, in any shape or form, to a loved one or friend.

I appreciate, and to a large extent share, the shadow Minister’s intention of strengthening the legislation and seeking to bring clarity, so that those who are entitled to support know it, and can claim what they are entitled to. I want to reassure members of the Committee that we have today heard the concerns expressed about carers. I will take that away and carefully consider the issues, and see if we can continue to address them through the wider work of the Department on carers, and our ongoing discussions with organisations, many of which we deal with as constituency MPs, week in and week out, on their work in our constituencies.

For these reasons, I encourage the hon. Member for Ellesmere Port and Neston to consider not pressing his new clauses to a Division, but I look forward to hearing from him.

[Mary Kelly Foy]

For those who do not know, I should say that I was a carer for my severely disabled daughter for 27 years. Maria died six years ago; she suffered with cerebral palsy. I was very fortunate to be in a local authority that recognised the need for respite for carers. I was lucky enough to have a very generous package of six weeks, and that allowed me to engage with public life, have a social life and just recharge my batteries. However, other local authorities do not give such generous packages; it is a postcode lottery. When carers can no longer look after their loved one and that person has to be placed in social care, the cost to the public purse is huge.

On young carers, the issue is not just the caring role of young children. My children were classed as young carers, and the package they had was to enable them to enjoy social activities with other young people. They felt very left out of normal activities, because I was spending most of my time looking after Maria. It is very important that carers recognise that there is help out there, and help has to be consistent. As we know, local authorities have had their budgets cut massively, so what was once perhaps a gold star service for carers is down to a much lesser service.

A lot of carers I knew did not think they were carers and did not really want anything from the state. They said, “We’re just doing it because this is our loved one, and this is what we need to do.” However, the needs, health and wellbeing of unpaid carers are so important if we want them to continue doing the fantastic job that they do.

--- Later in debate ---

[Justin Madders]

I beg to move, That the clause be read a Second time.

Continuing healthcare ought to be something that we do not need to think about in a truly integrated care system. Hopefully, when the next White Paper comes along, it will address some of our issues with continuing healthcare—no doubt the Minister will tell us whether that is correct.

We all know that continuing healthcare is a huge source of contention between the NHS and local authorities. Arguing about who pays for what is not productive or efficient, and of course it is always the patient who is stuck in the middle. I have numerous examples, as I am sure other hon. Members do, of constituents who have been wrangling, for years after the care was provided, about who is picking up the bill for what. It seems a highly bureaucratic, unfair and at times deeply distressing experience for the families involved.

It has been clear for decades that we are moving into a world where many people will have multiple long-term conditions, with both health and social care needs. The new clause was tabled with that in mind, and with the assistance of the Motor Neurone Disease Association. As one would expect, those with MND often fall into the CHC web. I cannot allow a reference to MND to pass without paying tribute to Rob Burrow and the many other magnificent campaigners who have put the spotlight on the challenges that those diagnosed with MND face. I had the privilege of knowing Rob when he was a professional sportsman, and he has taken equal vigour, determination and courage into this field. He has been an absolute star in campaigning on these issues.

Under the current complex and poorly understood rules, some qualify for free social care—in other words, the NHS pays for it, rather than the local authority—but it is for adults only, and in order to qualify there has to be an assessment by professionals of all a person’s needs. If the needs change, the eligibility can change, and of course there are endless arguments about what the needs are at any particular time. That demonstrates why the integration of care is very important and will probably be more efficient in the long run. Those in receipt of, or possibly eligible for, continuing healthcare should be fully involved in the assessment process and kept informed. Carers, who we have already discussed, and family members should also be consulted. There are the personal experience aspects of the process to look at, as well as the arguments about who pays for what.

The new clause accepts that we cannot fix all these things overnight. It suggests that in some cases someone should be responsible for ensuring that the system works properly in the interests of those with continuing needs. This is all part of the wider application of proper openness, and of transparency being the strongest and best form of good governance.

Clinical commissioning groups have a legal responsibility to meet the assessed health and care needs of every person in their area who is found eligible for continuing healthcare. Their responsibilities are laid out in the national framework and supporting guidance, but I am afraid there is extensive evidence that they do not always fulfil those responsibilities, and that the monitoring of delivery of continuing healthcare is inadequate. In 2018, a Public Accounts Committee inquiry on continuing healthcare found:

“NHS England is not adequately carrying out its responsibility to ensure CCGs are complying with the legal requirement to provide CHC to those that are eligible.”

It also found that

“there are limited assurance processes in place to ensure that eligibility decisions are consistent”,

and that existing measures

“may not go far enough to address the variation in performance”

across CCGs. These findings were echoed in a November 2020 report by the Parliamentary and Health Services Ombudsman, which warned that

“people continue to be seriously let down by failings in the way…healthcare is handled by CCGs.”

Patient organisations, represented collectively through the Continuing Healthcare Alliance, have reported a wide range of significant problems in CHC delivery, including CCGs not adhering to the national framework or associated guidance for assessment and care delivery, leading to significant inconsistency and variation across the country. Not enough data is collected about who receives continuing healthcare and multidisciplinary teams are frequently not used to conduct assessments, which leads to them sometimes being carried out by individuals with no knowledge of that person’s history or their medical condition. Care packages are frequently inadequate to assess needs, particularly when individuals require complex care or specialist care input. There is no effective system or process in place to monitor the quality of delivery across the country, to address that unwarranted variation and to take action when commissioners fail to live up to their legal responsibilities in respect of CHC.

We are seeking to address some of those issues through the new clause. We have what we would describe as an accountability gap, where there is no effective mechanism to monitor delivery of CHC and hold to account those who are meant to be responsible for delivering it. It goes without saying that people in receipt of CHC are sometimes the most vulnerable in the population, by definition, and it is surely unacceptable that a group of individuals continue to be let down by a failing system with no mechanism to identify and address those failings.

We hope that the new clause will address that issue and support better patient experience and outcomes with CHC. I do not intend to press it to a vote, but I would appreciate some responses from the Minister. The issue is not going to go away, so I would like his thoughts about the future of the whole idea of continuing healthcare and how we best monitor and ensure consistency and compliance throughout the country. Any thoughts on how we can make the system better would be most welcome.

[Edward Argar]

I am grateful to the hon. Gentleman and join him in paying tribute to the work of the MND Association and other campaigners who do so much to bring these issues to our attention, both as individual MPs and in debates such as this.

The new clause would impose a new duty on the Care Quality Commission to conduct a review and assess the performance of NHS continuing healthcare, or CHC, by integrated care systems each year. It would also require the CQC to publish a report of its assessment. Again, as with many of the hon. Gentleman’s proposals, I understand and have a degree of sympathy with the intention behind what he seeks to do with the new clause. It is right that clinical commissioning groups, as they are currently called, are held accountable for NHS continuing healthcare within their local health and social care economy. That will also be the case with the national move to integrated care boards, where the board will discharge those duties and be accountable for NHS continuing healthcare as part of its NHS commissioning responsibilities.

I am grateful to the hon. Gentleman for suggesting that the new clause is, in essence, a probing amendment to highlight the issue, because I am not convinced that it is necessarily the most effective way of doing that, although it certainly airs the issue in Committee. I reassure him that the Government share his view about the importance of ensuring adequate oversight in how health and social care services are delivered, including in this space.

First, by way of some reassurance, NHS England has a core role in overseeing ICBs in the exercise of their functions. The Bill requires NHS England to assess the performance of each ICB every year and ICBs are required to provide NHS England with their annual report, which will include oversight of NHS commissioning and thus, in that context, continuing healthcare.

In addition, as Members will be aware, we have debated an amendment to give the CQC a duty to assess integrated care systems at a system level. The intention is for these reviews to provide the public and the system with independent assurance of the work within the ICS and, in particular, the effectiveness of joined-up working and integration. They, too, will be a valuable way to improve the services provided. The scope would include NHS commissioning and NHS continuing healthcare. We also intend for the CQC to work closely with NHS England, which will be conducting its own assessment of integrated care boards. We therefore think that those are the most effective vehicles for that oversight.

However, I share the hon. Gentleman’s view and suspect that we will all, possibly with a degree of regularity, have constituency cases about continuing healthcare payments and whether the system is working efficiently or otherwise. Local healthcare systems must continue to focus on this and seek to do what they can to make the system as smooth and efficient as possible. We believe that the mechanisms in the Bill are an effective way of doing that, but that in no way implies that individual systems should stop looking at ways of continuing to improve that provision and the mechanism by which continuing healthcare funding is delivered to individuals.

[Justin Madders]

I am grateful to the Minister for his comments—it seems that the message has been received. Obviously, if the ambitions in the Bill to improve integration, collaboration and joint working are to be delivered, this will be one area where we would expect to see significant improvements. I have no doubt that we will return to this in future, but I beg to ask leave the withdraw the motion.

Clause, by leave, withdrawn.

New Clause 42

Alcohol product labelling

“The Secretary of State must by regulations make provision to ensure alcoholic drinks, as defined by the Department for Health and Social Care’s Low Alcohol Descriptors Guidance, published in 2018, or in future versions of that guidance, display—

(a) the Chief Medical Officers’ low risk drinking guidelines,

(b) a warning that is intended to inform the public of the danger of alcohol consumption,

(c) a warning that is intended to inform the public of the danger of alcohol consumption when pregnant,

(d) a warning that is intended to inform the public of the direct link between alcohol and cancer,

(e) a full list of ingredients and nutritional information.”—(Alex Norris.)

This new clause requires the Secretary of State to introduce secondary legislation on alcohol product labelling.

Brought up, and read the First time.

--- Later in debate ---

[Alex Norris]

I am grateful for that intervention. I would certainly not talk down including the very broad messages that the hon. Lady mentions; I know that in an overwhelming number of cases that is available, but, as she says, that is not enough. People are conscious of that message and we should keep reinforcing it, but the jump-off point is, “So what? What am I going to do differently, or what do I need to understand differently?” At the moment, we are not helping them in that process.

This new clause, mirroring clause 127, asks the Secretary of State to introduce secondary legislation to compel the inclusion of this sort of information on products. It is a relatively modest ask, but it promotes informed choice, which in this area would be a very good thing. I do not think we should miss the opportunity to put it in the Bill.

[Edward Argar]

As has been set out, this new clause would make provision to ensure that alcoholic drinks display the chief medical officer’s low-risk drinking guidelines, a warning intended to inform the public of the danger of alcohol consumption, a warning intended to inform the public of the danger of alcohol consumption particularly when pregnant, a warning intended to inform the public of the direct link between alcohol and cancer, and a full list of ingredients and nutritional information.

First, let me say that alcohol labelling is an important part of the UK Government’s overall work on reducing alcohol harm. We believe that people have a right to accurate information and clear advice about alcohol and its health risks to enable them to make informed choices for themselves about their drinking. However, we feel that the new clause is unnecessary, because the Government are about to launch a consultation on these matters.

As part of our tackling obesity strategy, published in July last year, the Government committed to consulting on whether mandatory calorie labelling should be introduced on all pre-packaged alcohol, as well as alcoholic drinks sold in the out-of-home sector. The Government have worked with the alcohol industry to ensure that labels on pre-packaged alcohol reflect the UK chief medical officer’s low-risk drinking guidelines, and the industry has made some progress towards achieving that.

To make further progress, as part of our public consultation on alcohol calorie labelling we will also seek views on whether provision of the chief medical officer’s low-risk drinking guidelines, which include the various specific warnings that the hon. Gentleman mentioned, such as drinking in pregnancy and the drink-drive warning, should be mandatory or should continue on a voluntary basis. Respondents to the consultation will be able to provide suggestions for additional labelling requirements that they would like the Government to consider, such as nutritional information. As I said, that consultation will be launched shortly.

Clause 127 confers a power on the Secretary of State in England, and on Ministers in the devolved Administrations in Scotland and Wales, to make improvements to and amend or repeal articles of European Union Regulation 1169/2011. This EU regulation currently prohibits mandatory calorie labelling on pre-packaged alcohol that is 1.2% alcohol by volume and above. The passage of this legislation will therefore enable Governments to introduce changes such as mandatory calorie labelling on pre-packaged alcohol labels through regulations.

If a decision is made to mandate those labelling requirements following the consultation, the Bill will support the Government in being able to make the necessary changes through a new power in the Food Safety Act 1990. Consistent with the Government’s obligation to consult on matters concerning food law, before any regulations are made, a consultation with interested stakeholders must take place. Therefore, as there is a statutory duty to consult on introducing mandatory labelling requirements and as work on improving alcohol labelling is under way, we do not believe that a separate clause in the Bill is necessary at this time. I encourage the shadow Minister to be reassured by what I have said and to consider not pressing his new clause to a vote.

[Alex Norris]

I am grateful to the Minister for his response. Any measure, as with that in the new clause moved by my hon. Friend the Member for City of Durham, again relies on us waiting for consultation. It feels like an awful lot of consultation, which is of course an important part of doing the process right, but we should never confuse it with action. We have spent an awful lot of time in this space, and it feels as if there is a danger that we are into soft-pedalling territory, rather than action territory. Nevertheless, I heard what the Minister said, that it is an active process, so on that basis I will not press for a Division. We will reflect on the issue on the Labour Benches but, widely among those interested in the area, there is a growing sense of impatience. I hope that us giving the Minister and the Government space to continue the process is not confused with us being content that we are going quickly enough—I feel strongly that we are not. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 43

Annual report on alcohol treatment services: assessment of outcomes

“(1) The Secretary of State must lay before each House of Parliament at the start of each financial year a report on—

(a) the ways in which alcohol treatment providers have been supported in tackling excess mortality, alcohol related hospital admissions, and the burden of disease resulting from alcohol consumption, and

(b) the number of people identified as requiring support who are receiving treatment.

(2) Alongside the publication of the report, the Secretary of State must publish an assessment of the impact of the level of funding for alcohol treatment providers on their ability to deliver a high-quality service that enables patient choice.”—(Alex Norris.)

This new clause would require the Secretary of State for Health and Social Care to make an annual statement on how the funding received by alcohol treatment providers has supported their work to improve treatment and reduce harm.

Brought up, and read the First time.

[Alex Norris]

I beg to move, That the clause be read a Second time.

The new clause would put a duty on the Secretary of State to make an annual statement on the spend on, and impact of, alcohol treatment services. Each day in the UK, 70 people die of alcohol-related causes. Alcohol is linked to 200 different diseases and injuries and costs the NHS £3.5 billion each year. Good alcohol treatment is essential to support those with alcohol dependence towards recovery. That is important for individuals and for the collective, because it reduces emergency services call-outs, unnecessary hospital admissions and avoidable deaths.

Despite the importance of treatment, even going into the pandemic, only one in five dependent drinkers were believed to be in treatment—that is 80% lacking healthcare. The incomprehensible and frustrating picture in this country in recent years, between 2016 and 2018, is that more than two thirds of local authorities in England cut their alcohol-treatment budgets, and in 17 of them those cuts were greater than 50%.

Having been a local councillor in that period, responsible for public health in my community, I know that no colleague did that because they thought it was the right thing to do for their community; they did it because the public health grant in this country has been run down over the past decade, which has been an absolute tragedy. Those are the sorts of services that we have lost.

A very visible example comes from St Mungo’s—we all know its wonderful work—which estimates that funding cuts have meant that 12,000 fewer rough sleepers accessed support in 2018-19 than would have done had funding remained at 2010 levels. The covid pandemic has only worsened the situation, leading to significant and sustained increases in the rate of unplanned admissions for alcoholic liver disease. This issue is very important now, in the very immediate term. We need to act.

Owing to resource cuts, however, many alcohol treatment providers have been forced to reduce their offer. A lack of outreach resources leads to people with some of the most complex needs missing out on support, while the reduction in capacity means that many of those at the lower levels, where an earlier intervention would be very impactful, miss out as well. Those with greater dependency are not getting specialised treatment or, in some cases, are not getting any treatment at all.

I strongly believe that the Bill needs to address the importance of alcohol treatment in terms of its funding and impact. Requiring the Secretary of State to report to Parliament on the ways in which alcohol treatment services have been supported and funded, and on the number of people requiring treatment and how that need is being met, will keep the issue at the forefront.

The Government’s own alcohol strategy states that alcohol treatment services

“offer the most immediate opportunity to reduce alcohol-related admissions and to reduce NHS costs.”

We also know that for every £1 invested in alcohol treatment £3 is yielded in return, rising to £26 over 10 years. Recovery also yields powerful dividends for families and communities affected by addiction, but at the moment we are going the wrong way in terms of our commitment to this issue. What I am asking for in the new clause, and I think it is a relatively modest ask, is for the Secretary of State to have on an annual basis an honest and candid assessment of the situation in this country, and then to account for the activity that is being taken to meet the need. It would be a very powerful statement that the Secretary of State and the Department have a grip of the issue and are committed to it, so I hope to find the Minister in listening mode.

[Edward Argar]

As ever, I am grateful to the shadow Minister for his exposition of the new clause, which would introduce a duty on the Secretary of State for Health and Social Care to publish an annual statement on how the funding received by alcohol treatment providers has supported their work to improve treatment and reduce harm. It would also introduce a duty on the Secretary of State to publish an assessment of the impact of the level of funding for alcohol treatment providers on their ability to deliver a high-quality service that enables patient choice. I join the shadow Minister in paying tribute to St Mungo’s for the work that it does, which I think we would all recognise across the House.

We do not think that a new reporting requirement introduced by the new clause is necessary as significant work is already under way in this area. Outcomes for local authority-funded alcohol treatment services are already published via the Office for Health Improvement and Disparities’ national drug treatment monitoring system. They are monthly and quarterly reports provided at a local authority level, and annual reports at a national level. The Office for Health Improvement and Disparities also publishes annual data on estimated numbers of alcohol dependent adults in each local authority in England. Health commissioners can use that resource to estimate the number of adults in their area who need specialist treatment, supporting them to appropriately plan and improve alcohol treatment services.

The Office for Health Improvement and Disparities provides a number of data tools to support local areas to compare their performance against that of other areas, and against national performance. Those tools include the public health outcomes framework, local alcohol profiles for England, and the spend and outcomes tool. With respect to spending, local authorities are currently required to report on their spend on alcohol harm prevention and alcohol treatment on an annual basis to the Department for Levelling Up, Housing and Communities. Part 2 of Dame Carol Black’s independent review of drugs was published in July 2021 and the Government, in their initial response, published on 27 July 2021, agreed to carry forward its recommendations and publish a new drugs strategy later this year.

The review recommended increased transparency and accountability from local authorities on how funding is spent. Although the subject of the review was drugs, the implementation of that recommendation will apply to both drug and alcohol treatment through mechanisms such as an improved commissioning standard, which is currently in development. I therefore encourage the shadow Minister not to press the new clause to a Division.

[Alex Norris]

I cannot quite accept that answer from the Minister. I understand the significant work that he talks about, and the different places where data is available. Those things tell us what is going on; they do not tell us why, and what we intend to do about it as a country. As a result, I do not think that is delivering for us, and we see that in the very difficult outcomes. On that basis, I am afraid I will have to press the new clause to a Division.

Question put, That the clause be read a Second time.

Health and Care Bill (Twenty First sitting)

Edward Argar Excerpts

Committee stage
Thursday 28th October 2021 Public Bill Committees

[Alex Norris (Nottingham North) (Lab/Co-op)]

I beg to move, That the clause be read a Second time.

It is a pleasure to resume our consideration with you in the Chair, Ms Elliott. The new clause is in my name and those of my colleagues. If we think about the pandemic and the last 18 months, we will have various views on all sorts of things that have gone on during that period, but I think that one thing that we would be of one mind on is how well our nation’s directors of public health have performed in this crisis. They have been incredible, pulling together the local response and bringing to bear their unique combination of training, relationships and local soft power in order to ensure that the local approaches to dealing with the pandemic in aid of the community have been strong ones. I think we would all say that they have done absolutely superbly.

The new clause seeks to codify a little more formally the place of directors of public health in the system. As we are authoring a new system in the Bill, this is no bad time to do that. The purpose of the new clause is to clarify the roles, powers and duties of directors of public health and to put them on a statutory footing. Whatever structures DPHs sit within, their major role—the reason why as a country we need them and why we invest in them as we do—is that they act as an independent advocate for the health of the population, for system leadership and for the improvement of the system for the population. They are already responsible within their area for a broad range of things, such as measurable health improvement, health protection, public health input, planning, commissioning, reducing inequalities and more. There is a strong reason to put them on a statutory footing. They of course provide an independent advisory function for a wide range of organisations, including the NHS. My local DPH is very good indeed. She often reminds colleagues that she is the system’s DPH rather than just the local authority’s. She may well be hosted by the local authority, but her remit goes much broader, and that is a very good thing. Putting DPHs on a statutory footing would recognise the system leadership role that they have.

The new clause would use a corporation sole model to ensure that directors of public health have scope for independent action; it would ensure that special arrangements are made for them, as officers of the Crown, to bring certain things to the attention of the Attorney General and the chief medical officer, and to ensure public health representation on NHS managing, regulating or commissioning bodies where necessary; and it would guarantee their professional independence in these wider functions. In the vast majority of cases across the country, most of these functions and roles are operating very well indeed, but the new clause would give statutory underpinning to that.

Together, these changes would allow DPHs to have influence across the entire place that they work for and across all policy areas, including budgetary and allocative decisions, and ensure that they have a chance to play their part across all decisions being made in the local community that impact on public health. This proposal would hardwire links between DPHs and the NHS public health workforce who enact public health policy. For place-based officials, having strong links with local and regional NHS employees is not only a benefit but a necessity. It would help to strengthen our response to health inequalities and hence the prevention of ill health—we have spoken at length about that during these proceedings—as well as enhancing relationships for emergencies, which we have seen in recent months.

Where this is done best, it is a strong model. I know that some directors of public health have consultants within their local NHS trust. That is something that the Association of Directors of Public Health is very keen on. If the Bill and the direction of travel are about an integrated system, those kinds of integrators are a very good model of doing that.

These are critical roles. We have seen that in challenging times, but in more general times, as we push on in order to have a healthcare system that is more preventive, that closes inequality gaps and which delivers excellent services to our population, directors of public health will be really key players in it, so I hope that this attempt to put them on a slightly stronger and more consistent footing will be welcome.

[The Minister for Health (Edward Argar)]

It is a pleasure to see you in the Chair once again, Ms Elliott.

My understanding, in the light of what the shadow Minister has said, is that one of the underlying aims of the new clause is to ensure that the public’s health is at the fore as we reform the health and care system. I have the utmost sympathy with that an aim

The Government recognise the importance of a robust public health system that works to improve the health and wellbeing of the nation and to prevent disease. That is why we have taken decisive steps to reshape our national public health bodies so that we are well equipped to face future challenges. Furthermore, we agree that directors of public health and their teams should have a crucial role at the heart of the new system.

The shadow Minister is absolutely right to say that although directors of public health are hosted by local authorities, they represent the whole system, and we owe them a debt of gratitude. In our past lives, he and I would have worked with DPHs in our local authority contexts, and of course, as Members of Parliament, we have all seen what our local DPHs have had to do over the past year and a half. I suspect that Members who did not know their local DPH have probably got to know them and their work in the community a lot better, which is no bad thing.

This fits naturally with the strategic emphasis on population health that we expect of integrated care systems. Both the Department of Health and Social Care and NHS England have set out in published policy and guidance documents our expectation of directors of public health having an “official role” in integrated care systems. Officials in the Department are working closely with the Association of Directors of Public Health and others to help describe further the place of these roles, the outcomes that we hope collectively to achieve, and the ways in which they can best add value to the system’s impact on health overall.

Although we entirely understand the motivation behind the new clause, I am not sure that it is strictly necessary. It seeks to clarify the roles, powers and duties of DPHs, but their roles and responsibilities are already clearly and accurately set out in legislation and current guidance. The requirement for the recruitment to the role of director of public health, for example, is already clear on professional qualifications, and the registration and regulation requirements are clearly laid out. The new clause may have the effect of reducing the flexibility of the post, although I am sure that the shadow Minister would say that that concern is unfounded.

Furthermore, the current system already provides independence and influence for directors of public health, and that is strengthened by several provisions in the Bill, which includes, for instance, a duty on ICBs to seek advice from persons with the appropriate expertise on prevention and public health, including directors of public health, complementing the existing duty, in the section 6C regulations of the National Health Service Act 2006, for local authorities to provide the NHS with public health advice.

Additionally, we do not believe it necessary to make directors of public health officers of the NHS, as the Bill already provides opportunities for DPHs to link into and influence NHS bodies in their current guise. Integrated care partnerships, for instance, must develop an integrated care strategy to which integrated care boards must have regard in drawing up their commissioning plans. The intended result is to create a plan to meet the health—including public health—and social care needs of the population within their defined geography. That will provide directors of public health with the opportunity to influence NHS commissioning plans to meet wider public health aims.

It is also possible that the new clause would create a number of undesirable consequences—I suspect that the shadow Minister will allay some of those fears in his response. Rather than bringing clarity, the new clause could create confusion and complexity in a system that is already functioning effectively with a clear understanding of the role and how it operates.

The new clause would put a host of prescriptive new requirements on DPHs, including a requirement for them to be officers of the NHS, NHS consultants in public health, and officers of the Crown, while retaining independence of thought and action.

While we certainly understand the motivation of wanting to knit together the system through an individual post, that approach would add a layer of complexity. I believe that it would be challenging for an individual holding that office to seek to balance those complex responsibilities, accountabilities and potentially competing priorities within various organisations. That would also complicate the lines of accountability

My concern is that the new clause is overly prescriptive about the status and nature of the role, which would go against the overall aims of the Bill in terms of permissiveness. Although we hope and expect that directors of public health will act as a nexus for bringing coherence to the local system’s focus on population health, we are not convinced that this level of prescription over permissiveness is appropriate. That reflects a thread of the debate throughout the passage of the legislation on where the appropriate balance should be struck.

Proposed new paragraphs (e) and (h) would weaken the ties that directors of public health have with local authorities. Since the 2012 reforms, there has been widespread consensus that local authorities are best equipped to deal with a wider range of public health matters for their population’s needs. In that context, I pay tribute to local authorities for their role in tackling the pandemic, including those in elected roles. If I recall correctly, the wife and partner of the shadow Minister, the hon. Member for Ellesmere Port and Neston, is active as an elected councillor in a local authority. Many Members of this House will have served in that role, too, and will recognise what local authority councillors and officers do in that space.

From their home in local government, DPHs have been able to maintain an independent mindset while playing a critical role in improving and protecting the public’s health. Although it may well evolve in future, that system is working, and we have a strong and solid base that is understood by all system players. I therefore encourage the shadow Minister to continue to work with me and others to make that system work, rather than seeking to press the new clause to a Division.

[Alex Norris]

I certainly did not intend to add complexity; I was hoping for clarity and consistency. Nevertheless, as the Minister says, those roles are currently functioning effectively, so I will not divide the Committee.

I would say to the Minister and his colleagues, however, that we need a real watching brief on this matter, because assuming that the Bill continues its onward journey and establishes those ICS footprints, there will be a range of different outcomes and organisational cultures. The stronger systems will be those in which the DPHs are at the heart of insight and decision making, and the reverse will be a defining characteristic in systems that are not as good. I certainly hope that we consider the Care Quality Commission reviews that were included in an earlier new clause, and any sector-led improvement, as well as the work those systems do to reflect on what they do and do not do well.

One of the criteria for both streams of improvement ought to be what the DPH does, how central they are, and how sighted they are on decision making. As I have said, in good systems that will be good, and in weak systems it will be weak. Those criteria would be a bellwether of how good the local ICS footprint is. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 45

Duty on integrated care boards to have regard to net zero commitment

“(1) The National Health Service Act 2006 is amended as follows.

(2) After section 14Z43 (inserted by section 19 of this Act) insert—

“14Z43  Duty to have regard to net zero commitment 

When procuring or commissioning goods and services on behalf of the NHS, integrated care boards must have regard to NHS England’s commitment to reach net zero by 2040.””—(Justin Madders.)

This new clause would place a duty on integrated care boards to have regard to NHS England’s commitment to reach net zero by 2040.

Brought up, and read the First time.

--- Later in debate ---

[Edward Argar]

There is no doubt that the climate emergency is also a health emergency. Climate change threatens the foundations of good health, with direct and immediate consequences for our patients, the public and the NHS.

The NHS accounts for around 4% to 5% of UK emissions, and the hon. Member for Ellesmere Port and Neston is right to highlight the critical role the NHS has to play in achieving net zero. Although I have some sympathy with the intention of the new clause, I remind the Committee of the commitment. The commitment to be net zero by 2040 applies only to NHS direct emissions, such as those from building energy and does not apply to supply chain emissions that are the target of the new clause. While ICBs should and will consider the environmental impact of their procurement, that consideration must go wider than the commitment made by NHS England to net zero direct NHS emissions.

To support that work, NHS England is already leading the way on the agenda through a dedicated programme of work, which includes ambitious targets for achieving net zero for the NHS carbon footprint plus by 2045 and for its direct emissions by 2040. We fully welcome and endorse those ambitions. As part of that programme of work, under the 2021-22 NHS standard contract, every trust is expected to have a green plan. As NHS England has made clear in its guidance on green plans, published in June 2021:

“Every trust and every ICS is expected to have a Green Plan approved by that organisation’s board or governing body. For trusts, these should be finalised and submitted to ICSs by 14 January 2022. Each ICS is then asked to develop a consolidated system-wide Green Plan by 31 March 2022, to be peer reviewed regionally and subsequently published.”

On the question of procurement, the NHS is already publicly committed to purchasing only from suppliers who are aligned with its net zero ambitions by 2030. Earlier this year, NHS England set its road map giving further details on the expectations of suppliers to 2030. That work is supported by a broad range of additional action on NHS net zero. NHS England will publish the world’s first net zero health building standard; it will apply to all projects being taken forward through the Government’s new hospital programme, which will see 48 new hospitals built across England by 2030—I can almost see the slightly cynical smile through the hon. Gentleman’s mask.

I know the shadow Minister will argue that the new clause would give impetus to the NHS to move towards net zero in the work it is already doing. I am afraid I am not convinced that it is necessary, given the substantial work already under way. The NHS is already showing its commitment, backed up by clear plans.

[Justin Madders]

I wonder whether the Minister’s nickname in the Department is Steady Eddie, given his consistent responses to many of my new clauses and amendments—consistent, but not always correct. It is very important that the commitment is delivered. We are clearly going to have a disagreement about the best legislative framework in which to do that, but I am not going to push this to a vote. It is clearly an issue that all Members are very keen to see delivered.

I am sure that we will debate the new build programme on a number of other occasions—we may get beyond how many new hospitals it is and on to some of the wider issues. It is a matter we will come back to on a number of occasions.

I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 46

Exclusion of NHS bodies from ability to withhold information requested under the Freedom of Information Act 2000 on commercial grounds

“(1) Section 43 of the Freedom of Information Act 2000 is amended as follows.

(2) After subsection (3), insert—

‘(4) Subsection (2) does not apply to information held by NHS England, integrated care boards, NHS Trusts and NHS Foundation Trusts except to the extent that subsection (5) applies.

(5) Subsection (2) applies to information held by NHS England, integrated care trusts, NHS Trusts and NHS Foundation Trusts relating to another organisation if disclosure of the information would in the opinion of the organisation pose a real and significant risk to the commercial interests of that organisation.’” —(Justin Madders.)

This new clause would prevent NHS bodies from withholding information on commercial grounds unless the information related to another organisation and that organisation considered that its disclosure would pose a real and significant risk to the commercial interests of that organisation.

Brought up, and read the First time.

--- Later in debate ---

[Edward Argar]

I can reassure the shadow Minister, the hon. Member for Ellesmere Port and Neston, that I am not aware of how many FOIs he tables, which is possibly as it should be; it suggests that they are handled in the appropriate way by officials, and not by me. I am sure he keeps officials busy with those requests.

I think we can all agree that transparency and openness are of key importance but—this is where the hon. Gentleman and I may diverge slightly in our views—it is also vital that genuinely commercially sensitive information is adequately protected. Section 43 of the Freedom of Information Act recognises the balance that needs to be struck. It exempts from disclosure any information that would, or would be likely to, prejudice the commercial interests of any person, including the public authority holding the information. It is, however, as he will be aware, a qualified exemption. Merely identifying that the information is commercially sensitive is not enough. The public authority holding the information must weigh up the “genuine public interest” arguments in favour of and against disclosure.

I remind the Committee that there is a robust system in place for testing such decisions. We have an independent commissioner who can scrutinise the decisions, who has the right to see the information in question and who is more than capable of challenging public authorities where he believes that disclosure is in the public interest. Beyond that, of course, those requesting the information have a right of appeal to the tribunal.

There genuinely needs to be a level playing field between public and private contractors, but the new clause would, I fear, place NHS bodies at a disadvantage in some commercial negotiations. It could mean that the NHS was not able to protect its commercially sensitive information, whereas other parties could. I struggle to see how an uneven playing field would benefit the general public and protect taxpayers’ money. I fear that the new clause would also place a significant additional burden on NHS bodies at a time of real strain and, as I have highlighted, there are already remedies in place that meet its stated aim.

I am also concerned about the power the new clause could place in the hands of those conducting commercial negotiations with the NHS. It would be for them, not the public authority, to decide if and when the release of information would pose a real and significant threat. It is difficult to see how the opinion of the organisation could be tested or challenged through the usual route of appeal, as they would not be a public authority within the scope of the Act. The Information Commissioner’s Office would be assessing an NHS body on the basis of judgments reached by a third party. I also point out that

“pose a real and significant risk”

is not a test used elsewhere in the Freedom of Information Act, and so could be open to novel interpretation by the originator of the material. For those reasons, I do not think that the new clause would achieve in a fair way what the hon. Gentleman seeks.

[Justin Madders]

I am relieved to hear that the Minister is not personally dealing with my FOI requests. I know he is very busy dealing with all the foundation trust applications in his in-tray. He made some fair points about ways in which the new clause might cause unintended consequences, but we wanted to put on record our concern about the way the Freedom of Information Act has been used by some trusts to avoid proper scrutiny. As my hon. Friend the Member for Bristol South said, this is unfortunately part of a pattern in patient safety issues, and that is obviously something we have discussed in this Committee. I will not put the new clause to a vote, and I beg to ask leave to withdraw it.

Clause, by leave, withdrawn.

New Clause 49

Protection of the title of “nurse”

“(1) A person may not practise or carry on business under any name, style or title containing the word “nurse” unless that person is registered with the Nursing and Midwifery Council and entered in sub part 1 or 2 of the register as a Registered Nurse or in the specialist community public health nursing part of the register.

(2) Subsection (1) does not prevent any use of the designation ‘veterinary nurse’, ‘dental nurse’ (for which see section 36K of the Dentists Act 1984) or ‘nursery nurse’.

(3) A person who contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level four on the standard scale.”—(Justin Madders.)

Brought up, and read the First time.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I rise to support what the shadow Minister said. It has indeed been an area of contention for many years not only that nurses who have been struck off can use the title but that the title is used loosely. We touched on the same issue when we talked about regulation and about aesthetic procedures: when these titles of doctor, and particularly nurse, are used the public have a perception of what that means. They assume it means a registered and regulated practitioner, and therefore the patient is given far too high a degree of trust in the person simply from the use of that title. It should be a protected title.

[Edward Argar]

As has been set out, the new clause would protect the title of nurse by making it an offence for a person to use that title unless they were registered with the Nursing and Midwifery Council. I entirely understand the intention behind that; as the shadow Minister and the SNP spokesperson have set out, a title such as that comes at any time, but particularly after the past year and a half, with an expectation of the qualifications and duty of care that sit behind it, and brings with it trust. Therefore, it is extremely important that that trust is not in any way abused. I am sympathetic to the intent behind the new clause; I know it is something my constituency neighbour the shadow Secretary of State, the right hon. Member for Leicester South (Jonathan Ashworth), has also spoken about in recent weeks.

The title of registered nurse is protected in law but, as the hon. Member for Ellesmere Port and Neston rightly says, the title of nurse itself is not, given its use across multiple professions, including dental nurses, school nurses, veterinary nurses and so on. As the interim chief nursing officer for Scotland has pointed out, the impact of any change on other groups currently using the title of nurse outside healthcare settings would need to be carefully considered. Quite rightly, the interim CNO said that there is an issue, but it needs to be carefully considered and calibrated.

I am sympathetic to the principle that protection of the title of nurse would be seen as a positive step by the profession, stakeholders and the public. I am also aware of concerns about the potential for confusion in this regard, as highlighted by the petition brought forward by Alison Leary, and I can see the benefit in providing reassurance and clarity to patients and professionals. Given the complexities inherent in making “nurse” a protected title, we need to do further work and gather further evidence to better understand the case for change and the potential impact on some of those other perfectly legitimate professions that use the title.

[Dr Whitford]

I recognise that the term is also used as highlighted—for example, “nursery nurse”. However, veterinary nurses and dental nurses are registered professionals, and therefore that is outwith the group we are talking about. I can see that there needs to be discussion around the more social “nursery nurse”. School nurses are also nurses.

[Edward Argar]

They are, but my point was the difference between registered nurses and just using the title “nurse”. The question is how, in legal terms, we catch that. I accept the hon. Lady’s point that they are all registered nurses. However, we have to make sure that, in drafting, the legislation would not inadvertently catch people who may well be perfectly legitimately registered, as she says, but could potentially be caught if we did not draft or consider the measure carefully.

[Dr Whitford]

I recognise the importance of drafting, but obviously the new clause is seeking to establish that the title “nurse” could be used only by nurses registered with the NMC, dental nurses and veterinary nurses—so that it could not just be used as a title by someone who is not on the register.

[Edward Argar]

I go back to the point I made: there are some perfectly legitimate professions—where there is an expectation and understanding of what they do and a respect for what they do—who use that title, as she alluded to. That is why we have to think a little more carefully about how we might do that, and whether it is the most effective way of assuring and enhancing patient safety.

Protection of title is only one part of the protection regime; it is important, of course, but there are other parts. We should also look at prosecutions of protection of title offences, which are extremely rare; we need to look at that in the context of how that might be enforced. Part of the reason for that is the availability of offences such as fraud by false representation that carry more substantial penalties including custodial sentences, which, I suspect, are sometimes the mechanism used to prosecute in such cases. Depending on the context in which the title is used, other legal action could be taken against a person, including criminal proceedings, civil proceedings and employment disciplinary proceedings, particularly where the person used the title to gain work or employment. There is also the opportunity to prosecute employers who hold their staff out to be regulated healthcare professionals when they are not.

To give some succour to the hon. Member for Ellesmere Port and Neston, we are committed to reviewing the protection of titles as part of the ongoing Government review of the regulation of healthcare professionals.

[Justin Madders]

rose—

[Edward Argar]

Just one more sentence, then I will give way to the hon. Gentleman before I sit down.

We need to gather further evidence to better understand the case for change and whether it represents the most effective and enforceable way to promote patient safety. However, I will certainly carefully consider the proposals he has put forward, in that context, as will my colleagues. I have a few sentences left, so I will give way while I can.

[Justin Madders]

The Minister is sympathetic and has highlighted why the issue needs careful consideration throughout the debate. Are we able to get a formal commitment to public consultation on the issue from the Minister today?

[Edward Argar]

The shadow Minister pushes me a little further than I can go today. However, what I can say is that I have considerable sympathy with what he has said. I will undertake to look at what he and the right hon. Member for Leicester South have said in the context of that review.

Any subsequent change from that review and from consideration thereof probably sits most effectively, in terms of legislative reform, as part of the reform programme for the Nursing and Midwifery Council, which is most effectively taken forward via secondary legislation under section 60 of the Health Act 1999. In the context of that review, and any secondary legislation flowing from it under section 60, we will look at what he set out in his new clause.

[Justin Madders]

I am grateful to the Minister for his positive comments. We were probably pushing our luck with getting a formal commitment from him, but it sounds like we are probably as close as we are going to get to progress on the matter without pushing the new clause formally to a vote. We will keep a close eye on the issue and will, no doubt, come back to it if progress is not made in orderly time. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 50

Access to innovative medicines and medicinal products review

“(1) The Secretary of State must undertake and publish a review of the use by the NHS of innovative medicines and medicinal products.

(2) The review must—

(a) conclude before 31 December 2022;

(b) consider ways to improve the use of innovative medicines and medicinal products within the NHS in England.

(3) The review may consider—

(a) the creation of a specific pathway to assess medicines and medicinal products for rare and less common conditions;

(b) improvements to the way in which patient and clinical experience is accommodated when considering the adoption of new medicines and medicinal products.”—(Alex Norris.)

This new clause would require the Secretary of State to carry out a review of the assessment and use of innovative medicines and medicinal products, and to consider how to improve access to medicines and medicinal products for people with rare and less common conditions in particular.

Brought up, and read the First time.

--- Later in debate ---

[Edward Argar]

I am grateful to the shadow Minister for this discussion. I reassure members of the Committee that the Government remain absolutely committed to ensuring that UK patients, including those with rare diseases and less common conditions, have access to the most promising medicines and medicinal products. Hon. Members raised some important points, which I will seek to address in my broader response to the new clause.

The first part of the new clause asks the Secretary of State to undertake and publish a review of the use by the NHS of innovative medicines and medicinal products. We have existing reporting tools at our disposal to monitor that. Indeed, NHS Digital publishes a bi-annual report on the use of innovative medicines by the NHS in England, known as the innovation scorecard. The latest publication from June 2021 shows that uptake of over 70% of the NICE-approved medicines reported in the scorecard has increased over the past 12 months. I can assure the Committee that we are committed to further strengthening these innovation metrics and to improving our understanding of the use of innovative medicines and medicinal products in the NHS.

The accelerated access collaborative—the umbrella organisation overseeing the health ecosystem—is also continuing to develop the AAC scorecard that monitors the impact of the programmes, and is scoping the development of an overarching innovation metric.

In the second part of the proposed new clause we seek a review to consider ways to improve the use of innovative medicines and medicinal products in the NHS in England. As I am sure right hon. and hon. Members will be aware, the accelerated access review, an independent review published in 2016, set out detailed recommendations to increase the uptake of proven and cost-effective new treatments and technologies in the NHS. The report identified several strategic barriers to UK health innovation, including fragmentation across the system, alongside a lack of horizon scanning and insufficient commercial flexibility in NHS England.

Following publication of the AAR, the Government, the NHS and partner organisations have worked closely together to increase the use of proven and cost-effective medicines. The Government established the accelerated access collaborative to bring together leaders from across the life sciences sector to tackle the barriers to the adoption of innovations in the NHS. It is delivering real success. Last year alone it helped over 300,000 patients to access proven innovations, resulting in 17,000 fewer hospital admissions and 140,000 fewer days spent in hospital, delivering more than £100 million of savings for the NHS. That is thanks to AAC programmes, such as the rapid uptake products programme, which offers bespoke support to NICE-approved innovations to address the systemic barriers that inhibit their widespread use across the NHS, and the early-stage support programme, which supports categories of new, potentially highly effective products that need support through the regulatory and approvals process.

However, the Government acknowledge that there is more we need to do to tackle unwarranted variation in the uptake of clinically proven and cost-effective treatments. This is why we recently published our ambitious life sciences vision, which was co-developed with industry following extensive engagement with stakeholders from charities, patient interest groups, the NHS and the devolved Administrations. The vision lays out our priorities to improve the use of cost-effective innovation, including new medicines and medicinal products within the NHS, with a particular focus on identifying and addressing any unwarranted variation in uptake. The AAC will continue to be at the forefront of that agenda, and work is under way to consider how to best utilise regional, local and frontline delivery partners to support the adoption and spread of proven innovations.

It is important to note that there are already mechanisms in place to assess and support medicinal products for rare and less common conditions. The innovative licensing and access pathway—ILAP—brings together the Medicines and Healthcare products Regulatory Agency, the National Institute for Health and Care Excellence, the NHS and the devolved Administrations to provide tailored, joined-up regulatory and access guidance to businesses. The scheme began operating in 2021, and over 50 applications for innovative medicines have been received so far.

NICE also plays an important role in ensuring that patients have access to promising new innovations, including for patients with rare diseases. Through its technology appraisal and highly specialised technologies programmes, NICE makes recommendations for the NHS on whether new medicines represent a clinically effective and cost-effective use of NHS resources. Where NICE makes a positive recommendation, NHS England and Improvement and clinical commissioning groups are under statutory obligations to fund the technology. It is our intention to extend that obligation to integrated care boards.

Patients with rare diseases are already accessing effective innovations through the NICE programmes. For the drugs for rare diseases—known colloquially as orphan drugs—appraised since 2013, 87% of NICE’s technology appraisal recommendations and 100% of its highly specialised technologies programmes recommendations were positive. That is a significant and positive outcome for patients. However, I am aware of the long-standing challenges, which were alluded to by the hon. Member for Nottingham North, where evidence relating to a medical technology is uncertain. That is a particular challenge regarding rare diseases where, as he said, the population is small.

--- Later in debate ---

[Dr Whitford]

I rise in support of the new clause. It is important to shift the narrative from what is often a structural focus on the NHS, and catching people when they fall, to looking at wellbeing and population to allow people to be healthier and live higher-quality lives for longer.

The hon. Member for Nottingham North mentioned the slowing down of improvement in life expectancy and the variation in life expectancy, but the bigger issue is the failure to improve healthy life expectancy. The 20 years of unhealthy life expectancy faced by many across the UK, particularly in more deprived areas, put pressure on the NHS, and we have seen that come home to roost over the last decade.

A lot of those health issues, or unhealth issues, are laid down in childhood. I am vice-chair of the all-party parliamentary group for health in all policies, which conducted an inquiry into the impact of child poverty. A figure from the Faculty of Public Health that has stayed with me is that the UK loses 1,400 children a year as a direct result of poverty, including by immature birth, small birth weight, foetal alcohol syndrome, fires, road traffic accidents, alcohol and drugs, violence and suicide. That is the number of students in a large secondary school, and if the roof of a large secondary school were collapsing every single year, we would do something about it.

Often, the time to do something about that is in the 1,001 days from conception forward, as the hon. Gentleman said. That means looking at maternal health and nutrition, which is why the early years collaborative in Scotland led to the Best Start grants to mothers and children at birth, on entering nursery and on entering school.

One internationally used measure on the health of our youngest children is infant mortality—death perinatally or in the first year. In 2014, England and Scotland had the same rate of 3.6 per 1,000 live births. In Scotland, we have managed to drive the rate down to 3.2, but in England, it is currently at 3.8. In some poorer areas of the UK, the rate is worse than in parts of the global south and the developing world. That is a brutal statistic.

We talked yesterday about maternal and infant deaths, but this also relates to the attainment gap and other issues faced throughout life by those who struggle in childhood. Investing in early years saves money in the long term. That might be the pitch to the Treasury: if we gave more children a decent start in life, fewer would struggle in the education system, fewer would struggle to get jobs, and fewer would be trapped by addiction or caught in the criminal services system. Instead of picking up the pieces later through the NHS or other public services, surely we should be investing in the best start in life for all our children.

[Edward Argar]

We believe that the creation of integrated care boards and integrated care partnerships represents a huge opportunity to support and improve the planning and provision of services to ensure that they are more joined up and better meet the needs of expectant parents, parents, infants and young children.

We acknowledge that new clause 51 is intended to ensure that the needs of expectant parents, infants and young children are expressly considered by ICBs and ICPs through the development of a tailored strategy. We are working on bespoke guidance, which will set out the measures ICBs and ICPs should take to ensure that they will deliver for babies, children and young people. That will cover the importance of the ICP integrated care strategies having measurable objectives for babies, children and young people.

The strategy must also set out how assessed needs for the area are to be met. The Department is working with NHS England and NHS Improvement and the Department for Education on the drafting of this bespoke guidance, and we will work with stakeholders in the upcoming months on refining the guidance prior to publication.

As per our general approach to the Bill, although we are clear about the statutory functions that will be conferred on ICBs—as they are currently on clinical commissioning groups—including on children’s safeguarding and special educational needs and disabilities, when it comes to implementation, we want to provide local areas with the flexibility to determine what will work best for their systems. We fear that over-prescribing system approaches in the Bill will make it harder for systems to design the approaches that will work best in their areas. That is why we believe the wording, as currently drafted, is appropriate.

--- Later in debate ---

[Dr Whitford]

I support the new clause. For a surgeon, knowing that an operation that they were trained to carry out, and performed in good faith, has caused harm is one of the worst things that can happen. I remember how I felt in the mid-1980s when we began to realise the impact of contaminated blood. It had a huge impact on how I operated. I used special diathermy techniques to avoid blood transfusion in all elective circumstances, and that is something I carried on throughout my time doing breast cancer surgery.

In this case, there may well have been doctors who were dealing with device companies and so on—that regulatory declaration is absolutely needed—but there will be a much greater number of surgeons who were using a device that was licensed and was given to them as the correct, safe device to use.

I find it shocking that although the report was commissioned by the Government, they have accepted fewer than half of its recommendations. The others directly relate to patients who have suffered harm, whether that is the women who had vaginal meshes inserted, or the mothers of children who were harmed by the use of Primodos or sodium valproate.

Sodium valproate is still an excellent anti-epileptic and will not disappear, but it is not a matter for specialist centres. It is so widely used that it is critical that within primary care and on product boxes it is made clear that women who are looking to conceive or who are of child-bearing age should not be left on Epilim; that should be discussed with them right from when they are young teenagers, so they can think about the impact later on.

The recommendations that have not been accepted are not to do with reorganising licensing, or a yellow card system; they are all recommendations that relate to women. That is really disappointing. The redress for them—the setting up of specialist centres to try to repair the damage as far as possible—is what is not being provided. The Government should look at the fact that those are the recommendations they have skirted around and not accepted. These women and the children affected have gone through enough.

[Edward Argar]

It is quite right that we articulate once again the suffering that was the genesis of the review. The hon. Members for Nottingham North and for Central Ayrshire spoke with passion on the issue. We are talking about procedures that had a dreadful impact on individuals and their families.

The Government recognise the effect that the independent medicines and medical devices safety review, and the lived experiences behind it, has had on all the women and children impacted, and their families. That is why, on the day after the review was published, the Government issued a full and unreserved apology on behalf of the health and care sector for the time it took to listen and respond.

I am grateful to Baroness Cumberlege for all the time and effort she put into her report. As hon. Members will be aware, that sentiment was expressed at the time by the Minister responsible for responding to the report, who is now of course the Secretary of State for Digital, Culture, Media and Sport.

The Government published our response to the review on 21 July this year, after carefully considering each of the review’s nine strategic recommendations and the 50 actions for improvement in greater depth. Our response set out an ambitious programme for change that, at its core, is focused on improving patient safety.

The Government accepted the vast majority of the strategic recommendations and actions for improvement. I reassure the Committee that we are committed to making progress on all accepted recommendations at pace. That is why, in our response to the review, we committed to publishing an update on our progress in implementing the accepted recommendations 12 months after the initial response. I know that hon. and right hon. Members from across the House will rightly vigorously continue to hold the Government to account on that. I reassure them that the Government take very seriously our responsibility to implement the accepted recommendations at pace.

Many of the recommendations will introduce large-scale changes to patient safety, and we have a duty to get their implementation right. I hope it will encourage hon. Members to hear that the Government have already made strong progress on implementing many of the accepted recommendations of the review. I will turn to those in more detail, because I think it is important that we update the Committee and the House.

--- Later in debate ---

[Karin Smyth]

I rise to support the comments made by my hon. Friend the Member for Nottingham North. He is absolutely right that this new clause follows neatly from the previous one, because I am in no doubt that if women were more involved and more listened to and had more power within the healthcare system, the debacle around vaginal mesh would not have got so far, and we would not sadly still be in a state where the recommendations have not been implemented. This is about power, listening, and having a voice in the system with regards to reproductive healthcare planning.

In the Chamber last week, I said regarding my hon. Friend the Member for Swansea East’s menopause revolution that when we worked on a women’s health strategy in the late 1980s, we barely mentioned the menopause. We were looking at reproductive rights even then, and for those of us who have followed this issue over a period of 30-odd years, it is deeply worrying to see where we still are. Again, this comes back to very basic patient care. I will certainly be supporting my hon. Friend the Member for Swansea East tomorrow to start the menopause revolution, which is going terribly well. We are hoping for serious improvements in healthcare over the coming years, and this new clause highlighting reproductive healthcare planning is really significant for the voice it should give to women at this important stage in their lives.

[Edward Argar]

It is possibly lucky for the Government that the hon. Member for Swansea East is not on this Committee, because she can be extremely persuasive. In my role at the Ministry of Justice, she managed to get a number of things out of me by persistent campaigning.

I am grateful for the opportunity to have this debate today. Women’s reproductive health remains a priority, and it is vital that women’s voices are listened to, particularly when it comes to their own healthcare. That is why we are developing a new section of the reproductive health strategy, which will of course sit alongside the developing women’s health strategy. They will both seek to address issues relating to women’s reproductive health.

--- Later in debate ---

[Dr Whitford]

rose—

[Edward Argar]

The hon. Lady may be about to agree with me; she is welcome to do so.

[Dr Whitford]

When we debated vaginal mesh, Primodos and valproate in the Chamber, one of the big issues that came up—I certainly spoke about it—was the issue within medicine, with doctors. What work will be done with Health Education England and medical schools to ensure that young student doctors, and doctors in early training, recognise this terrible dismissal of women’s concerns about all aspects of their health? The menopause is a classic, but there are many others.

[Edward Argar]

The hon. Lady is absolutely right to raise that. We need to get across, loud and clear, to our future clinicians almost right from the start—from their training and early education—the message that everyone’s health concerns matter equally, subject, obviously, to clinical decision making. I hope and believe that HEE and others will engage with that process in the context of the women’s health strategy. We do not want it to be a document that just sits on a shelf, or want it to look at issues in a siloed way; it should look at them across the piece. Over many years, there have been strategies on particular aspects of health. In the strategy, we seek to bring together a whole range of factors, so that we can look at how women interact with the healthcare system, and how to meet their needs holistically.

We want to maximise the independence of ICBs, so that they function in the way that best suits the needs of their patients and their organisations. We are therefore keeping their legislative obligations proportionate; that brings us back to a debate that the Committee has had multiple times about the permissive nature of the legislation. I agree that appropriate representation is essential in healthcare planning. I fear that the new clause is overly specific and not necessarily in keeping with the obligations on ICBs set out in clause 19 on general functions.

The Bill already puts obligations on ICBs that will help to ensure that relevant groups are fully represented and consulted in decision making. In particular, ICBs will need to ensure that they have taken appropriate advice from a broad range of those with professional expertise. As the work of ICBs will inevitably cover reproductive health, that requirement ensures that relevant groups are included in this work. Furthermore, as we discussed in the opening sittings of the Committee, local areas will have the flexibility to determine any further membership of the ICB beyond the minimum for which we have legislated. That discretion will allow local areas to ensure appropriate representation.

On working in partnership with the non-profit sector and local community groups, I recognise the essential role that those organisations and groups play, and agree that they should be involved in strategic decision making where appropriate. Each ICB and their partner local authorities will be required to establish an integrated care partnership. We expect the ICP to bring together organisations from across health, social care and public health, and representatives from wider areas where appropriate. That could include organisations from the voluntary and community sector. The ICP will be tasked with promoting partnership arrangements and developing a plan to address the health, social care and public health needs in its area. As that will include reproductive healthcare needs, we would expect relevant local groups to be represented. The ICB and local authorities will have to have regard to that plan when making decisions. That will enable more joined-up planning and provision, both in the NHS and by local authorities, which will enhance the services that people receive.

Existing and proposed duties already address the concerns underlying the new clause and ensure effective public involvement. We have concerns about imposing additional duties on individual services. Our approach enables local NHS bodies, supported by national guidance, to decide how best to involve patients and the public in the planning of commissioning arrangements, and in developing and considering proposals to change them, so we are not convinced that the additions in the new clause in respect of reproductive healthcare are necessary.

[Alex Norris]

I am grateful for the contribution from my hon. Friend the Member for Bristol South. Many people will be looking with great interest at what happens tomorrow. She spoke about the menopause not having been on the political agenda for such a long time. I think that that has changed, and not before time, so we are all very much looking forward to what will happen.

We have tested the Minister on the permissiveness point quite a lot, so by this, the 22nd sitting of the Committee, I think it is possibly an established fact, and I do not intend to divide the Committee, but I do want to come back on what he said about the sufficiency of the duties as drawn. When we have pushed for individual plans for each ICB—say, on inequalities, on the first 1,001 days and on drugs and health—there has almost been a sense of, “Well, of course these bodies will want to do that. It will be their local decision, but of course the evidence will drive them to do that.” I do not think we can say, on women’s health, that that is an “of course”, because we know that actually, historically, it can be very much an afterthought.

The thought that I might leave colleagues with on this issue is that we are having a growing conversation in this country about misogyny, and one of the things that you will hear men say a lot—I have said this myself, because I mean it—is, “We have to hold one another to account for the things we say and the way we act.” I completely agree with that. In that spirit, we have to understand that if a lot of the basic reproductive healthcare things that we are talking about today happened to men, we would be doing them in McDonald’s drive-thrus. It is as simple as that. Therefore, if we are to have an honest conversation with one another about misogyny in this country, it is that sort of thing that we mean. It is not always about pointing fingers and blaming, or policing jokes, which I think is important; it is actually about saying that services are different because these things do not happen to us and we should be more mindful of that and should want to change. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 54

Enhanced data collection

“(1) The National Health Service Act 2006 is amended as follows.

(2) After section 14Z43 (inserted by section 19 of this Act) insert—

“14Z43A  Duty to develop data collection systems

Integrated care boards must—

(a) develop single whole-system IT systems across the whole of their integrated care system with the explicit purpose of supporting data collection and sharing;

(b) prioritise the use of those data systems for streamlining patient pathways;

(c) establish mandatory standards for patient-initiated follow ups; and

(d) use the data systems developed under paragraph (a) to report on a regular basis performance against improving patient outcomes in line with the standards established under paragraph (c).””—(Alex Norris.)

This new clause requires ICSs to develop digital data collection and sharing systems, and use them to track performance against mandatory standards, with specific regard to patient-initiated follow ups.

Brought up, and read the First time.

[Dr Whitford]

On new clause 54, I just want to speak to proposed new subsection (d)—the use of data to assess performance against outcomes. Between 2009 and 2019, there was really no significant national audit of quality of breast cancer services in England, even though some of that audit had been carried out in previous years. Part of that was due to the fracturing of the system from the social care Act. There might be only one breast unit within an area, and quality was left to commissioners. How can commissioners measure whether a local breast unit is treating people properly or achieving the aspired-to targets?

In Scotland, 19 of the commonest cancers are audited; I was involved in developing the breast cancer standards in 2000, and they have been updated many times since. They are assessed annually with an annual peer review conference, where clinicians will openly discuss the challenges they face and therefore will share the solutions many of them have come up with. The clinical things that we know will affect the survival and outcomes of our women in the future are all set as national benchmarks. It is important that, while data would be collected locally, it is benchmarked against national standards.

The Getting It Right First Time project was restarted in England a few years ago but, to my knowledge, although the Getting It Right First Time for breast cancer report was completed at the end of 2019, I have not seen it published. That appeared to be due to the election in December 2019; perhaps the Minister can clarify whether the breast cancer GIRFT report has now been published, when it might be published and what other GIRFT reports have come out.

The problem is that, even if that report were published now, two years after its completion, it would largely be based on data from 2018, and therefore clinicians would shrug their shoulders and say, “Out of date.” It is important that data is used in a timeous manner to audit as quickly as possible, so that the audit loop can be closed and services improved. Having led on this process in Scotland, I saw the change in standards between 2001, when we began the first assessment, and 2005, and it is an incredibly satisfying, not frightening, thing for clinicians to see year on year the quality of care delivered by their unit driven up. There must be national standards, but local audit.

[Edward Argar]

This new clause would create an obligation on ICBs to develop system-wide data-sharing IT systems. It would also require them to set and report on targets linked to outputs from this system. I recognise the importance of effective IT systems for the efficient delivery of services and for holding systems to account. However, we must set that against seeking to maximise the independence of ICBs to function in a manner that best suits the needs of their patients and organisations.

The obligations set out in the Bill are designed to establish a framework which ensures that ICBs fulfil their functions properly, while granting them as much discretion as possible in how they do so. The provisions in the Bill strike the balance between conferring the necessary duties and functions on ICBs to operate safely and effectively, and avoiding being overly prescriptive in any specific area. By placing too many statutory duties on ICBs, the risk is that innovation and locally led solutions may be stymied and focus may be taken away from their primary function of arranging for the provision of health services.

Of course, ICBs should be committed to improving patient pathways. However, we believe the duties already set out in the Bill are sufficient to ensure this happens. Further to the requirements set out in the Bill, there are already specific relevant provisions elsewhere in legislation. Section 251B of the Health and Social Care Act 2012 places a duty on certain health or social care organisations, which would include ICBs, to share information about an individual with certain persons where this will facilitate the provision of health services or care to the individual and is in the individual’s best interests.

In addition, there is significant work already under way on data strategy, which will have a direct impact on ICBs. The data strategy “Data Saves Lives: Reshaping health and social care with data” sets out commitments to transform the way that data is used across the health and care system, giving patients control of their health data and enabling staff to save more lives through improved care and treatment. It recognises that ICBs will help the NHS to join up data and delivery more seamlessly, working side by side with local government, third sector partners, and the wider health and care system to address long-term challenges, and sets out that each ICB will be expected to use digital and data to drive systems working, connect health and care providers, improve outcomes and put the citizen at the heart of their own care.

The data strategy was published in draft for engagement in June and a final version will be published by the end of the year. It sets out a range of commitments to ensure that health and care professionals have the data they need to provide the best possible care, that local and national decision makers are supported with data, and that data for adult social care are improved. It also includes commitments on every ICB having shared care records in place, and commitments in relation to data sharing between NHS organisations and supporting the underpinning infrastructure in order to ease data sharing.

--- Later in debate ---

[Alex Norris]

I beg to move, That the clause be read a Second time.

Domestic abuse is an issue of significant interest across this place. We know that two women a week are killed by a current or former partner in England and Wales alone. As we mentioned the other day, a quarter of women will experience domestic abuse in the course of their lifetime, which has devastating effects. It impacts on both the physical and mental health of survivors and their children, and it has a terrible cost in general to everybody, including a financial cost.

New clause 56 would impose a duty at a local level to ensure that GPs have access to specialist domestic violence and abuse training. It is something that would be very welcome, and we are proposing a duty for integrated care boards to provide that. GPs are a credible point of contact for people in violent relationships. Some 80% of women in a violent relationship seek help from health services first. In some cases, that is their only contact. Training for GPs is vital to ensure that such contact is of the best possible quality. A study of women in violent relationships in the Netherlands found that 50% of women who did not speak to their GP about the matter would have done so if the GP had been in a position to approach it. Moreover, 50% of the women who did talk to their GP did so because they hoped to be referred on, so they wanted to have a high-quality conversation with someone who knew the system.

From my time prior to this place and my experience in Nottingham, I have a lot of enthusiasm for the IRIS programme—the identification and referral to improve safety programme. A trial carried out by Bristol University found that the training programme led to up to six times more women receiving the help they needed, and that it boosted the number of referrals to specialist domestic violence agencies. After IRIS training, GPs reported being better able to assess domestic violence risks and a greater awareness of services, while 99% of service users felt listened to and 87% felt safer.

The evidence is that such training works. This is of course not the way in which we should write a new clause, but I am saying that IRIS should be universal or something like it. I would leave the “something like it” to the provider market and to commissioners but, in general, the principle is that all GPs should have training so that they can understand and act on domestic abuse and have the right resources to provide support and make skilful onward referrals, so that the system can wrap its arms around an individual who is trying to get out of an abusive situation. That would be exceptionally important for such women, and I hope the Minister will have some thoughts about how we can get to a universal, IRIS-like level of engagement with our GPs.

[Edward Argar]

The new clause would require ICBs to provide specialist domestic violence and abuse training, support and referral programmes to all GPs, with the aim of strengthening the health response to domestic abuse and improving links between the NHS and voluntary sector support for victims. We have concerns about the new clause, which is why we cannot accept it, but I hope that I can set out to the shadow Minister my reasoning.

Domestic abuse, as we discussed yesterday when considering another proposed new clause, is a terrible crime, and it can have a devastating impact on victims and survivors. It is also important that we remember that children are often just as much victims as the victims themselves, through the experiences that they have of domestic abuse and domestic violence. The Government are clear that there is absolutely no excuse for abuse. Tackling domestic abuse and supporting victims, survivors and their children is a key priority for Government, now more than ever.

The Domestic Abuse Act 2021 and the forthcoming domestic abuse strategy will help to provide a whole-system approach to protect and support victims and their children. The measures in the 2021 Act seek to promote awareness by introducing a statutory definition of domestic abuse, and to recognise children, as I alluded to, as victims in their own right, in order to protect and support both, tackle perpetrators, transform the justice response, and drive consistency and better performance in the response to domestic abuse.

The 2021 Act also sets out the convening of local domestic abuse partnership boards, with healthcare representation. We recognise the key role that healthcare services play within a whole-system approach to tackling domestic violence. Healthcare services must identify signs of risk and harm, enable victims and survivors to come forward, and provide timely integrated care and support. We know how important it is that statutory agencies and professionals properly understand and react to domestic abuse. However, I hope that I can reassure the Committee that placing in the Bill a formal duty on ICBs to ensure that specialist domestic violence and abuse training, support and referral programmes are universally available to all GPs is not necessary.

General practice is delivered by multidisciplinary teams, rather than just GPs, and existing Care Quality Commission registration requirements include a review of practices’ safeguarding processes. In addition, NHSEI’s ICS people guidance sets an expectation that ICBs will foster learning and continuing professional development. Going further, the Bill, in proposed new section 14Z41 of the National Health Service Act 2006, imposes a duty that each ICB

“must, in exercising its functions, have regard to the need to promote education and training for the persons mentioned in section 1F(1)”

of the 2006 Act.

[Sarah Owen (Luton North) (Lab)]

Again, I break the convention that Whips do not speak, because this issue is close to my heart. I listened carefully to the discussions yesterday, and to what the shadow Minister, my hon. Friend the Member for Nottingham North, and the Minister have said on the new clause, but if we looked at domestic abuse as a disease or virus, given the fact that it kills women, it kills people in their homes, and has mental and economic impacts that affect people’s overall health, we would certainly ensure that GPs were trained on it. Why can we not do the same thing with domestic abuse?

[Edward Argar]

I am grateful to the hon. Lady. In part, the reason is because this is sadly not a well drafted new clause. It is very narrowly drafted to GPs, not recognising the multidisciplinary nature of how healthcare is delivered in GP practices. I suspect that we all have correspondence from constituents—whether happy or unhappy—going to doctor associates, practice nurses and others. That is one of my key concerns, but let me articulate a little more what is already being done. I see where she is coming from. As I mentioned yesterday, I was the Minister with responsibility for victims of domestic violence, and of crime in general, when I was in the Ministry of Justice, so it is something that I am very familiar with. It is about raising awareness not just with GPs, but within the police and a range of agencies. My challenge, just before she intervened, was partly about the way the new clause is drawn, but let me articulate a little further our views on it. I am keen to do so before the business possibly collapses early in the House, and we have to adjourn in order that I can respond to the Adjournment debate.

Section 1F of the 2006 Act defines a wide group of people, covering persons who are employed, or who are considering becoming employed, in an activity that involves or is connected with the provision of services as part of the health service in England. That duty on ICBs would already cover general practitioners, but it goes wider. I appreciate that the new clause goes beyond training, so I will also discuss the support and referral elements that the hon. Member for Nottingham North talked about.

The NHS provides care and support to victims of domestic abuse through a range of healthcare services. This response is centred around ensuring that healthcare professionals are trained to spot the signs of domestic abuse and those at risk; to make safe and sensitive enquiry of the issue; to know where to refer people to get further support, and to know when and how to share information appropriately with colleagues and other organisations.

All NHS staff must undertake annual mandatory safeguarding training, which includes focus on domestic abuse. NHS England, NHS Improvement and Health Education England are reviewing mandatory safeguarding training for all health professionals to ensure that they are fully equipped with the key skills, knowledge and principles to protect all citizens. The Government published an online domestic abuse resource for health professionals and have developed a number of training modules with the Institute of Health Professionals, the Royal College of Nursing and the Royal College of General Practitioners.

From 2018 to 2020, the Department managed £2 million of funding for the domestic abuse pathfinder programme, which created a model health response for survivors of domestic violence and abuse in acute, community and mental health services. The pathfinder toolkit was published in 2020 as the result of emerging promising practice at our pilot sites, coupled with the expertise of the pathfinder consortium of specialist domestic abuse organisations, to encourage best practice across the health system. Pathfinder has given us a model for our response to domestic abuse in healthcare. It is a model for integrated, joined-up and trauma-informed care and support, with healthcare settings and the voluntary sector working together.

As the shadow Minister mentioned, the Department of Health and Social Care has also funded the IRIS programme, to which I pay tribute. IRIS is a training, referral and advocacy model to support clinicians in better supporting patients who are affected by domestic violence and abuse, and to increase the awareness of domestic violence and abuse within general practice. IRIS is recognised by the DHSC as good practice, and via the National Institute for Health Research we funded a study that demonstrated the effectiveness of the IRIS programme at scale. I am delighted to note that the study won the 2020 Royal College of General Practitioners research paper of the year award.

I am proud that the Government have championed the building of that evidence base. I believe that it would not be best or appropriate, however, for the legislation to require local health and care systems to adopt specific programmes. Indeed, such detailed requirements would reduce local health and care partners’ flexibility to meet the needs of their local populations or to engage with particular local organisations and expertise in delivering their programmes.

Beyond ICBs, I see a huge opportunity for integrated care partnerships to support improved services for victims of domestic abuse, sexual violence and other forms of harm, through better partnership working and joint planning of services. The Government have also developed a cross-Government strategy for tackling violence against women and girls, and will develop a cross-Government domestic abuse strategy.

As committed to in the tackling violence against women and girls strategy, the DHSC will continue to work closely with NHS England and NHS Improvement to promote evidence-based approaches to tackling violence and abuse through guidance and engagement with the new system.

[Alex Norris]

I am grateful to the Minister for his response. I am more than happy to wait for the domestic abuse strategy, but I really hope that such measures will feature in it, and that when the strategy goes around various Departments for their comments, the Minister will make a commitment—

[Edward Argar]

May I make the offer to the hon. Gentleman that I or the relevant Minister leading on this—whoever is more appropriate—will engage directly with him?

[Alex Norris]

That is very welcome, and in that spirit, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 57

Cancer strategy

“Within 12 months the Secretary of State must—

(a) publish a new cancer strategy; and

(b) either designate a minister or appoint a national lead with responsibility for enacting its implementation.” —(Alex Norris.)

This new clause requires the publication of a new cancer strategy, with a minister or other person made responsible for its delivery.

Brought up, and read the First time.

--- Later in debate ---

[Alex Norris]

I am conscious of other business, so if I am interrupted, I will not take it as rudeness.

[Edward Argar]

We may be okay.

[Alex Norris]

New clauses 57 and 64 both relate to cancer. It is not quite possible to quantify the damage done by cancer in this country because we end up just throwing big numbers around. In the UK, there are 375,000 new cases and 166,000 cancer deaths each year. Each of those numbers represents a person with a devastated family. I lost my father to cancer in my infancy—35 years ago in January—and that loss is something that lives with a family for the rest of their lives.

We know that one in two people born after 1960 will be diagnosed with cancer. Our investment in cancer services is £5 billion a year, but the cost dwarfs that, at over £18 billion. Nearly 40% of cancers are preventable. Happily—this is something we should be proud of in this country—the developments that we are making in medical and technological areas mean that cancers are increasingly survivable, with the survival rate doubling in the last four decades. Better diagnosis and treatments mean that nearly 50% of those diagnosed with cancer in England and Wales now survive for 10 or more years, and there is no reason for that to stop increasing.

--- Later in debate ---

New clause 64 is about data; the two new clauses are well read together. This is about being honest about the data and the impact of the pandemic, and also the impact of an underserved NHS in the run-up to the pandemic, which meant that cancer targets had not been met for a very long time. We need to pull that together in one honest appraisal of the situation so that we can start to plan to tackle it. It is absolutely fundamental for families.

[Edward Argar]

New clause 57 seeks to commission, as the shadow Minister has said, a new cancer strategy and to designate a Minister or appoint a national lead with responsibility for enacting its implementation. The Government’s current cancer strategy is incorporated in the NHS long-term plan, published in 2019. That plan sets out ambitions that by 2028 the proportion of cancers diagnosed at stages 1 and 2 will rise from around 54% to 75% of cancer patients, and 55,000 more people each year will survive their cancer for at least five years after diagnosis. The shadow Minister is right to highlight the importance of the issue as something that touches everyone in some way, directly or indirectly. In the midst of the pandemic last year, I lost my uncle to cancer, and I suspect families all over the country are experiencing something similar among their family and friends. That is in the nature of the disease that we are talking about.

The NHS long-term plan contains a series of commitments to support the ambition. It focuses primarily on fast and early diagnosis, raising greater awareness of the symptoms of cancer, lowering the threshold for referral by GPs, accelerating access to diagnosis and treatment, and maximising the number of cancers that we can identify through screening. That ambition was intentionally set at a stretching level. Achieving it requires material progress in all of the long-term plan’s activities as well as successful innovation. The covid-19 pandemic has made the ambition even more challenging because of the additional pressure it has put on the NHS. It is still too early to assess the extent of the pandemic’s effect on that ambition in the long term. We remain absolutely committed to the need to prioritise earlier diagnosis to improve cancer outcomes. This ambition was strongly supported by the many cancer charities that worked with us to agree the priorities for the NHS cancer programme, and I pay tribute to them all.

I understand the intention behind the new clause. The covid-19 pandemic affected all NHS services in creating an environment unforeseen at the time by the long-term plan. In response to the pandemic, NHS England and NHS Improvement set up the cancer recovery taskforce, which provided advice and guidance on the national strategy for the recovery of cancer services. It monitored progress against the aims of restoring demand, reducing waiting times and ensuring sufficient capacity for cancer diagnosis and treatment. The taskforce published the cancer recovery plan in December last year, which fed into NHS operational and planning guidance outlining how the NHS would return to its pre-pandemic cancer performance within the long-term plan. It is thanks to the taskforce and forward planning that the CQC’s “State of Care 2020/21” report says that cancer services have achieved the best response and recovery, generally closing the gap in access on pre-pandemic levels more than any other area, although it notes that this still leaves a large backlog, which the recovery plan is focused on tackling.

The long-term plan commits NHS England and NHS Improvement to speed up the path from innovation to business as usual, spreading proven new techniques and technologies and reducing variations. I therefore consider the new clause, while it covers an important issue and quite rightly draws it to the attention of the Committee, not strictly necessary, because an ambitious cancer plan is already embedded in the long-term plan, with clear plans in place to support the recovery of cancer services from the pandemic specifically. We are fully committed to the actions within these plans and to seeing the long-term plan to its conclusion.

[Dr Whitford]

The Minister has not mentioned the workforce, specifically in radiology, which is very much the central specialty in diagnosing cancer. The data show that, once someone has been recognised as a cancer patient, they are still being treated relatively quickly—as he highlights, there is a shorter gap—but the problem is actually diagnosing someone, and the radiology workforce has a drastic shortage.

[Edward Argar]

I am grateful to the hon. Lady, who is distinguished in this field herself, from her previous career. She quite rightly highlights the importance of the workforce. Since 2010, in both radiology and radiography, there have been significant percentage increases in the workforce of those specialist professions. However, she is right to highlight that, while we have seen a significant percentage increase, in absolute terms we still need to do more to grow those professions. We have plans in place to do that, but that is a slow task; it can, in some cases, take up to 10 or 12 years to become an experienced specialist in that field.

On those increases since 2010, the Government would argue that we put measures in place, but it is also important to recognise that the previous Labour Government were working on this as well, hence the pull-through; those radiologists and radiographers did not magically appear immediately after 2010. There were programmes in place before and after that, so it is right that we recognise the contribution of the Opposition when they were in Government.

Finally, the new clause also seeks to place a Minister or national leader in charge of that new cancer plan. My ministerial role includes responsibility for elective recovery and recovery from the pandemic—our plan to tackle those waiting lists. As the shadow Minister knows, my hon. Friend the Member for Bury St Edmunds (Jo Churchill), the former Under-Secretary of State for Health, who briefly sat on this Committee, had responsibility for cancer services specifically, as does the new Under-Secretary. Dame Cally Palmer is the national lead as the national cancer director at NHS England and NHS Improvement. She has a distinguished career as chief executive of the Royal Marsden Hospital in parallel. We are jointly responsible for the current cancer plan. It is therefore unnecessary to include that new duty when we already have those accountabilities.

I will move on briefly to new clause 64, which we are considering with new clause 57. It seeks to legislate for an additional duty on the Secretary of State to publish data on cancer waiting lists, cancer diagnoses and action being taken to reduce the number of patients waiting for cancer treatment in England. Again, I understand the intention behind the new clause. Cancer is one of the greatest challenges to people’s health, as we set out. I would like to highlight first the fact that the Government are already delivering on the request for monthly publication of cancer performance data. Ensuring transparency of data is a priority. Each month, we publish official statistics on waiting list data, including the number of patients who began cancer treatment and waited longer than 62 days for treatment. NHS England also publishes monthly management data on the number of people currently waiting longer than 62 days for diagnosis or treatment. The new clause calls for data that is very similar to what is already published, and we therefore consider that it would be duplicative.

Secondly, on the request to publish predictions—that is not something that is currently done. Doing so would likely result in unhelpful poor-quality assumptions or modelling that could lead to expectations or an understanding that is not reflected in the reality of the data that comes through. While we look at all data sources internally, it would not be in the best interests of scrutiny and, potentially, patients to publish poor-quality predictions with a limited confidence factor.

Thirdly, there is no evidence of need. Following the success of campaigns such as Help Us, Help You, we have seen the public seek medical attention for symptoms that might be cancer, while cancer referrals from GPs have been at record levels since March. At the same time, the NHS has been delivering high-quality and innovative solutions to improve cancer care and treatment. We have announced funding for elective recovery, including cancer services, of £2 billion this year and £8 billion over the next three years, which will increase activity and deliver millions more checks, scans, procedures and treatments. We will continue to publish and review the monthly official statistics to monitor progress.

Finally, on the request for the Secretary of State to publish a report every six months on the actions taken to reduce the number of patients awaiting cancer treatment, I should state that the NHS has already undertaken extensive work to reduce the number of patients waiting for treatment and to continue progress in delivering the long-term plan ambitions for cancer. We will publish the elective recovery delivery plan later this year, which will set out how the NHS will deliver increased elective capacity and how cancer patients will be prioritised for access.

Furthermore, the NHS cancer programme already regularly reports on progress through both NHSEI and DHSC governance structures, through publication of monthly data on cancer waiting times and through regular communications products. We would therefore argue that the new clause is duplicative. While I assure the Committee that we are taking urgent action to reduce cancer waiting lists, we consider the new clause to be unnecessary.

[Alex Norris]

I am grateful for that answer, which reflects the current difference in public policy between the Government and the Opposition. At oral questions to the Health Secretary, I always ask and will continue to ask whether the Government’s position is that the current plans and status will be sufficient to meet the challenges and the backlog—we think they are not. While the system was overheated before the pandemic, it has been distressed by the last 18 months. We do not think that asking that system to meet both emergent and old problems will work. However, that is probably a point for oral questions and future debates, rather than this Public Bill Committee. On that basis, I will withdraw the clause.

As we are coming to the end of the debate, I might gently say to the Minister, on his point that the Government do not make predictions because they might be unhelpful in the future, that it feels as if, every time he goes on the news, the Health Secretary puts waiting lists up by another million in an extraordinary attempt to manage expectations. Was it 13 million last time? It just goes up and up. I do not think it is quite fair to say that Ministers do not do that—the Health Secretary, at least, certainly does. Nevertheless, that is no reason not to withdraw the clause, and I therefore beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

Ordered, That further consideration be now adjourned. —(Steve Double.)

Health and Care Bill (Twenty Second sitting)

Edward Argar Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[Alex Norris (Nottingham North) (Lab/Co-op)]

I beg to move, That the clause be read a Second time.

I have heard about the fastest gun in the west; I think you might be the fastest-moving Chair in the west midlands, Mr McCabe. Turning to the substance of the new clause, covid-19 has shown the value of public health programmes in building this country’s resilience and improving public health outcomes, yet there is no duty in the Bill on NHS England to promote such public health programmes to integrated care boards or to evaluate their impact. New clause 58 seeks to change that.

During proceedings over the past couple of months, I have highlighted on multiple occasions the damage caused by the short-sighted health cuts we have seen over the previous 11 years, so colleagues will be relieved to hear that I am not going to repeat those points. However, we should be looking to do better now and to use this Bill as a watershed moment. As the Association of Directors of Public Health noted when the White Paper was published, there is a limited focus in the Bill on the health inequalities that have been exposed and exacerbated by covid-19 and, again, this new clause seeks to improve that situation. With the changes to Public Health England and the announcement of the new Office for Health Improvement and Disparities, it is vital that the Government make a belated recommitment to public health and prevention.

There are a number of ways in which that commitment could be manifested. Public health programmes are particularly crucial to the prevention agenda, and it is right that NHS England promotes the value of those programmes, looks at them, assesses them and reports on their impact. To draw on one example that is linked to an item we will be discussing later—dental services—community dental services and oral health public health programmes have shown that significant savings and significant improvements in individuals’ lives can be generated through effective, evidence-based public health programmes. Social enterprises such as those can bring a number of additional benefits. They exist not to make a profit but to deliver on a social mission and to reinvest any surplus in improving local services.

That is what the public health grant traditionally funded. When I first had responsibility for the public health grant in 2014, 85% of that money went into commissioned services. That funding will have been diluted by the cuts in recent years, but largely that money went to community-based, not-for-profit, evidence-based schemes. Public health programmes really improved our communities, but we have lost them, and that is a sadness. We need to recommit to them and have a real focus on getting integrated care systems to commit to them, demonstrating what works in one part of the country and promoting it across the rest of the country. That is what this new clause seeks to achieve.

[The Minister for Health (Edward Argar)]

Mr McCabe, it is a particular pleasure to see you in the Chair this morning, allowing us to get going.

I very much welcome the opportunity to debate and put on record again the Government’s commitment to improving and protecting the public’s health and to supporting evidence-based interventions. Like the shadow Minister, the hon. Member for Nottingham North, I can think of no better example than the remarkable speed of this country’s roll-out of covid vaccinations and the response to the pandemic, saving lives and supporting our economic recovery. That, of course, is testament to the hard work and dedication of our NHS and public health professionals in rising to the greatest infectious disease challenge of modern times.

Our commitment to evidence-based public health is also writ large in many of the Bill’s provisions, our wider programme of public health reform and the proposals set out in the Government’s recently published plan for health and care, “Build Back Better”. We made it clear in that document that although the Government’s immediate priorities for the NHS must be dealing with covid and recovering from the elective backlog, the long-term priority is to shift the NHS towards prevention. Prevention must be a central principle in delivering a sustainable NHS and levelling up. That means fixing the underlying causes of ill health, which is at the heart of the mission of the new Office for Health Improvement and Disparities and the new UK Health Security Agency.

As new clause 58 hints at, a focus on prevention, coupled with a strategic approach to population health more generally, will also be at the heart of integrated care systems. The new triple aim will bind NHS bodies to consider wider effects on health and wellbeing, alongside a duty to reduce inequalities in access and outcomes. Integrated care boards will be required to seek advice from persons with a broad range of professional expertise on public health and prevention, complementing the role, already set out in regulations, of local government and directors of public health to provide advice. Moreover, each integrated care partnership’s strategy will be clearly rooted in, and draw extensively on, local place-based joint strategic needs assessments so that real needs and priorities can be addressed at local level. The ICB’s plans must have regard to that strategy.

I entirely concur with the shadow Minister that evidence-based public health practice is always desirable, and a learning culture essential, but the Government do not see the need for a specific legal duty on NHS England to promote that to ICBs—as envisaged by the new clause—although it undoubtedly will have a role in exhorting and supporting them to their best efforts. The Office for Health Improvement and Disparities and the UK Health Security Agency will also have an important role in this regard, and the National Institute for Health and Care Excellence will continue to issue evidence-based guidance on public health topics referred to it.

There is already a broad obligation on NHS England and NHS Improvement to promote continuous improvement in the quality of services provided across the NHS and, in doing so, to have regard to evidence-based public health quality standards. That includes having regard to quality standards prepared by NICE.

It follows from the rejection of the first limb of the new clause that the Government cannot support the second. However, as set out in “Build Back Better” the Government will bring forward separately from the Bill a new requirement for NHS England

“to introduce a yearly prevention spend, outcome and trajectory reporting criteria, including an assessment of the 10-year spend and outcome trajectories…of the major preventable diseases such as diabetes.”

It may not, but I hope that that goes some way towards meeting the intent behind the shadow Minister’s new clause.

There is a somewhat different matter where public health programmes are commissioned directly by the NHS itself, in exercise of the Secretary of State’s public health functions. That is the case with, for example, national screening or immunisation programmes. These programmes are currently commissioned by NHS England but are rooted in expert advice from the UK National Screening Committee and the Joint Committee on Vaccinations and Immunisations respectively. NHS England is already prepared to report to the Secretary of State on its performance against these functions.

Were any of these functions to be delegated to ICBs to deliver in future, we would expect NHS England to clearly convey the requisite standards and performance expectations for those evidence-based programmes, and overall information about performance and effectiveness will be provided to the public.

In summary, there is a good deal of unity of aim and objective, but I fear there is a difference as regards methods. On that basis, I encourage the shadow Minister not to press the new clause to a Division.

[Alex Norris]

I share with the Minister the desire for a shift to prevention. My anxiety, from the Government action we have seen over the last decade, is that that is a rhetorical shift rather than a substantial shift in policy, and definitely not a substantial shift in resourcing. Nevertheless, the Minister’s answer on the documentation that NHS England will be asked to publish is a suitable substitute for a provision being on the face of the Bill. On that basis, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 63

Young carers’ needs assessments following hospitalisation

“In the Children Act 1989, after section 17ZC, insert—

‘17ZCA Young carers’ needs assessments following hospitalisation

(1) An NHS trust or NHS foundation trust must ascertain during hospitalisation whether a patient when discharged will be cared for primarily by a young carer.

(2) Where an NHS trust or NHS foundation trust ascertains that a patient when discharged will be cared for primarily by a young carer then the NHS trust or NHS foundation trust must give the local authority where the patient lives notice that a young carer will require a needs assessment.

(3) The local authority receiving notice under subsection (2) must carry out a needs assessment, and in doing so must—

(a) ascertain whether it is appropriate for the young carer to provide care, and

(b) identify what support or services need to be in place for safe discharge of the patient.

(4) The needs assessment required by subsection (3) must be conducted before the patient is discharged.’”—(Karin Smyth.)

This new clause would ensure that the needs of young carers are assessed before a patient who they care for can be discharged.

Brought up, and read the First time.

--- Later in debate ---

The new clause would not, of course, resolve all the issues with support for carers and young carers, but it would go some way to plugging a known gap and making sure that there is an opportunity for young carers to be identified in a systemic way that ensures support is delivered.

[Edward Argar]

It is a pleasure to see you in the Chair this morning, Mr Bone. The new clause would introduce a requirement for an NHS body to notify the relevant local authority once it had identified that a young carer had primary responsibility for caring for a patient on discharge. The local authority would be required to carry out a young carer’s needs assessment before discharge to establish the appropriateness of the young carer providing care and what support should be in place to enable safe discharge.

I entirely understand the sentiment and intention behind the new clause, which the shadow Minister and the hon. Member for Bristol South set out very clearly. We have touched on the importance of this issue in previous debates about carers. Young carers often do not even realise that they are carers. They undertake their caring responsibilities, go to school, come back again and undertake caring responsibilities again. They are arguably some of those most in need of support and identification. These young people are essentially having caring responsibilities for a loved one, family member or friend thrust on to their shoulders at a very early age. However, I am not convinced that the cause is best advanced by the new clause and I will try to explain why. In her response, the hon. Member for Bristol South may agree or say she is unconvinced by my explanation, as is her right.

Existing legislation already requires local authorities to carry out an assessment of need for all young carers on request or on the appearance of need. That assessment must consider whether it is appropriate or excessive for the young carer to provide care for the person in question, in the light of the young carer’s needs, wishes and circumstances. Regulations already provide a detailed framework, including the matters to be considered in such assessments and the skills of the person undertaking it.

As members of the Committee will be aware, the discharge clause in the Bill, which we debated some days ago, revokes the existing requirements for hospitals to issue assessment and discharge notices as part of the discharge process for adults, because they contribute to lengthy discharge delays. The current requirements trigger local authority duties to assess the person’s long-term social care needs, prior to the person’s discharge. We know delayed discharges have a negative impact on patient outcomes.

My concern about the wording of the new clause is that making young carers’ assessments a requirement of discharge would risk reimposing further significant delays, at a time when supporting the safe hospital flow of patients has never been more important. I am also unclear how such an assessment system would be enforced.

Current discharge guidance clearly sets out that, as part of discharge planning, consideration must be given to any young people in the household who have caring responsibilities or may have some on discharge. Guidance states that they may be entitled to a young carer’s needs assessment or to benefit from a referral to a young carers service.

We will work with the Department for Education to ensure that protections for young carers are reflected in new statutory discharge guidance, accepting the sentiment behind the new clause. That will include setting out as part of the discharge planning process how young carers should have a needs assessment arranged, where appropriate, before a patient for whom they provide care is discharged. That is the more appropriate way to capture or operationalise, for want of a better way to put it, the sentiment behind the hon. Lady’s new clause. It is up to her whether she feels that that is sufficient, but I have set out our response to the new clause she proposes.

[Karin Smyth]

The Minister will not be surprised to hear that I do not think that is sufficient. I will not press the matter to a vote, but, as my hon. Friend the Member for Ellesmere Port and Neston said, when it comes to things being on request it is problematic, and that is the crux of the matter, as in the guidance that the Minister read out. I understand the need for hospitals to not have lengthy discharges—and it is not good for the patient—but sorting out the hospital’s problem on the backs of young people and carers is not a good message that we want to send from here.

I appreciate that the Minister in his final comments said that this would be very much part of the thinking about discharges, but we should also remember that these young people have really had the most shocking experiences in the last two years with covid, and are already—again, as my hon. Friend said—falling massively behind. Added to the destruction from covid, many young carers live in some of the most disadvantaged families, really keeping those families together, so they are further left behind.

On the Minister’s exhortations to the service and local government, it would be helpful to further underline the strength of those, and I am sure that most of the Committee feel that. Young carers have had probably the worst of times during covid and for them now to have to shoulder more responsibility because of the discharge problem and the need to get people out quickly would further exacerbate the situation. They need more help, not less, and I hope that that will be communicated back to the service. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 65

Review of the surgical consultant appointment process

“The Secretary of State must review the National Health Service (Appointment of Consultants) Regulations 1996 and its most recent guidance and, within six months of the passage of this Act, publish a report on the surgical consultant appointment process.”—(Justin Madders.)

This new clause requires a review of the legislation which governs the NHS surgical consultant appointment process.

Brought up, and read the First time.

--- Later in debate ---

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I rise to speak to new clause 70 and in support of new clause 65. I agree with the shadow Minister that these are very much technical new clauses to correct an anomaly. There are three royal colleges of surgeons in the UK: the Royal College of Surgeons of England, the Royal College of Surgeons of Edinburgh and the Royal College of Physicians and Surgeons of Glasgow. Consultant surgeons may be appointed from among the fellows of any of the three colleges. The exams they sit and the qualifications they carry are considered absolutely equal.

The challenge when recruiting a new consultant, as the shadow Minister highlighted, is that the appointment panel, which must review the job description and take part in the interview, is limited purely to those who have graduated with their fellowship from the English college. The appointment panels have a mix of representatives from local organisations, specialty bodies, if it is a specialty surgical appointment, and the royal colleges, so while fellows of all the royal colleges may be involved in appointments to English trusts as specialty representatives—such as breast cancer, which was my specialty—some are excluded from being college representatives. It is often really challenging to bring these panels and committees together.

The aim of the new clause is simply to widen the pool of assessors available to trusts in England and, indeed, as the shadow Minister highlighted, to foundation trusts. It is simply an anomaly that two of the colleges in the UK are not included. The new clause aims to correct that and to make the appointment of new consultants easier for trusts and foundation trusts in England. I hope that the Minister will accept both the spirit and the detail of new clause 70.

[Edward Argar]

I am grateful to hon. Members for bringing this issue before the Committee: I think we have all received correspondence on it from the various royal colleges. New clause 65 would amend the Bill so as to require that a review is undertaken of the National Health Service (Appointment of Consultants) Regulations 1996 and its most recent guidance. It is important that the regulations governing consultants and the accompanying guidance ensure that prospective consultants are highly capable and safe to practise while not hindering effective recruitment.

The current regulations govern the appointment of all consultants to NHS trusts and special health authorities. Reviewing the regulations only in relation to surgeons would risk diminishing consistency in the regulations. We believe the current regulations ensure consistent standards across all specialties. Those regulations are kept under review, and we therefore do not believe that this new clause would improve what already exists under the current policy. Similarly, responsibility for reporting on recruitment practices relating to a specific specialty would fall to the royal colleges rather than the Department. Should the royal colleges recognise an issue with recruitment and appointment to a particular specialty, the Department would expect the relevant royal college to report on that, which we would always consider in detail.

New clause 70, tabled by the hon. Member for Central Ayrshire, would amend the National Health Service (Appointment of Consultants) Regulations 1996 to confer authority on the Royal College of Surgeons of Edinburgh, the Royal College of Physicians and Surgeons of Glasgow and each of their associated dental faculties to sit on the panel concerned with the appointment of consultants in England. I sympathise with that. The Government agree that including those colleges would potentially be significantly advantageous. However, the challenge is that the National Health Service Act 2006 stipulates that consultation with affected parties must be undertaken before any changes to these regulations can be made. As such, our concern is timing: it would go against normal practice and not necessarily be appropriate to make such a change without consulting the relevant parties.

[Dr Whitford]

I have no objection to the need to consult. The Royal College of Physicians and Surgeons of Glasgow would indeed like section 2(1) of the regulations changed so that its members could be involved in the appointment of consultant physicians. I was unable to consult with the Royal College of Physicians of Edinburgh in time to allow the new clause to include that. I totally recognise that there is a role for consultation in order to get the change to those regulations right. However, surely with such legislation going through, this is the opportunity to agree to correct this anomaly, and therefore make appointments of new consultants in English trusts simpler.

[Edward Argar]

I think that is where the hon. Lady and I slightly diverge; we do believe that it is right that we follow the normal process of consultation before bringing any changes forward. I hope, in my final paragraphs, I can give her a little reassurance in respect to her intent. I hope that I can reassure her that, although the Royal College of Surgeons of Edinburgh and the Royal College of Physicians and Surgeons of Glasgow are not formally named in the regulations as relevant colleges in relation to the appointment process, the regulations do not prevent trusts from seeking alternative members to contribute to the process. That does provide discretion to involve these colleges where appropriate.

My further reassurance, which I hope will go some way towards satisfying the hon. Lady, is that the letters and requests came in relatively late in the Committee’s proceedings: I will undertake to review that request with my officials. I will look at whether what we have already got is sufficient, or whether there is merit there that does not require that consultation and those changes—

[Dr Whitford]

rose—

[Edward Argar]

I have one sentence to go, so the hon. Lady gets in just in time.

[Dr Whitford]

A trust could include other members of the panel, but they could not be recognised as the Royal College representative. That is often one of the challenging roles, because the panel cannot go ahead if it does not have a Royal College representative.

[Edward Argar]

I hope I can reassure the hon. Lady that in respect of the specific request that the two Royal Colleges have made, I will take that away, look at it and consider whether it works now, or whether there is something we can do. That will be either in this legislation, or following consultation, via another mechanism to address the underlying issue that they have drawn to our attention.

[The Chair]

I call Dr Justin Madders.

--- Later in debate ---

[Alex Norris]

I beg to move, That the clause be read a Second time.

This new clause would put responsibility on integrated care boards to take the lead on tackling malnutrition in their community. We spoke about malnutrition in the context of hospital food standards, and we were not able to move the Minister to extend those hospital food standards to other care settings. I thought that was a shame, and I hope the Government will continue to look at the issue. I want to broaden the conversation on malnutrition to try, via another way, to improve the standing of our communities.

Malnutrition is a serious condition that occurs when a person does not get the energy or vitamins that their body requires to function properly. It affects at least 3 million people every year, and it costs the health and social care system £23.5 billion each year. The condition is particularly common amongst certain groups. Those groups are: older people; hospital patients; people in mental health units and care homes; people living in sheltered housing; and those living with chronic diseases, such as cancer. Malnutrition can seriously threaten patients’ health. Hospitalised malnourished patients are three times more at risk of infection than the well-nourished, while hospital patients at high risk of malnutrition are 12 times more likely to die early than those at no risk. It is a very significant issue. Unfortunately, the figures are not moving in the right direction. The number of adults being admitted to hospital with malnutrition has more than doubled in the last decade—that is the bill for austerity. The evidence is clear that malnutrition impacts a wide range of people in different health settings; again, those are hospitals, mental health units, care homes and sheltered housing. It has a knock-on effect on other conditions.

Earlier this year, the media reported the death of a young disabled woman after a routine operation. Her death was partially caused by malnutrition, and the coroner said there had been a gross failure of care in managing her nutrition. A July 2021 report on malnutrition called it a widespread yet historically overlooked and undertreated issue in the NHS and social care, and attributed that to two factors that block progress—a lack of understanding, and a lack of systematic leadership. The new clause seeks to address that at a local level, which is why we think it is a good one.

The tragic case that I have mentioned shows how important it is to have a clear strategy to tackle malnutrition, to have designated leads and to have targets and co-ordinated policy. The Government say that integrated care boards are about ensuring proper integration between health staff and community services, and this is a really good example of a way in which that could be done. I am keen to hear the Minister’s assessment of the new clause, which should be included in the Bill. We have a significant issue that we are not addressing and that is getting worse, so what are we going to do differently?

[Edward Argar]

We recognise and know that malnutrition can be a significant problem that can be both a cause and a consequence of ill health. We remain committed to improving the NHS and public health systems, which is helping to improve health and secure early diagnosis of major diseases, tackling some of the root causes of malnutrition. That is backed by the development of the outcomes frameworks covering public health, the NHS and social care, and the development of specific disease outcome strategies.

Individuals, carers and professionals all have a role to play in tackling malnutrition, and there are tools and guidance in place through a range of organisations to help health and social care professionals identify and treat the problem of malnutrition, and to access appropriate training. I note that e-learning modules are currently in place through the Royal College of General Practitioners and the managing adult malnutrition in the community pathway, which was set up by a multidisciplinary group and is widely endorsed by professional bodies aimed at healthcare professionals.

I hope I speak for the whole Committee when I say that we all agree that the NHS can play a vital role in protecting vulnerable people. As part of that, it should have strategies and processes in place for supporting patients and vulnerable people in the community who are at risk of malnutrition. I hope I can reassure the Committee that placing in the Bill a formal duty on ICBs to develop a separate strategy is not strictly necessary, as there is a range of ongoing activity across health and care.

As we have previously discussed, there are already significant existing duties, and duties proposed in the Bill, to prepare plans, including joint local health and wellbeing strategies made at a local authority level by health and wellbeing boards, the integrated care strategy that is to be developed by the integrated care partnership, and the forward plan that is to be developed by the integrated care board. All those plans should be informed by local joint strategic needs assessments, or JSNAs. All the strategies can, where appropriate, consider malnutrition and populations at risk of malnutrition. We have previously debated the range of guidance available to inform thinking on both JSNAs and strategic plans, and we will of course work with NHS England to consider whether it is necessary to include specific references to malnutrition in the guidance.

Should the Bill pass into statute, we expect clinical commissioning groups and ICBs to consider the needs of patients and vulnerable people in their communities, including people who may be at risk of malnutrition. That includes working across health and social care partners to undertake needs assessments on malnutrition, and developing and implementing a work plan to maintain high standards of nutrition through integrated pathways of care. NHSEI’s enhanced health in care homes implementation framework sets out best practice guidance for primary care networks and others in relation to hydration and nutritional support for care home residents. The framework supports the implementation of minimum standards in relation to enhanced health in care homes in the Network Contract Directed Enhanced Service for 2020-21.

The malnutrition task force has also published a series of guides offering expert advice on the prevention of and early intervention in malnutrition in later life, which will support health and care bodies. Alongside that, we have published an independent review of hospital food, which made recommendations for addressing malnutrition in hospitals, and a review of what works in supporting older people in the community to maintain a healthy diet. This “what works” review included a range of examples of good practice at local authority level that others can learn from, and we have provided in the Bill for powers to impose requirements on hospital food standards.

We are helping to raise awareness of malnutrition among individuals and carers through the nhs.uk website, and through the NICE quality standard on malnutrition, which gives a clear and authoritative statement of a quality service. There are ongoing inspection requirements, including for unannounced inspections of health and care settings by the Care Quality Commission, which will continue to ensure expected standards are met.

The new clause would place a requirement on ICBs to have a malnutrition lead. The Bill intentionally allows for flexibility in the make-up of ICBs above the minimum membership requirements that we have previously debated in Committee. They could, if they wished, include condition-specific officers, but we do not want to bind their hands by specifying that they must. That once again returns to the permissive versus prescriptive thread that has run through many of our debates.

However, I do see a huge opportunity for ICPs to consider how best to improve services for people at risk of malnutrition through better partnership and joint working and planning of services, given the complementary services that the NHS and local authorities offer in this context. The new Office for Health Improvement and Disparities is committed to improving the diet of the population and supporting people to maintain a healthy weight.

I hope I have given the Committee some reassurance that we are taking this issue extremely seriously and are committed to enabling the NHS and the wider health and care system to effectively tackle malnutrition.

[Alex Norris]

I was a little surprised to hear the Minister defend the status quo. The state of play in this country is not good enough and is getting worse, so I dare say that more of the same will beget more of the same. The Minister said that the new clause was not necessary because of the range of ongoing activity, but I reiterate that what is happening is not sufficient and is not addressing this really important issue.

The two areas for development that were offered were local prioritisation through integrated care strategies and the Office for Health Improvement and Disparities. They are obviously relatively new actors in this space, so it is probably right that we give them time to see whether, as the Minister says, they will prioritise this, choose to make it a top-rated issue and do something about it. I am very sceptical of that, and I suspect that we will be back at this sooner rather than later. However, in the meantime, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 67

Review of the capacity of the dental laboratory sector

“The Secretary of State must within six months of the passage of this Act publish a report assessing the capacity of the dental laboratory sector in the UK to meet the needs of patients.”—(Alex Norris.)

This new clause would require the Secretary of State to review the capacity of the UK’s dental laboratory sector.

Brought up, and read the First time.

--- Later in debate ---

[Dr Whitford]

I rise to support new clause 68, which is linked to new clause 67. We are aware of the impact of the pandemic, particularly on dentistry. Using a drill on someone’s teeth generates aerosols in their mouth, and that would vastly increase the risk of spreading covid to the dental staff, or to any patient who entered the space soon afterwards. Despite that impact, there has not been significant funding from the UK Government for the dental industry in England to fund the establishment of ventilation and air purification systems. The Scottish Government have committed £5 million specifically for this. As the hon. Member for Nottingham North highlighted, the pandemic impact comes on top of an underlying issue, the core of which is the 2006 dental contract in England and Wales, which breaks provision down into units of dental activity. It does not reward preventive dentistry. It does not reward any practice for taking on someone who already has dental issues, because it will not be properly funded for that.

Out of that comes the failure to focus on child dental health and making sure that this generation of young children grow up with good dental health. Scotland set up Childsmile in 2007, and Wales set up Designed to Smile in 2011. There is plenty of data from both of these programmes to show that providing free dental treatment to children—along with supported tooth brushing at school, fluoride coating and so on—can decrease caries found in children in primary school and at the beginning of secondary school.

Poor dental health has a big impact on general health and self-confidence, yet we hear repeated reports of families and children struggling to access an NHS practice. In the last five years, NHS practice numbers in England have dropped by over 1,250. BDA surveys suggest that almost half of remaining NHS practices are planning to reduce their NHS commitment over the next 12 to 24 months. There was a promise that the contract would be changed by next April, and 100 practices have been trialling a new method of contract. According to the BDA, it has been warned of a return to using units of dental activity from next April. This would be an enormous missed opportunity to improve NHS dental access for everyone, and particularly to take the further step of ensuring that every child in England does not just have access to a dental practice, but is involved, as they grow up, in a programme promoting good dental health.

[Edward Argar]

As ever, I am grateful to hon. Members for highlighting issues relating to new clauses 67 and 68 for debate.

I reassure the Committee that the Government continually assess the capacity of the dental laboratory sector in the UK. It is an important issue, as was highlighted by the shadow Minister, and one we already take seriously. However, it is not necessary to include a specific report requirement, especially as that could focus activity away from addressing the recovery of activity in the sector.

As colleagues will know, and as the hon. Member for Nottingham North set out clearly, dentistry has been significantly impacted throughout the pandemic due to the specific risks associated with aerosol-generating procedures, as the hon. Member for Central Ayrshire set out. The steps we have had to take during the pandemic to ensure the safety of dental patients and staff has led to a reduction in the number of NHS patients who can be seen, although activity continues to grow quarter on quarter. This reduction in NHS dental activity, including for band 3 treatments such as crowns, bridges and dentures, has had a knock-on effect on the laboratory sector. The Government recognise this, and we are already taking steps to secure the capacity of the sector.

First, throughout the pandemic, dental laboratories, where eligible, have been able to access a range of financial support that Her Majesty’s Treasury has made available to private-sector businesses and individuals affected financially by covid-19. Dental laboratories that satisfied the eligibility criteria were able to access financial support through the coronavirus business interruption loan scheme and bounce back loans. In addition, up to September 2021, technicians and lab workers had been able to access the coronavirus job retention scheme, known colloquially as the furlough scheme. The recovery loan scheme, now open until 30 June 2022, supports access to finance for UK businesses as they recover from the pandemic.

During the pandemic, we carefully considered the impact on the sector, including on dental laboratories and their important role, partly through work led by the chief dental officer. We continue to work closely with all relevant parts of the sector. I am happy to confirm that officials from the Department, together with the chief dental officer and others, will be happy to again meet representatives from the dental laboratory sector to better understand their concerns on capacity, what they are seeing in terms of the recovery of their business and trade, and what further action may be needed as we work to recover from the pandemic and safely increase levels of dental activity, for patients, the profession and the industry surrounding it.

Secondly, we are committed to building and maintaining a robust dental workforce and appreciate the important role played by laboratory technicians as part of that. In September, Health Education England released their “Advancing Dental Care” review, which provides recommendations on the reform of education and training for dental care professionals, including dental technicians.

Although this is not directly in my portfolio of responsibilities, I have asked officials to work closely with HEE on the recommendations and actions of this report, including, where it falls into my area of work more broadly, how apprenticeship places for clinical dental technicians are developed, based on an assessment of the role they could play in the delivery of NHS care. The Government are therefore already taking action to help secure the capacity of the dental laboratory sector and ensure it continues to meet the needs of patients in this country.

I turn to new clause 68. It would require the Secretary of State to publish a statement on measures taken to ensure universal access to NHS dentistry. In addition to the actions I have highlighted, I assure the Committee that this Government are taking action to ensure access to NHS dentistry and, again, I do not consider it necessary to include a requirement to make a statement on this issue on the face of the Bill.

[Dr Whitford]

rose—

[Edward Argar]

I will give way to the hon. Lady—not least so that I can have a glass of water.

[Dr Whitford]

That is not the least of my reasons for intervening. Rather than just stating that the Government are taking action, does the Minister plan to explain what action they will be taking?

[Edward Argar]

The hon. Lady is psychic, because I was just turning to that.

[Dr Whitford]

I am only thinking of the Minister’s welfare.

[Edward Argar]

I am very touched by her medical concern for my welfare.

In light of the reduction in activity within dentistry due to the pandemic, dental practices have been asked to deliver as much care as possible, with their first priorities being urgent care, care for vulnerable groups and for children, and then delayed planned care. I put on the record my gratitude to the profession for its hard work and efforts during this time, and I am pleased to note that the levels of urgent care being delivered have now returned to pre-pandemic levels, because of the over 700 urgent care centres established in practices to improve access for people during the pandemic. Throughout the pandemic, we have worked closely with NHS England and NHS Improvement to consider the level of NHS dentistry that can be delivered safely. Activity thresholds for full renumeration are based on data showing what is achievable while maintaining compliance with infection prevention and control measures.

The pandemic has reinforced the fact that transformation in NHS dentistry is essential. As has been alluded to, NHSEI is leading ongoing work on reforming the current dental system, working with a wide range of stakeholders and system partners. We acknowledge that, even before the pandemic and the imposition of limitations that it necessitated, access to NHS dentistry was sometimes a challenge in some areas and for some people. Putting that right will require action to both reform contractual arrangements and ensure that there are trained and qualified dental teams providing NHS services throughout the country.

Since the announcement in March that NHSEI is leading on the next stage of dental system reform, it has continued to work closely with system partners and stakeholders, including the British Dental Association in particular. The NHSEI dental system reform will deliver against a number of fundamental aims, including delivering improved health outcomes, an increased focus on preventive dental work, affordability for patients, and recognising that changes need to be supported by the profession. Making the NHS dental contract more attractive to the profession is a key part of helping with vital recruitment and retention. I know that will be particularly welcome to hon. Members from rural and coastal areas, as it has been highlighted that there is a particular challenge in some of those communities.

A key objective of this work is to improve patient access to NHS care, with a specific focus on addressing inequalities. We will set out our proposals in that area next year, in addition to the provisions in this Bill that will allow the Secretary of State to expand water fluoridation schemes. In addition, Health Education England’s “Advancing Dental Care” programme will, over the next four years, deliver its blueprint for change to reform education and training, develop skills, enable modernised flexible working, and widen access and participation among the workforce.

Together, we believe these measures will address the key challenges that impede the delivery of NHS dentistry, and improve patient access to NHS care. The Government will carry on with this essential work, and will continue co-operating with HEE and external stakeholders on this important issue. For that reason, I ask—possibly in vain—that the hon. Member for Nottingham North considers withdrawing the new clause.

[Alex Norris]

I am grateful to colleagues for their contributions. I am particularly glad that the hon. Member for Central Ayrshire brought up units of dental activity, which are a Treasury way of understanding activity, not a public health way of understanding oral health. Although they are effective for setting balanced budgets on an annual basis, they are really bad for saving money—in fact, they have cost money. There is broad consensus that UDAs are long out of date, and that after 15 years, it is time to move away from them.

Dealing with new clause 68 first, I was glad to hear the Minister at least suggest that this is an active process, because it was the first sign I have seen that the move away was not just a conceptual one. On that basis, I will not press the new clause to a Division, because we will not prejudge that process. However, I gently say that we really need to get on with this, because lots of dentists are waiting on the outcome of that process before making their judgment as to whether or not NHS dentistry is in their future. I was also glad to hear the Minister acknowledge that the system was not good enough before the pandemic. In response, I would say that removing a third of the real-terms funding was perhaps a significant reason why it was not very good anymore, and in future the answer may lie in tackling that point.

Turning to new clause 67, I was of course glad to hear the Minister say that this issue is being taken seriously. However, I was not clear on what “taken seriously” means beyond the existing support there is for businesses generally, not least because dentists have operated in this half space of still being open but not having the fullest demand on their order books, which has often meant that they have fallen between stools. However, I think the offer of that meeting is better than the new clause and, on that basis, I will pursue the route of that kind offer. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 69

National lead for policy related to allergies

“Within 6 months of the passage of this Act the Secretary of State must direct NHS England to designate a national lead for policy related to allergies.”—(Alex Norris.)

This new clause brings in a requirement for the Secretary of State to ensure the appointment of a NHS England allergy lead.

Brought up, and read the First time.

[Alex Norris]

I beg to move, That the clause be read a Second time.

New clause 69 is very important indeed. It requires the Secretary of State to direct NHS England to appoint a tsar to lead on policy related to allergies.

In 2016, 15-year-old Natasha Ednan-Laperouse tragically lost her life after suffering an allergic reaction to a Pret A Manger baguette. Since then, her parents have campaigned tirelessly to ensure that her death was not in vain and to stop other parents and loved ones having to suffer as they are suffering. They set up the Natasha Allergy Research Foundation and their campaigning has already successfully led to Natasha’s law, which was implemented just last month and requires food retailers to display full ingredient and allergen labelling on foods made on premises and prepacked for direct sale. That is a tremendous achievement, and it will make a significant difference to lots of people. I have met the Ednan-Laperouse family, with their MP, my hon. Friend the Member for Hammersmith (Andy Slaughter); they are inspiring people and tremendous campaigners. The new clause is very much in the spirit of their latest campaign—I certainly would not bet against them.

The World Health Organisation has described allergic disease as a “modern epidemic”, while Allergy UK estimates that up to 21 million people in the UK are affected by allergies. Allergic disorders can have a detrimental impact on patients’ quality of life, as they not only have the obvious health effects, but can mean that social interactions that others take for granted—such as eating out, or even going to work—are a major health risk. Allergies can be complex: patients can suffer from several disorders at the same time, each triggered by different allergies.

In the 20 years to 2012, hospital admissions for anaphylaxis rose by 615%. Despite that, allergies are not particularly high up the political agenda for conversation and there is a perception of poor management across the NHS due to a lack of training and expertise. At the root of that is the fact that we have a very small number of consultants in adult or paediatric allergy and the fact that GPs receive basically no training in allergy.

Following the inquest into the death of Shanté Turay-Thomas—another tragic teenage death—the coroner highlighted the lack of a national allergy lead in her prevention of future death report, which was sent to the Department of Health and Social Care. I think today is a chance to make good on that, and I would be very interested to hear what the Minister has to say on those suggestions. Natasha’s foundation, with the support of Shanté’s mother, subsequently made the call for an allergy tsar.

Two weeks ago, the all-party parliamentary group on allergy, in conjunction with the National Allergy Strategy Group, launched its report, “Meeting the challenges of the National Allergy Crisis”. The report

“calls for an influential lead for allergy to be appointed who can implement a new national strategy to help the millions of people”

suffering. There is a real coming together across our communities of people in this space calling for this measure, and this the moment to do it.

Otherwise, as I have suggested, NHS allergy services will continue to get little attention, little prominence and little investment. Care is patchy and we know that people deserve much better support. An allergy tsar would act as a public champion for those with allergies, helping to deliver a national plan to join up GP and hospital services so that patients have a consistent and coherent NHS care pathway, and helping to promote the training of more specialist allergy doctors, consultants and GPs. It would make a difference to millions of people. I hope that the Minister will look upon the new clause favourably and give the answer that millions of people are waiting for.

[Edward Argar]

As the shadow Minister set out, the new clause would place a statutory responsibility on the Secretary of State, requiring him or her to direct NHS England to appoint an allergy lead. The shadow Minister rightly highlighted that tragic case that demonstrated to the country the issues and challenges in this space. I entirely sympathise with the intent of the hon. Gentleman, but I hope I can provide him with some reassurance that the amendment is not necessary, because NHSE is already able to appoint an allergy lead, or allergy tsar—call it what you will.

There is no specific national clinical director or specialty adviser for routine allergy services, but I am advised that NHS England and NHS Improvement keep their clinical leadership, including the national clinical director and national specialty adviser roles, under review to ensure alignment with the strategic priorities of the NHS and need. I am sure that NHSE will reflect carefully on the points made by the hon. Gentleman, and I will undertake to acquire a copy of the Hansard to pass on to NHS England and request that it considers the points he made in this context.

I also recognise that, more broadly, it is vital that NHS England and commissioners receive appropriate clinical advice in this area. That is currently provided by the clinical reference group for specialised immunology and allergy services. The CRG covers specialised treatment of certain immunological and allergic conditions. The allergic conditions include severe, complex and/or rare sub-groups. People with allergies continue to be supported through locally commissioned NHS services but, to support patients with more complex conditions, NHSE also directly commissions some specialist services. To support the implementation of coherent care pathways, NICE has also published guidance on a range of allergy conditions, including food allergy in under-19s, anaphylaxis and drug allergy.

We therefore do not believe that the new clause needs to be included in the Bill. Notwithstanding whether the hon. Gentleman decides to press it to a Division, I undertake to ensure that his comments and the case he makes for the role are passed on directly to NHS England. NHSE already has the power, should it wish to exercise it, to put such a person in post.

[Alex Norris]

I am grateful for that offer. I hope that when NHS England has a chance to consider what has been discussed in Committee, that will generate an offer to meet campaigners to understand what they are after and, we hope, to move positively on it. Beyond that, I am afraid that the Minister’s answer was too much in defence of a status quo that does not work for too many people for me to accept it. In the spirit of elevating the matter up the political agenda and creating that blinking light on someone’s dashboard to generate action, I will press the new clause to a vote.

Question put, That the clause be read a Second time.

--- Later in debate ---

[The Chair]

The final question that I must put is that I report the Bill, as amended, to the House.

[Edward Argar]

On a point of order, Mr Bone. Craving your indulgence, may I take this opportunity as we complete the lengthy passage of this legislation through Committee to put on the record our gratitude to the Clerks of the Committee, to the Hansard team and to the Doorkeepers? I also thank you and your fellow Chairs, and colleagues on the Committee. It would be remiss of me not to put on the record my gratitude for the amazing work done by my officials in the Department in preparing the Bill and in helping us to be ready to take it through the detailed scrutiny that has rightly happened in Committee. Thank you, Mr Bone.

[The Chair]

Thank you for that bogus point of order.

Health and Care Bill

Edward Argar Excerpts

Report stage
Monday 22nd November 2021 Commons Chamber

[John Stevenson (Carlisle) (Con)]

I rise to support the amendments in my name: 110, 111, 112 and 113. I draw the attention of the House to the fact that I have a significant number of food and drink manufacturers in my constituency, and that I chair the all-party parliamentary group for food and drink manufacturing. I also support the amendments tabled by my hon. Friends the Members for North East Bedfordshire (Richard Fuller) and for Buckingham (Greg Smith), and fully support and endorse their comments.

In reality, I and many others would have preferred clause 125 and the whole of schedule 16 to have been removed from the Bill. I and I think many others are not convinced that that is really the way forward or that it will achieve very much. That view is shared by many of my colleagues, but also by many in the advertising industry and the food and drink sector. That is not because they are against the Government’s attempts to respond to the challenge of obesity, which is and should be a concern for all of us, but because their impact is likely to be so insignificant that it is disproportionate to what is proposed. We should also remember that the industry has already done a huge amount. It is incredibly innovative—reformulation, reductions in salt and sugar—and the reductions we have already seen are very significant. The industry continues to make changes and I believe it will continue to do so in the future. We should also remember that there is something called personal responsibility.

There is an opportunity, however, for compromise and improvements to schedule 16—hence the various amendments that have been tabled. I very much hope that the Government will be willing to compromise in their approach and see the benefits of the amendments that stand in my hon. Friends’ names and mine. I do not intend to detain the House for long, because my amendments are primarily technical rather than anything greater.

I tabled amendments 111, 112 and 113 because I believe that we want a food and drink manufacturing sector that is competitive and is based in the UK as much as possible. As presently drafted, the Bill exempts certain businesses, but the criteria are based on UK employee numbers. Large multinational companies could therefore be exempt if the UK element of their business has under 250 employees; conversely, a UK business with 250-plus employees would not be exempt. That has the potential to be unfair in many respects to UK businesses from a competition perspective, and could lead them to divert manufacturing abroad. A simple solution would be to take account of turnover as well as staff numbers. I have suggested using the definition in section 465 of the Companies Act 2006, which I believe would deal with the situation.

Under the Bill, paid-for branded adverts for products that are high in fat, salt or sugar would be prevented on retailer-owned spaces, but retailers would still be able to advertise equivalent HFSS own-brand products. That could distort competition directly between retailers’ and manufacturers’ products. Amendment 110 would ensure a level playing field, which in my view would be much fairer.

I hope that the Government will be receptive to my amendments—if not now, via changes introduced in the other place. In anticipation of such a compromise, I do not intend to put them to the vote.

[The Minister for Health (Edward Argar)]

I am grateful for this evening’s debate. More than once during the passage of the Bill, I have put on the record the Government’s commitment to improving and protecting the public’s health and have paid tribute to the hard work and dedication of our NHS and public health professionals in rising to the greatest infectious disease challenge of modern times. I would again like to put on the record those important points, with which I know Opposition Front Benchers agree.

Our commitment to public health is clear in the Bill, in the proposals set out in the Government’s recently published plan for health and care, “Build Back Better”, and in our wider programme of public health reform. A focus on the prevention of avoidable diseases is a central principle in delivering a sustainable NHS and in levelling up health outcomes across the country.

Childhood obesity is one of the biggest health challenges that this nation faces. The latest data from the national childhood measurement programme revealed that approximately 40% of children leaving primary school in England were overweight or living with obesity.

[Catherine West]

The Minister is being generous in allowing interventions. Is the Bill silent on the challenge around prescriptions for exercise? In an earlier intervention, I mentioned the impact of school swimming. Unfortunately, we are going backwards: fewer 11-year-olds can swim 25 metres—that is just an example. On childhood obesity, we need to address both: not just diet, but exercise.

--- Later in debate ---

[Edward Argar]

I am grateful to the hon. Lady, with whom I worked in London local government many moons ago on issues not dissimilar to those that we are debating. The Bill focuses on diet and the obesity that it causes, but she is right to highlight that exercise and a healthy lifestyle also play a key role in tackling obesity. We do not believe that the Bill is the right place to put that role into legislation, but I join in the sentiment underpinning what the hon. Lady says. Schools, local authorities and health bodies need to consider the issue in the round.

Nearly two thirds of adults—64%—are also overweight or living with obesity. I am grateful to my hon. Friend the Member for North East Bedfordshire (Richard Fuller) for gently tempting me to respond to his points about the nanny state, but I would argue that it is not being a nanny state to look out for the health of our citizens. Yes, it is about giving advice and giving people the information to make informed judgments, but it is also about putting in place a proportionate framework in legislation.

As with the speech of my hon. Friend the Member for Harrow East (Bob Blackman), I did not agree with everything that the hon. Member for Central Ayrshire (Dr Whitford) said, particularly her concluding comments, but I listened carefully to her comments about seatbelts. She said that she, as a clinician, saw the impact that legislation on that public health and public safety measure had on reducing injuries.

[John Stevenson]

Does the Minister agree that the industry itself is doing an awful lot now to support the Government’s agenda? Does he also acknowledge that personal responsibility is very important?

[Edward Argar]

I wondered what I was about to have bowled at me there, but my hon. Friend is absolutely right. I entirely agree that a huge amount of progress has been made; we believe that we need to go further with our proposals, but he is right to highlight that progress. He is also right to highlight the relevance of the central role of personal responsibility and the decisions that we and our families all take.

To meet the ambition of halving childhood obesity by 2030, it is imperative that we reduce children’s exposure to less healthy food and drink product advertising on TV and online. We want to ensure that the media our children engage with the most promote a healthy diet. The Bill therefore contains provisions to restrict the advertising of less healthy food and drink products on TV, in on-demand programme services and online.

[Richard Fuller]

The Minister has just mentioned seatbelts, and earlier he talked about alcohol and cigarette smoking, but this is about porridge and muesli. There is a sense that there is no end to what the Department of Health and Social Care feels is its responsibility to legislate on for what people should be able to do for themselves and their family. My point is that this is overreach by the state, as well as perhaps being the incorrect process for achieving the Government’s aims.

[Edward Argar]

I know my hon. Friend well and entirely understand the perspective that he brings, but I would argue as a counterpoint that the Bill strikes a proportionate balance, in the same vein as with seatbelts and other issues. Alongside personal choice and giving people the information to make choices, I believe that it is a proportionate and balanced approach—not the thin end of the wedge, as he might suggest, although perhaps I am characterising his words unfairly.

[Dr Julian Lewis (New Forest East) (Con)]

Will the Minister give way?

[Edward Argar]

May I make a little more progress? I have more to say on obesity, so my right hon. Friend should not worry.

We held two consultations, the first in 2019 and the second in 2020, which have informed our policy on introducing further restrictions to the advertising of less healthy food and drink products. I welcome the devolved Administrations’ engagement and support for the policy, which is being brought forward UK-wide. The UK Government have engaged with them extensively on the matter since early 2021; I put on the record my gratitude for the spirit in which they have approached it.

[Dr Lewis]

I happen to agree that there is a question of proportionality on the alleged nanny state issues, but does my hon. Friend agree that where an issue is contentious—such as the fluoridation of water supplies, which has been contentious over many years in this House—it should be properly debated before the state takes control of it, not just tucked away at the end of a very long Bill? That causes me concern.

[Edward Argar]

I take my right hon. Friend’s point, but I would argue that we are placing the matter before the House in a Bill that has been debated and has gone through its stages, including one of the longest Committee stages of a Bill in my time in this House. There is, or was, the opportunity for Members to table amendments on Report on the aspect that he mentions, and I suspect that it will be extensively debated in the other place as well. I take his point, but I would argue that we have provided sufficient time and have brought the issue to the House in that way.

[Dr Lewis]

Would the Minister be as surprised as I was to know that quite a lot of Members of this House are completely unaware that that provision has been added at the end of the Bill?

[Edward Argar]

All I would say—without in any way implying any criticism of right hon. or hon. Members—is that soon after I entered the House I was a member of the Procedure Committee for a year, and one of the first pieces of advice I was given was to read the legislation and go through it in its entirety. I recognise that this is a long and complex piece of legislation, but I would make that point.

Telecommunications and internet services are reserved matters. The UK Government are clear about the fact that the primary purpose of provisions on the advertising of less-healthy food and drink for TV and internet services is to regulate content on reserved media, and on that basis the policy is reserved. The purpose is not incidental. Therefore, the provisions do not fall within the competence of the devolved legislatures or engage the legislative consent process. While the Scottish and Welsh Governments have agreed with our policy ambitions, they disagree with our legal assessment, and thus far we have had to agree to disagree on this matter, but we have had extensive engagement, and I suspect that we will continue to do so. I see that the hon. Member for Central Ayrshire is in her place, and while she is present I would like to thank both Governments for their engagement and offer my assurances that it will continue as we implement the policy for the benefit of citizens across the UK.

--- Later in debate ---

[Sir John Hayes (South Holland and The Deepings) (Con)]

It was my hon. Friend the Member for North East Bedfordshire who inspired my intervention. I just want the Government to make it clear that they are not contributing to a strange paradox which seems to prevail in modern society, that of being simultaneously more puritanical and more prurient. We are prurient in that we let the tech giants corrupt our children in all kinds of ways, and puritanical in that we are censorious about the jokes people tell, the language they use, and how much ice cream—or indeed Christmas cake—they eat.

[Edward Argar]

I am grateful to my right hon. Friend. It has been a while since he intervened while I was at the Dispatch Box, so this has been a pleasure. I have never seen him as in any way a puritan; I suspect that he is rather more a cavalier in his approach to life.

My hon. Friend the Member for North East Bedfordshire has also tabled amendments to schedule 16 which would insert in the Bill an exemption from the advertising restrictions for brand advertising. I am grateful to him, but I can reassure him that the Bill already delivers that exemption, and I therefore believe that his amendments are not necessary to achieve the effect that he seeks. We made that clear in the consultation response published in June this year, and in speeches made in Committee.

My hon. Friend has also tabled new clause 14. As I am sure he and other Members are aware, the Government consulted on different approaches for restricting online advertising in 2019, and considered alternatives submitted through the consultation process. However, it was felt that the alternatives, including the proposal from the Committee of Advertising Practice to use a self-regulatory mechanism based on targeting, were sufficiently similar to the policy options previously consulted on. These were not sufficient to meet the objective of the policy, namely to protect children from advertisements for less-healthy food and drink.

[Alun Cairns]

Does the Minister accept that there is a significant inconsistency between the approach to television broadcasters and the approach to those who use social media and online provision, and that a consistent approach would help? Does he also accept that a considerable array of views has been expressed by those seeking to help him to develop the Bill in a positive way, and will he maintain an open mind as it passes through the other place to establish whether it can be refined to achieve some of these objectives?

[Edward Argar]

I hope I can reassure my right hon. Friend, and other Members, that I always seek to maintain an open mind, and always seek to reflect carefully on the contributions made by Members. I will turn shortly to the challenges posed by television, which is essentially a linear broadcasting medium, in comparison with those posed by online broadcasting. I am conscious that I must conclude my speech before 7 pm.

There is evidence to suggest that the targeting of online adverts does not account for the use of shared devices and profiles between parents and children, the communal viewing of content or false reporting of children’s ages. This, combined with concerns about the accuracy of interest-based targeting and other behavioural data as a way of guessing a user’s age and a lack of transparency and reporting data online, shows why the Government believe that we need to introduce strong advertising restrictions online. Any alternative proposals would therefore need to meet a high bar in terms of protecting children online, and we consider alternatives that rely on a targeting approach to be—currently—potentially insufficient to meet the policy objectives.

Amendments 106 to 109 are relevant to the point that my right hon. Friend has just made. I am grateful to my hon. Friend the Member for Buckingham (Greg Smith) for raising these matters. His amendments mean that liability for online advertisements found to be in breach of the restrictions included in the Bill would shift to become the responsibility of the platforms rather than the advertisers, which some may see as providing parity with the enforcement mechanisms for broadcast television.

During the 2020 consultation, we considered whether other actors in the online advertising sphere should have responsibility for breaches, alongside those of advertisers. However, we concluded that this was not the right place to consider that broader issue.

The online advertising ecosystem is complex and dynamic. The scale and speed of advertising online, as well as the personalised nature of advertising and the lack of transparency in this system, makes it difficult for platforms to have control over what is placed on them. The approach that we are taking in the Bill best aligns with the current enforcement frameworks across TV, online and on-demand programme services advertising, and is familiar to industry. It will ensure that there is limited confusion for broadcasters, platforms or advertisers, as the liable parties for less-healthy food and drink product advertising breaches will be the same as those for any other advertising breaches. The Government intend to consider this issue as part of the wider online advertising programme, on which the Department for Digital, Culture, Media and Sport will consult in the coming months.

[Greg Smith]

I am grateful to the Minister for that commitment to consider the points in my amendments, and with that commitment in place, I will not seek to push them to vote. However, may I ask him, as he makes these considerations along with colleagues in the DCMS, to ensure that broadcasters are fully consulted so that they can point out the loopholes that any online provisions could throw up?

[Edward Argar]

I am grateful for my hon. Friend’s confirmation that he does not intend to press his amendments to a Division, and I will ensure that his point will be heard not only in the Department of Health and Social Care but in DCMS as well.

I am grateful to my hon. Friend the Member for Carlisle (John Stevenson) for his amendments 111 to 113 and for bringing this debate before the House. I would like to reassure him that small and medium-sized enterprises—businesses with 249 employees or fewer—that pay to advertise less healthy food and drink products that they manufacture and/or sell will be exempt from the less healthy food and drink restrictions and can continue to advertise. The definition of SMEs will be provided in secondary legislation and not on the face of the Bill, which will enable Ministers to act promptly in future years if new or emerging evidence suggests that amendments are needed. We will conduct a short consultation as soon as possible on the SME definition to be included in the draft regulations. The Government want to ensure consistency with other definitions for size of business that have been used for other obesity policies, such as the out-of-home calorie labelling policy, to create a level playing field. Our preferred definition, therefore, is a standard definition used by Government across other policies.

[Richard Fuller]

On the point about an industry-led alternative, on which the Minister has kindly made some comments today, I think that this discussion will continue, particularly when the Bill is considered in the other place, so would he be prepared to meet me so that I can continue to make representations about certain improvements that could be made?

[Edward Argar]

I am certainly happy to commit that either I, as the Bill Minister, or the relevant policy Minister will meet my hon. Friend to discuss his views in this space.

Amendment 110 would ensure that advertisements placed on distributor or retailer websites are out of scope of the less healthy food and drink advertising restrictions. Again, I am grateful to my hon. Friend the Member for Carlisle for tabling the amendment, and I would seek to reassure him that the Government’s intention is to ensure that restrictions are proportionate to the scale of the problem. It is not our intention to prohibit the sale of less healthy food and drink products on the internet. Our aim is to reduce children’s exposure to advertisements of less healthy food and drink products, which is why the restrictions are being applied only to paid-for advertising online—namely, where an advertiser pays by monetary or other reciprocal means for the placement of adverts online.

We appreciate that there will be consumers who seek less healthy food and drink products, which is why this restriction applies only to paid-for advertising, and companies will be able to continue to use owned media in the same way as they do now. The restrictions will not apply to spaces online where full editorial control and ownership apply, such as a brand’s own blog, website or social media page. This means that retailers are able to continue promoting their own products on their own website, as this would not be covered by the restrictions.

I shall turn briefly to Government amendments 32, 35 and 37, tabled in the name of the Secretary of State for Health and Social Care. Amendments 32 and 35 will amend the definition of an advertisement placed on television and on-demand programme services to ensure that sponsorship credits around programmes and sponsorship announcements respectively are included for the purpose of this Bill. Members will be aware that sponsorship announcements and sponsorship credits are required so that viewers know which product is sponsoring any particular programme. Although these are not routinely considered to be advertisements in other contexts, the Government’s view is that they could reasonably be considered to be advertising less healthy food and drink products for the purposes of the Bill’s restrictions.

Amendments 32 and 35 will therefore clarify the status of those announcements, in effect to prohibit identifiable less healthy food and drink products from sponsoring programmes before the watershed, in line with the Government’s original policy aims. Amendment 37, meanwhile, will make it clear that UK businesses producing online advertisements intended to be accessed principally by audiences outside the UK fall in scope of the exemption and will not be in breach of the less healthy food and drink advertising restrictions set out in the Bill. This amendment is needed to ensure that the legislation aligns with the Government’s policy intention to exempt advertisements made to be viewed outside the UK. We are confident that the likely frontline regulator already has a clear remit and tests in place that should allow it to apply this exemption effectively.

--- Later in debate ---

[Christian Wakeford]

I reiterate the comment I made earlier that the best way to treat alcohol addiction and dependency is to treat it like a mental health illness, because that is what it is. The best way to do that is to remove the stigma and put more money into mental health, but in trying to overcome the stigma, we need to ensure that there is parity between mental and physical health. If we treat the mental health issue, we treat the alcohol issue. We cannot do one without the other. Will the Minister commit today to going some way towards doing that and to putting more money into mental health to deal with this?

[Edward Argar]

I am grateful to my hon. Friend. He will know that this Government have continued not only to highlight and promote parity of esteem between mental and physical health but to increase the funding available to mental health, reflecting that reality on the ground. He is right to highlight that issue.

We have announced a comprehensive set of reforms to alcohol duty in this year’s Budget which, taken with the steps we have put in place on a public health basis, have put in place a strong regime to tackle the consequences of alcohol misuse. We do not feel that this Bill is the place to legislate further on this issue but, as I have said, I am none the less grateful to the hon. Member for Liverpool, Walton for his amendments and for this opportunity to debate them.

On amendments 11, 12 and 13, this Bill would introduce a 9 pm TV watershed for less healthy food and drink products and a restriction on paid-for advertising of less healthy food and drink online. Those amendments, tabled by the hon. Member for Liverpool, Walton, would expand the definition of a less healthy product to include alcohol. This would have the effect of making alcohol advertising liable to the watershed proposed for TV programme services and the online restriction on paid-for advertising.

I reassure the hon. Gentleman, through Opposition Members, that the Government have existing measures in place to protect children and young people from alcohol advertising through the alcohol advertising code. Material in the broadcast code and the non-broadcast code relating to the advertising and marketing of alcohol products is already robust, recognising the social imperative of ensuring that alcohol advertising is responsible and, in particular, that children and young people are suitably protected. If new evidence emerges that clearly highlights major problems with the existing codes, the Advertising Standards Authority has a duty to revisit the codes and take appropriate action. Furthermore, the Government introduced additional restrictions last year on alcohol advertising on on-demand programme services, through amendments to the Communications Act 2003.

Clause 129 and schedule 16 are aimed at reducing the exposure of children to less healthy food and drink advertising and the impact of such advertising on child obesity. Less healthy food and drink products—

[Jonathan Edwards]

Will the Minister give way?

[Edward Argar]

I fear that I have only a few minutes left, and I have already taken a number of interventions on this. I want to conclude by covering the tobacco amendments as well, which I know that some colleagues are keen to see a response to. I apologise to the hon. Gentleman.

Less healthy food and drink products are not age restricted at the point of purchase, unlike alcohol. Finally, the 2019 and 2020 consultations on advertising restrictions for less healthy food and drink did not consult on alcohol within the restrictions, either online or on TV, so we cannot be sure of the impact these amendments would have on the industry more broadly.

Turning to tobacco in the time I have left, because I know the shadow Minister, the hon. Member for Nottingham North (Alex Norris) , has taken a close interest in the issue, I thank the hon. Member for City of Durham (Mary Kelly Foy) and others, including my hon. Friend the Member for Harrow East, who have tabled a number of amendments that seek to address the harm caused by smoking in this country. I reassure the hon. Member for City of Durham of the Government’s commitment to becoming smoke free by 2030.

We have successfully introduced many regulatory reforms over the past two decades, and the UK is a global leader in tobacco control. Our reforms include raising the age of sale from 16 to 18, the introduction of a tobacco display ban, standardised packaging and a ban on smoking in cars with children, which all place important barriers between young people and tobacco products. The Government are currently developing our new tobacco control plan, and I reassure the hon. Lady that that will reflect carefully on the APPG’s findings and report.

I am afraid I cannot be tempted to go further than the Under-Secretary of State for Health and Social Care, my hon. Friend the Member for Erewash (Maggie Throup), did in the recent Westminster Hall debate on this question, but I can reassure the hon. Member for City of Durham that we remain committed to bringing forward the tobacco control plan.

[Geraint Davies]

rose—

[Edward Argar]

Forgive me; I only have a few minutes and I want to cover the amendments from the hon. Member for City of Durham. The hon. Member for Swansea West (Geraint Davies) did manage dexterously to shoehorn air quality more broadly within the scope of these debates, and what he said will have been heard.

New clause 2, which seeks to provide powers for the Secretary of State to impose a requirement for tobacco manufacturers

“to print health warnings on individual cigarettes and cigarette rolling papers”,

is intended, as I understand from the hon. Member for City of Durham, to further strengthen our current public health messaging and encourage smokers to quit. We strongly support measures to stop people smoking, to make smoking less attractive to young people and to educate smokers of its dangers, as we have done through graphic warnings on cigarette packs.

We would need to conduct further research and build a further robust evidence base in support of any such additional measures before bringing them forward. To date, no country has introduced such a measure, so there is currently limited evidence of its impact in supporting smokers to quit. If evidence showed that the requirement would not be effective, it would not be an appropriate power to have in place.

New clause 3, also tabled by the hon. Lady, seeks to provide a power for the Secretary of State to introduce a requirement for manufacturers to insert leaflets containing health information and information about smoking cessation services into cigarette packaging. As I set out in Committee, we believe this power is unnecessary, since the Department could legislate to do that already under the Children and Families Act 2014; inserts could be required for public health messaging through amendments to the Standardised Packaging of Tobacco Products Regulations 2015. We already have in place strong graphic images and warnings of the health harms of smoking on the outside of cigarette packs. As part of the Tobacco and Related Products Regulations 2016, the address for the NHS website, which provides advice for people seeking to quit smoking, is also required on packaging.

The current SPoT regulations prohibit the use of inserts, as there was limited evidence that placing public health messaging inserts inside cigarette packages was more effective than messaging on the outside of packs. Further research would need to be undertaken to help to establish the public health benefit if we were to go further.

Turning briefly to new clause 4, I am grateful again to the hon. Lady for tabling this clause. The Government are clear that they only support the use of e-cigarettes as a tool for smokers who are trying to quit, and we strongly discourage non-smokers and young people from using them. We are committed to ensuring that our regulatory framework continues to protect young people and non-smokers from using e-cigarettes.

Current regulations include requirements on the packaging and labelling of e-cigarettes, along with restrictions on their marketing and the prohibiting of advertising on mainstream media such as TV and radio. While we strongly support measures to protect young people further from cigarettes, we believe the current regime remains appropriate and has the powers in place within it to make changes where required, although I suspect my hon. Friend the Member for Harrow East may yet be proved right when he suggests that the other place may return to this at some point.

I have outlined the many steps this Government are taking to address some of the major lifestyle challenges to our health. The Bill represents another step in the direction of preventive healthcare and building a healthier society, an aim I know we all share. I hope the House will support the amendments we have tabled at this stage to strengthen those measures.

I also want to update the House at this point, in the context of the importance of an integrated approach and how it can improve public health measures, on two steps the Secretary of State has taken today that will put NHS staff and technology at the heart of our long-term planning and allow us to take forward the integrated approach that has proved so vital during this pandemic and is so vital to public health.

[Geraint Davies]

Will the Minister give way?

[Edward Argar]

I am afraid I will not. I suspect that point will be pertinent to the debate on the first group of amendments tomorrow.

First, we intend to merge Health Education England with NHS England and NHS Improvement, putting education and training of our health workforce at the forefront of the NHS. By bringing this vital function inside the NHS, we can plan more effectively for the long term and have clear accountability for delivery.

Secondly, we also intend to take forward the recommendations of the Wade-Gery report, which included merging NHSX and NHS Digital with NHS England and NHS Improvement, building on the huge progress made on digital transformation during the pandemic and bringing together the digital leadership of the NHS in one place. I take this opportunity to pay tribute to all our colleagues at Health Education England, NHS Digital and NHSX for their exceptional work. These changes build on that contribution and allow us to drive forward further integration and changes that will put the NHS on a firmer footing.

I hope I have reassured hon. Members of the Government’s commitment to improving public health. I urge those who have tabled amendments to consider not pressing them to a Division.

[Mary Kelly Foy]

I have listened carefully to the debate, and I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 4

Packaging and labelling of nicotine products

“The Secretary of State may by regulations make provision about the retail packaging and labelling of electronic cigarettes and other novel nicotine products including requirements for health warnings and prohibition of branding elements attractive to children.”—(Mary Kelly Foy.)

This new clause would give powers to the Secretary of State to prohibit branding on e-cigarette packaging which is appealing to children.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Edward Argar]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dame Rosie Winterton)]

With this it will be convenient to discuss the following:

New clause 33—Support provided by the NHS to victims of domestic abuse—

“(1) Each Integrated Care Board must—

(a) assess, or make arrangements for the assessment of, the need for support for victims of domestic abuse using their services;

(b) prepare and publish a strategy for the provision of such support in its area;

(c) monitor and evaluate the effectiveness of the strategy;

(d) designate a domestic abuse and sexual violence lead; and

(e) publish an annual report on how it has discharged its duties relating to the provision of services to victims of domestic violence under the Care Act 2014.

(2) An Integrated Care Board that publishes a strategy under this section must, in carrying out its functions, give effect to the strategy.

(3) Before publishing a strategy under this section, an Integrated Care Board must consult—

(a) any local authority for an area within the relevant Integrated Care Board’s area;

(b) the domestic abuse local partnership board appointed by the local authority for an area within the relevant clinical commissioning group’s area under section 58 of the Domestic Abuse Act 2021; and

(c) such other persons as the relevant local authority considers appropriate.

(4) For the purposes of subsection (4), ‘local authority’ means—

(a) a county council or district council in England; or

(b) a London borough council.

(5) An Integrated Care Board that publishes a strategy under this section—

(a) must keep the strategy under review;

(b) may alter or replace the strategy; and

(c) must publish any altered or replacement strategy.

(6) The Secretary of State may by regulations make provision about the preparation and publication of strategies under this section.

(7) The power to make regulations under subsection (7) may, in particular, be exercised to make provision about—

(a) the procedure to be followed by an Integrated Care Board in preparing a strategy;

(b) matters to which an Integrated Care Board must have regard in preparing a strategy;

(c) how an Integrated Care Board must publish a strategy;

(d) the date by which an Integrated Care Board must first publish a strategy; and

(e) the frequency with which an Integrated Care Board must review its strategy or any effect of the strategy on the provision of other provision in its area.

(8) Before making regulations under this section, the Secretary of State must consult—

(a) all Integrated Care Boards; and

(b) such other persons as the Secretary of State considers appropriate.”

This new clause would require Integrated Care Boards to publish a strategy for the provision of support for victims of domestic abuse using their services and designate a domestic abuse and sexual violence lead.

New clause 55—Guidance for babies, children and young people—

“(1) The Secretary of State must publish guidance on how integrated care systems should meet the needs of babies, children and young people aged 0-25.

(2) Integrated care systems must act in accordance with the guidance in subsection (1).”

This new clause would require the Secretary of State to publish guidance on how integrated care systems should meet the needs of babies, children and young people aged 0-25 and would require integrated care systems to act in accordance with the guidance.

New clause 57—NHS England’s duty as to reducing inequalities—

“Section 13G of the National Health Service Act (duty as to reducing inequalities), is amended by the addition of the following subsections—

‘(2) NHS England must publish guidance about the collection, analysis, reporting and publication of performance data by relevant NHS bodies with respect to factors or indicators relevant to health inequalities.

(3) Relevant NHS bodies must have regard to guidance published by NHS England under this section.

(4) In this section “relevant NHS bodies” means—

(a) NHS England,

(b) integrated care boards,

(c) integrated care partnerships established under section 116ZA of the Local Government and Public Involvement in Health Act 2007,

(d) NHS trusts established under section 25, and

(e) NHS foundation trusts.’”

Amendment 47, in clause 6,  page 4, line 11, at end insert—

“(5) In paragraph 1(a) ‘relevant public body’ means a public authority listed under the title ‘Health, social care and social security’ in Part 1 of Schedule 19 to the Equality Act 2010 or an NHS Trust.”

This amendment provides that NHS England resources for supporting or assisting organisations that are providing or planning to provide health services may only be directed to public sector bodies.

Amendment 58, in clause 12, page 8, line 6, at end insert—

“(2) An integrated care board may not—

(a) delegate that function; and

(b) exercise that function to enter into an integrated care provider contract with any body other than a statutory NHS body.

(3) In paragraph (2)(b) an ‘integrated care provider contract’ has the same meaning as in Schedule 3A of the National Health Service (General Medical Services Contracts) Regulations 2015.”

This amendment is designed to ensure that an organisation carrying out the functions of an ICB on its behalf is a statutory NHS body.

Amendment 59, page 12, line 29 at end insert—

“(3A) Nothing in——

(a) the rules referred to in subsection (1),

(b) this Act, or

(c) any regulations made under this Act

(none) shall entitle any provider of health services to withhold provision of those services from any individual on the basis of the integrated care board to which that individual has been allocated.”

This amendment is to ensure that any providers of health services cannot withhold provision of those services from any individual because of the integrated care board that they have been allocated to.

Amendment 66, in clause 15, page 13, line 44, at end insert—

“(j) palliative care services.”

This amendment adds a requirement for the commissioning of palliative and end of life care services.

Amendment 21, page 14, line 43, at end insert—

“3AA Duty of integrated care boards to commission approved treatments

‘(1) This section applies where—

(a) a treatment has been approved by the National Institute for Health and Care Excellence, and

(b) an integrated care board has not arranged for the provision of that treatment under section 3 or 3A of this Act, and

(c) a clinician has recommended that treatment for a person for whom that integrated care board has responsibility.

(2) The integrated care board referred to in subsection (1) must arrange for the provision of that treatment to the person for whom it has responsibility.

(3) In subsection (1) “clinician” means a medical professional employed by or acting on behalf of an NHS Trust, NHS Foundation Trust or primary care service from whom the integrated care board has arranged for the provision of services.’”

This amendment would require an integrated care board to arrange for the provision of a NICE-approved treatment to any patient whose NHS clinician has recommended it, even if that treatment is not otherwise available to patients in that ICB area.

Amendment 48, in clause 19,  page 16, line 6, leave out “promotes” and insert

“secures the rights set out in”.

This amendment requires ICBs to act to ensure that health services are provided in a way which secures the rights set out in the NHS Constitution.

Amendment 99, page 16, line 34, at end insert—

“(2) In fulfilling their duties under this section, integrated care boards must have particular regard to the need to reduce inequalities between migrant and non-migrant users of health services.”

Amendment 49, page 16, line 37, leave out “promote” and insert “enable”.

This amendment, together with Amendment 50 provides that ICBs enable the involvement of patients, their paid and unpaid carers, and their representatives in decisions relating to the prevention or diagnosis of illness, care or treatment, rather than promoting their involvement.

Amendment 50, page 16, line 37, after “their”, insert “paid and unpaid”.

This amendment, together with the Amendment 49, provides that ICBs enable the involvement of patients, their paid and unpaid carers, and their representatives in decisions relating to the prevention or diagnosis of illness, care or treatment.

Amendment 22, page 17, line 4, at end insert—

“14Z37A Obligation on integrated care boards to ensure appropriate uptake of all NICE approved products according to population need

‘(1) Each integrated care board must promote uptake of all NICE approved medicines and medical devices in accordance with the need of the population it serves.

(2) An integrated care board must, in each financial year, prepare a report on the uptake of all NICE approved medicines and medical devices, including the number of patients that have accessed each product.’”

This amendment would require ICBs to ensure that all NICE approvals are available and promoted to their population, and report on this uptake annually.

Amendment 19, page 17, line 14, at end insert—

“14Z39A Duty to review latest innovations with a view to local commissioning

(1) Integrated care boards must review all new—

(a) medicines,

(b) medical devices, and

(c) other health care solutions that may benefit the local population.

(2) Integrated care boards must—

(d) appoint a dedicated innovation officer to their board, and

(e) develop and maintain a system to keep up to date with medicines and devices innovation and review suitability for patient usage, including engagement with the relevant—

(i) academic health science network, and

(ii) local pharmaceutical committee.”

This amendment would mandate integrated care boards to monitor and assess innovation for the benefit of the local population.

Amendment 16, page 17, line 19, at end insert—

“(2) Each integrated care board must each year prepare, consult on and adopt a research strategy for patient benefit which—

(a) meets local need;

(b) meets national research undertakings.

(3) In developing a strategy under subsection (2), an integrated care board must engage with—

(a) the National Institute for Health Research,

(b) academic health science networks, and

(c) all other relevant regional and national health research organisations.”

This amendment would require ICBs to establish a research strategy and other connected measures.

Amendment 91, page 18, line 18, after first “the” insert “physical and mental”.

This amendment will require Integrated Care Boards to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness replicating the parity of esteem duty as introduced in the Health and Social Care Act 2012.

Amendment 92, page 18, line 23, after first “of” insert “physical and mental”.

This amendment will require Integrated Care Boards to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness replicating the parity of esteem duty as introduced in the Health and Social Care Act 2012.

Amendment 68, page 18, line 26, at end insert—

“(d) health inequalities.”

This amendment would modify the triple aim to explicitly require integrated care boards to take account of health inequalities when making decisions.

Amendment 17, page 18, line 38, at end insert—

“14Z43A Duty on integrated care boards to consider requests to engage in clinical trials, and patient participation

(1) An integrated care board must consider any request from the organiser of an authorised clinical trial for the ICB to engage in that trial.

(2) If such a request is accepted, the integrated care board must offer the ability to participate in the trial to any patient within their area who is eligible to take part.”

This amendment would require integrated care boards to consider any requests to engage in clinical trials and offer patients the opportunity to participate.

Amendment 20, page 18, line 38, at end insert—

“14Z43A Duty to update formularies to include all NICE-approved products

(1) Within 28 days of any medicine or device receiving market authorisation from NICE, an integrated care board must update its formulary to include that medicine or device.

(2) On receipt of notice of the market authorisation by NICE of any medicine or device, an integrated care board must immediately instruct providers of health and care services commissioned by the board to update their formularies in such a way that all NICE-approved medicines and devices are available to patients on the recommendation of a healthcare practitioner within 28 days of market authorisation.

(3) An integrated care board must report annually all medicines and devices that have been added and removed from their formulary over the previous year.”

This amendment would mandate integrated care boards and healthcare providers (e.g. hospital trusts) to update their formularies to include all NICE-approved medicines or devices within 28 days of market authorisation to ensure they are available for healthcare practitioners (e.g. physician or prescribing pharmacist) to make available for suitable patients.

Amendment 102, page 21, line 25, at end insert—

“(c) set out any steps that the integrated care board proposes to take to address the particular needs of victims of abuse (including domestic abuse and sexual abuse, whether of children or adults).”

This amendment requires the joint forward plan for an integrated care board and its partners to set out any steps it proposes to take to address the particular needs of victims of abuse (including domestic abuse and sexual abuse, whether of children or adults).

Amendment 51, page 22, line 23, leave out

“in a way that they consider to be significant.”

This amendment requires ICBs and partner NHS Trusts and NHS Foundation Trusts to consult on all revisions to their forward plans.

Amendment 52, page 23, line 42, at end add “on its website”.

This amendment is to require capital resource use plans to be made publicly available on the internet.

Amendment 53, page 24, line 22, leave out

“in a way that they consider to be significant”.

The purpose of this amendment is to require all revisions of capital resource use plans to be published.

Amendment 18, page 25, line 6, at end insert—

“(d) explain what research activity it undertook during the year, including

(i) research to meet local health issues, and

(ii) research to support national research projects.

‘(2A) The annual report prepared by the Secretary of State under section 247D of this Act must include a section which reproduces, and comments on, the sections of the annual reports of each integrated care board prepared under paragraph (1)(d).’”

This amendment would require integrated care boards to publish an account of their research activity, and require the report the Secretary of State must prepare and lay before Parliament under section 247D of the National Health Service Act 2006 to include a section which reproduces, and comments on, the research activity of all ICBs.

Amendment 23, page 25, line 14, at end insert—

“14Z56A Report on assessing and meeting parity of physical and mental health outcomes

(1) An integrated care board must annually set out in a report the steps it has taken to fulfil its obligations to deliver parity of esteem between physical and mental health to its local population.

‘(1) The report must set out—

(a) the number of patients presenting with mental health conditions,

(b) the number of patients presenting with physical health conditions,

(c) the number of mental health patients waiting for initial assessment,

(d) the number of physical health patients waiting for initial assessment,

(e) the number of mental health patients waiting for treatment,

(f) the number of physical health patients waiting for treatment,

(g) the number of mental health patients receiving treatment,

(h) the number of physical health patients receiving treatment,

(i) the number of patients readmitted to mental healthcare settings, and

(j) the number of patients readmitted to physical healthcare settings.

(2) The report must set out performance against nationally set standards in both physical and mental health.

(3) Each year the Secretary of State must lay before Parliament a consolidated report of all the reports made by integrated care boards under this section, and make a statement to each House of Parliament on the report.’”

This amendment would require an ICB to report on assessing and meeting parity of physical and mental health outcomes.

Amendment 15, in clause 20,  page 29, line 20, at end insert—

“(2A) The Secretary of State may by regulations make provision about representation of particular health, social care, and local interests, clinical fields, and types of health or care provision in the membership of integrated care partnerships.”

This amendment would enable the Secretary of State to make provision about the membership of integrated care partnerships.

Amendment 100, page 29, line 22, at end insert—

“(4) A member of the Integrated Care Partnership may not work for, be the representative of or hold financial interest in any private company delivering or seeking to deliver health and care services or services supporting the health and care sector or producing or seeking to produce health and care products, with the exception of general practitioners.”

This amendment seeks to ensure that Integrated Care Partnerships are made up wholly of representatives from public sector organisations and that private companies are not represented on them.

Amendment 1, page 29, line 45, at end insert—

“(c) fully integrate the promotion of everyday wellbeing, self-care for minor ailments and the management of long-term conditions into local health systems.”

This amendment would ensure that everyday wellbeing, self-care for minor ailment and management of long term conditions are integrated and promoted into local health systems.

Amendment 2, page 30, line 3, after “services” insert

“including services provided by pharmacists for minor ailments”.

This amendment would ensure that integrated care partnerships include in a strategy its views on how health-related services, including provision for self-treatable conditions, are integrated into health and social care services in that area.

Amendment 69, in clause 23,  page 35, line 32, at end insert—

“(5) NHS England must publish guidance on the means by which an integrated care board, NHS trust or NHS foundation trust which believes its capital resource limit or revenue resource limit risks compromising patient safety may object to the limit set.”

Amendment 114, in clause 25,  page 37, line 27, at end insert—

“(2A) The priorities set by the Secretary of State under subsection (2)(a) must include priorities relating to leadership, the integration of services and the quality and safety of services.”

The Secretary of State has the function of setting priorities for the Care Quality Commission in carrying out assessments in relation to integrated care systems. This amendment requires the Secretary of State to set priorities relating to certain matters.

Amendment 61, in clause 64, page 59, line 27, leave out from beginning to end of line 28.

This amendment is to ensure that a commissioner cannot also be a provider.

Amendment 62, in clause 69, page 63, line 30, leave out “may” and insert “must”.

This amendment makes it a requirement that regulations make provision in relation to the procurement by relevant authorities of (a) health care services for the purposes of the health service in England, and (b) other goods or services that are procured together with those health care services.

Amendment 63, page 63, line 36, leave out “may” and insert “must”.

This amendment makes it a requirement that regulations make provision in relation to (a) general objectives of procurement, and (b) procurement processes.

Amendment 64, page 63, line 39, leave out “may” and insert “must”.

This amendment along with Amendment 65 makes it a requirement that regulations make provision for the purposes of (a) ensuring transparency and fairness in relation to procurement, and (b) ensuring that compliance can be verified, or managing conflicts of interest.

Amendment 65, page 63, line 41, leave out “or” and insert “and”.

This amendment is to make it a requirement for regulations to make provision to ensure both transparency and fairness in relation to procurement.

Amendment 9, page 64, line 1, at end insert—

“(3A) The regulations must provide that—

(a) there is a presumption—

(i) in favour of contracts being awarded to NHS trusts and NHS foundation trusts, and

(ii) that integrated care provider contracts will not be awarded to a body other than to an NHS trust or an NHS foundation trust, except for under the provisions of paragraph (b);

(b) if an NHS trust or an NHS foundation trust does not consider that it is able, or does not wish, to provide certain services under a contract, it must publish its reasons;

(c) if paragraph (b) applies, the integrated care board must consult the public if it proposes to award any contract for those services to any body other than an NHS trust or NHS foundation trust;

(d) a consultation under paragraph (c) must—

(i) set out the responses of the integrated care provider to the reasons given by the NHS trust or NHS foundation trust under paragraph (b),

(ii) specify the proposed parties to and the full terms and conditions of the proposed contract, and

(iii) specify that the terms and conditions for staff under the proposed contract must be at least equivalent to NHS terms and conditions.”

This amendment would make NHS trusts and foundation trusts the default providers of NHS services.

Amendment 72, page 64, line 1, at end insert—

“(3A) The regulations must make provision in relation to the procurement of the services referred to in paragraph (1)(a) (other than primary medical services, primary dental services and primary ophthalmology services) that before any contract for a service with an annual value in excess of £5m may be awarded to an organisation that is not an NHS trust or NHS foundation trust—

(a) the business case for the award of the contract must be published;

(b) any responses to the proposal in the business case must be considered and published;

(c) the process for awarding the contract must be open and transparent and non-discriminatory at every stage, including (but not limited to)—

(i) procurement strategy and plan,

(ii) invitation to tender,

(iii) responses to invitations,

(iv) evaluation of tenders,

(v) decision to award, and

(vi) contract awarded;

(d) the process for awarding the contract must demonstrate due regard to the principles established in the Public Contracts Regulations 2015 (S.I.2015/102) or any regulations which may supersede them;

(e) in any case where it is claimed that an emergency justifies an award without the process being used then the responsible body must within 14 days publish the business case for the award of the contract and the record of the decision.”

Amendment 101, in schedule 2,  page 125, line 26, at end insert—

“(3) Members of an Integrated Care Board may not work for, be the representative of or hold financial interest in any private company delivering or seeking to deliver health and care services or services supporting the health and care sector or producing or seeking to produce health and care products, with the exception of general practitioners.”

This amendment seeks to ensure that ICBs are made up wholly of representatives from public sector organisations and that private companies, their employees and representatives, and those with financial interests in them, are not represented on ICBs.

Government amendments 25 to 28.

Amendment 76, page 126, line 26, at end insert—

“(d) at least one member nominated by the mental health trust or trusts that provide mental health services within the integrated care board’s area;

(e) at least one member nominated by the Directors of Public Health that serve each local authority within the integrated care board’s area;

(f) at least one member nominated jointly by any NHS trust, NHS foundation trust and local authority that provides social care services within the integrated care board’s area;

(g) at least one member nominated by the trade unions representing the health and social care workforce that serves the integrated care board’s area;

(h) at least one member appointed to represent the voice of patients and carers in the integrated care board’s area.”

Amendment 77, page 126, line 26, at end insert—

“(2A) The constitution must prohibit representatives of GP practices with active Alternative Provider Medical Services contracts from becoming members.”

This amendment would mean that the only GPs able to participate in Integrated Care Boards would be those whose practices are on the standard General Medical Services (GMS) contract.

Amendment 78, page 126, line 26, at end insert—

“(2A) Representatives of private providers of healthcare services, other than general practitioners who hold a contract for the provision of primary medical services in the area, may not be appointed to NHS decision-making boards, integrated care boards, or any place-based committee or sub-committee of the boards.”

Amendment 81, in schedule 2,  page 130, line 14, at end insert—

“(7) An integrated care board may enter into an externally financed development agreement in respect of any Local Improvement Finance Trust relevant to the area for which it has responsibility and receive the income related to that agreement.

(8) An integrated care board may enter into an externally financed development agreement in respect of any proposed Local Improvement Finance Trust relevant to the area for which it has responsibility.”

This amendment would enable integrated care boards to participate in existing and future LIFT schemes and to receive the income that would come to the local area from the local investment in such schemes.

Amendment 79, in schedule 3,  page 132, line 28, leave out “person” and insert

“general practitioner, GP partnership or social enterprise providing primary medical services”.

This amendment would prevent an integrated care board from entering into or renewing any Alternative Provider Medical Services (APMS) contract.

Amendment 80, page 132, line 32, leave out “person” and insert

“general practitioner, GP partnership or social enterprise providing primary medical services”.

This amendment would prevent NHS England from entering into or renewing any Alternative Provider Medical Services (APMS) contract.

Government amendments 29 and 30.

[Edward Argar]

New clause 49 has attracted a slightly fuller House than my previous speech did. This additional clause relates to the cap on care costs for charging purposes.

On 7 September, my right hon. Friend the Prime Minister took the bold step of publishing “Build Back Better: Our Plan for Health and Adult Social Care”. Successive Governments over decades have failed to tackle the reform of social care. This Government are delivering a package—package is the key—of reforms that will not only tackle the wider challenges faced by the adult social care system but reform how social care is funded to ensure that everyone, regardless of where they live or their level of assets, is protected from catastrophic costs. Let me remove all doubt on this issue: no one will lose from these reforms, compared with the system we have now, and the overwhelming majority will win.

Underpinning the reforms set out in the plan is an additional £5.4 billion over the next three years. That funding will end wholly unpredictable care costs and include at least £500 million to support the adult social care workforce. The reforms will make a real difference to the frontline of adult social care, including care users and the dedicated care workforce who have performed heroics throughout the pandemic. A crucial element of the reforms in the plan are the proposals to reform the existing social care charging rules.

[Damian Green (Ashford) (Con)]

I am grateful to the Minister for giving way so early in his speech. I am glad to hear him assert that no one will lose out and most people will win. Will he publish an impact assessment that will allow us to look at the detailed figures? As he will be aware, there is much commentary about the distribution of the possible losses, which seems to me to be an extremely important and sensitive issue for the Government to address.

[Edward Argar]

My right hon. Friend has long taken a close interest in this issue. In a moment, I will come to some of the figures and changes; I hear what he says about giving the House and the other place the information that they need and the aim is to do exactly that.

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[John Redwood (Wokingham) (Con)]

rose—

[Edward Argar]

I will make a little progress and then give way to my hon. Friend the Member for Basildon and Billericay (Mr Baron).

Currently, one in seven adults over 65 faces care costs of more than £100,000 over their lifetime. We are capping the amount that anyone will be forced to spend on personal care costs in their lifetime at £86,000. That is a seismic and historic change in the way we pay for care in England.

[Mr Baron]

The Government deserve credit for grasping this nettle, which has evaded Governments of both parties for too long, but he must understand that there is a real cause on the Government Benches in respect of the distribution of the relative losses and the worry that those who are less well off will be hit hardest by the Government’s new clause. Will he address that issue?

[Edward Argar]

I understand where my hon. Friend and Members from both sides of the House are coming from. This is the first major step forward in the reform of social care that we have seen in decades and must be seen as part of an overall package of changes.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

rose—

[Edward Argar]

I would like to make a little progress, if I may.

The reforms will make the existing means test far more generous. We are increasing the upper capital limit from £23,250 to £100,000, which will make masses of people with moderate assets eligible for some state support towards the cost of care earlier, and the lower capital limit will also increase, from £14,250 to £20,000. Below that level, people will contribute only from their income, fully protecting their savings and assets below £20,000.

Over recent days, people have compared our policy proposals to previous, abandoned and never-enacted proposals for reform. I am clear that our proposals will deliver the changes needed where others have failed and see a significant improvement on the system that is in place today.

[Barbara Keeley]

rose—

[Catherine West]

rose—

[Edward Argar]

We have considered what help people want and when they want it.

[John Redwood]

rose—

[Edward Argar]

My right hon. Friend rose earlier and I should have taken his intervention then; I hope he will forgive me.

[John Redwood]

I am grateful to the Minister. Will he confirm that the amount of tax that is going to be raised in the immediate future, in national insurance and then in a separate tax, will make up a relatively small minority of the total costs of public social care? Will he also confirm that none of these measures addresses the issue of the hotel costs that people need to pay when they go into care homes?

[Edward Argar]

My right hon. Friend is right to highlight that this is talking about personal care costs, so he is right in his point on that.

Did I see the hon. Member for Hornsey and Wood Green (Catherine West) rise earlier?

[Catherine West]

The Minister did indeed. He is being very generous in giving way. A lot of research went into the work by Mr Dilnot some time ago and a very independent assessment was made. Can he explain why, in this clause, he is going away from those recommendations and taking a fresh look at it?

[Edward Argar]

While the hon. Lady and I do not always agree on everything, she asks a perfectly a reasoned and measured question. I pay tribute to Andrew Dilnot’s work on his report. I just happen to think that, on this point, we diverged from what he proposed and we believe that what we are proposing is the right way forward. We have always intended for the cap to apply to what people personally contribute, rather than on the combination of their personal contribution and that of the state. It will mean that people with fewer chargeable assets meter towards the cap more slowly, because they are paying much less each week than people who are entirely self-funding. This amendment will make it simpler to understand the amount that will go towards the cap and make it fairer.

[Barbara Keeley]

rose—

[Jonathan Ashworth (Leicester South) (Lab/Co-op)]

rose—

[Edward Argar]

If the shadow Secretary of State will forgive me, the hon. Lady has attempted on a number of occasions to get in, so it is only fair that I give way to her.

[Barbara Keeley]

On the point the Minister is making about the Dilnot proposals and a comparison, let me tell him that the Alzheimer’s Society said that 15% of people with dementia in the north-west would reach the cap under the Government’s proposals, compared with 34% under Dilnot’s proposals. That is a massive amount, and those are the people, with their families, who are paying hundreds of thousands and pounds. That is the comparison.

[Edward Argar]

I am grateful to the hon. Lady. I do not think that she posed a question, but she made her point clearly, as she always does.

[Matt Hancock (West Suffolk) (Con)]

rose—

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

rose—

[Edward Argar]

If I may make a little progress, I will then give way to my former boss, the former Secretary of State, and then, if I have time, to my hon. Friend.

To reiterate, as my right hon. Friend, the Prime Minister, said on 7 September, nobody—nobody—will be “worse off” than under the current system. Currently, around half of all older adults in care receive some state support for their care costs. This will rise to roughly two thirds under these reforms. This clause would also make a number of minor technical amendments to other sections of the Care Act 2014.

[Jonathan Ashworth]

Will the Minister give way?

[Edward Argar]

Before I give way to the right hon. Gentleman, I will give way to the former Secretary of State.

[Matt Hancock]

Is not the right way to think about this change to consider the proposal in front of us and compare it with the current system? The reason that the Dilnot system, as previously proposed, was never put in place was that there was never a proposal to pay for it, whereas this package is paid for. That is why this Government have been able to deliver a package where no previous Government have been able to do so.

[Edward Argar]

I am grateful to the former Secretary of State. He is absolutely right. We deal in the reality and we should compare the reality of the system that we have in place now with what we have proposed here, which not only moves us forward, but is funded and sustainable.

[Sir Robert Neill]

Can my hon. Friend help me on two short matters? Can he give us an assurance that there will be no adverse impact on local government financing in relation to this, and that he will talk to the Local Government Association, if necessary, in this regard? Secondly, he says that it is part of a package. My right hon. Friend the Member for Ashford (Damian Green) referred to the impact assessment. Does he agree that it is only fair that, at the very least, we have an impact assessment before the Bill completes its passage through both Houses?

[Edward Argar]

Yes, of course, as we move through this reform process, it is absolutely right and vital that we work with our partners in the Local Government Association and local authorities of all political complexions. In respect of the impact assessment, I do believe that it is important that we have an impact assessment before this legislation completes its passage through both Houses.

[Jonathan Ashworth]

I am extremely grateful to the Minister. He is showing his typical courtesy in giving way. Many across the House are puzzled because we recall this document that the Government placed before the House when they asked the House to endorse the national insurance increase. Indeed, many Members did endorse that national insurance increase, even though they were breaking a manifesto commitment. This document actually says that it will introduce a care cap and

“deliver a core recommendation of the independent Dilnot Commission. It will be implemented using legislation already in place under the 2014 Care Act, which introduces the independent Dilnot Commission’s social care charging reform.”

It goes on to describe that as the “new cap”. Why have the Government moved away from the position of just a few months ago that they published ahead of a vote on increasing national insurance and moved to a policy now that disproportionately benefits those with greater assets, which surely cannot be fair?

[Edward Argar]

I am grateful to the shadow Secretary of State who, while I do not necessarily agree with what he says, as ever puts it courteously. We hold true to what we put in that “Build Back Better” document. It is necessary for this one particular element to see further primary legislation, hence the amendment today.

[Karin Smyth (Bristol South) (Lab)]

Will the Minister give way?

[Edward Argar]

I am afraid that I will not give way because I do need to make some progress.

[Karin Smyth]

Will the Minister give way on that point?

[Edward Argar]

I have been very generous with my time and to the shadow Front Bench, so forgive me, but no.

[Karin Smyth]

On that point, will the Minister please give way? Six weeks in Committee and not a mention.

[Edward Argar]

Forgive me, but no.

To reiterate, as my right hon. Friend the Prime Minister said on 7 September nobody—nobody—will be “worse off” than under the current system. Currently around half of all older adults in care receive some state support. This will rise to roughly two thirds under these reforms. On the minor technical amendments that I made to other sections of the Care Act, I would not wish to belabour each one, but I can reassure the House that those changes will ensure that the legislation works as intended and that everyone who is eligible—

[Karin Smyth]

Will the Minister give way?

[Edward Argar]

I will not give way. I want to make some more progress.

[Paul Bristow (Peterborough) (Con)]

Will my hon. Friend give way?

[Edward Argar]

I want to make a little more progress. I will not give way to one of my hon. Friends or to the hon. Lady at this moment.

This will be done by amending the provisions to clearly describe the information that must be included in a personal budget so that individual contributions count towards the cap at the local authority determined rate, and to ensure that personal budgets and independent personal budgets work as they were originally intended when being used in conjunction with the cap.

Before turning to integrated care boards, let me put it on record that, once again, this must be regarded as part of a package of measures that improves significantly on the current provision in place for those funding care.

[Philip Dunne (Ludlow) (Con)]

I am extremely grateful to my hon. Friend for giving way. Before we leave the subject of the cap, can he just confirm that this proposal includes the costs of domiciliary care, which had not been included under the original Dilnot proposals that are exercising Labour Members?

--- Later in debate ---

[Edward Argar]

My right hon. Friend is exactly right. I am grateful to him for giving me an opportunity to highlight that this improves in this respect on the Dilnot proposals. I put on record my tribute to Andrew Dilnot for his work, but we believe that this is a better package, and, as he highlighted, a sustainable package from a financial perspective.

[Karin Smyth]

Will the Minister give way. We have had six weeks in Committee.

[Edward Argar]

The hon. Lady implores me, saying that after six weeks of having to sit opposite me in Committee, the least I can do is allow her to intervene.

[Karin Smyth]

Several times in that Committee, I offered to help the Government in a cross-party way. The Minister has been dealt a bad blow here tonight, having to come here and defend this proposal. In those six weeks—I think 21 sessions—not one iota of this proposal was mentioned or brought forward. We all know about bad legislation, rushed legislation, and legislation that does not have the commitment on something so important. I have commended the Government for starting this conversation, but this is a poor legislation move. I am sure that Members here would support the Minister tonight if he were to withdraw this proposal, go back to the Chancellor and ask him to think again. We would all be behind him if he took that opportunity.

[Edward Argar]

I did wonder whether I would regret that intervention. It was typically courteous, although I have to say that when a Member of the Opposition says that, “We’re here to help you”, I am not always sure. [Interruption.] Of course, when the hon. Lady does it, I know that she is sincere about it. The point I make is that this important change is necessary to deliver on the pledge we have made. It is being introduced on Report. While ICBs and integrated care systems, which we will speak about shortly, are hugely important, I suspect that this matter will dominate the debate in this group on Report. Equally, I suspect that it will be fully debated and scrutinised in the other place.

[Paul Bristow]

Does the Minister agree that we have been on a journey? The context of this needs to be considered. We are starting a conversation, but other things will come. There will be bumps in the road, but the context that we need to consider is that this is the first Government to tackle the issue of social care in decades. That is the right way to look at this piece of legislation. It should not be looked at in a short-term way.

[Edward Argar]

I am grateful to my hon. Friend, a member of the Health and Social Care Committee, for his intervention. He makes the point well that this is another step on the journey, but it is a journey that only this Government have actually got round to starting. Previous Governments have failed to make that progress. The previous Labour Government produced two Green Papers, one Royal Commission, and one spending review and nothing was done, so this Government are making significant progress.

[Barbara Keeley]

Will the Minister give way?

--- Later in debate ---

[Edward Argar]

I have already given way to the hon. Lady, so I will not do so again.

I thank the hon. Member for Bristol South for her words, but the situation is not as she characterises it with my having been dealt a difficult or challenging hand this evening. I am proud to stand here and defend this Government as the first Government to make changes to tackle the social care challenges that this country faces.

[Paula Barker (Liverpool, Wavertree) (Lab)]

Will the Minister give way?

[Edward Argar]

I have given way a number of times and I want to make some progress. I will be winding up the debate, so hon. Members will have the opportunity to come back in then.

[Liz Kendall (Leicester West) (Lab)]

Will the Minister give way?

[Edward Argar]

I am afraid that I will not give way now.

[Jonathan Ashworth]

For Leicestershire!

[Edward Argar]

I did give way to the right hon. Gentleman, the shadow Secretary of State, and he is my other constituency neighbour in Leicestershire.

Let me turn to integrated care boards and integrated care partnerships. I remind the House of what my right hon. Friend the Secretary of State said on Second Reading. These bodies are critical for delivering the key aims of the legislation: reducing bureaucracy; supporting integration and collaboration; and improving accountability. At the heart of the legislation for these bodies is flexibility—giving systems the scope to shape structures according to their needs. This principle is widely supported across the NHS and local government, and we would not want to imperil that, which is why we will be resisting attempts this evening to constrain more tightly how ICBs and ICPs operate. However, we recognise that there are a number of points of clarification that would be helpful to include, and we have tabled a number of amendments to do just that.

Before we reach the meat of this section, there are a number of minor amendments to deal with. First, minor and technical Government amendment 29 will update a reference in the Health and Social Care (Community Health and Standards) Act 2003 to reflect the changes made to section 99 of the National Health Service Act 2006. Secondly, Government amendment 30 will designate integrated care boards as operators of essential services under the Network and Information Systems Regulations 2018. This will place requirements on ICBs to protect their network and information systems by managing risks to ensure service availability and prevent patient harm.

We expect ICBs to take decisions on IT investment, including on cyber-security, and owning systems—and the associated cyber-risk—that are critical to the provision of healthcare. This includes holding the shared care record. The loss or corruption of data from the shared care record could have clear implications for the delivery of care, and for wider public trust in the digitisation and data-sharing agenda. We must take this risk seriously, and assure ourselves that ICBs are doing so as well.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

May I take the Minister back to new clause 49, very briefly? He is right to point out that some measures that he has brought forward are more generous than previously proposed, but there is no doubt that the way that the cap works means that it is less generous for those with more modest assets. Does he not agree? How can that be fair?

[Edward Argar]

I simply take my hon. Friend back to my previous point: when compared to the current system, this is a significant improvement and step forward, particularly when taken in the round with the overall package of measures that see the floors go from £23,250 up to £100,000 and from £14,250 up to £20,000. We have to look at this issue in the round, considering all those aspects rather than purely one element alone.

[Mel Stride (Central Devon) (Con)]

Will the Minister give way?

[Edward Argar]

I would like to move on to ICBs and ICSs, but I suspect that, assuming there is time, my right hon. Friend, who chairs the Treasury Committee, may have the opportunity to intervene during my winding up, or to give a speech during the course of the debate.

Currently, the NIS regulations cover NHS providers in England, rather than commissioners. Government amendment 30 allows us to mitigate cyber-risk in a wider sense, making cyber-security a responsibility for organisations that have duties across the system, and to drive forward a shared and collaborative effort towards reducing the risk to patients. I hope that Government amendments 29 and 30 will be uncontentious and supported on both sides of the House.

[Liz Kendall]

Will the Minister give way?

[Edward Argar]

On ICBs, which I have moved on to, but not on new clause 49.

[Liz Kendall]

Is the Minister absolutely sure about what he said in response to the hon. Member for Thirsk and Malton (Kevin Hollinrake)—that everybody would be better off under new clause 49 than they are now? Is it not the case, as illustrated by the Health Foundation, that people with very modest homes, worth less than £106,000, will never hit the cap and therefore will not be better off under the Government’s proposed system than they are now?

[Edward Argar]

I make the point to the hon. Lady that I made in my opening remarks; I said that no one would be worse off and the majority would be better off. That is the point that I make to her: people would not be worse off. If she looks at Hansard, she will see that those were my original remarks when I opened this debate.

--- Later in debate ---

[Paula Barker]

Will the Minister give way?

[Edward Argar]

On ICBs, but not on new clause 49. We have moved on and I need to make some progress, because I know that many Members want to speak.

[Paula Barker]

I thank the Minister for giving way; he has been very generous with his time. Does he agree that if true integration and genuine parity of esteem are to be achieved, it should be written into law that local authorities should have a seat on the ICB?

[Edward Argar]

Local authorities will have a seat on ICBs and on ICPs. The approach set out in the legislation is appropriate. We have sought throughout for it to be permissive, not prescriptive, and that remains the right approach.

[John Redwood]

Will the Minister give way on ICBs?

[Edward Argar]

May I make a little bit of progress? Depending on time, I may then give way to my right hon. Friend. I am conscious that hon. and right hon. Members want to speak—I suspect, primarily on new clause 49.

I turn to Government amendment 25. In doing so, I thank the hon. Member for Ellesmere Port and Neston (Justin Madders), whose birthday it is today—I wish him a happy birthday; I am sure that he can think of nothing that he would prefer to be doing—and the hon. Member for Nottingham North (Alex Norris) for their discussions about this issue. I do not know what view they have reached, but I am grateful for the helpful spirit in which they approached those conversations.

Although service provision—I emphasise the word “provision”—by the independent and voluntary sectors has been an important and valuable feature of the system under successive Governments, it was never the intention for independent providers to sit on integrated care boards and it still is not. We were clear that the conflict of interests provisions addressed the issue, despite misleading and inaccurate claims by some campaigners. However, we are happy to put the matter even further beyond doubt.

Government amendment 25 makes it clear that no one may be appointed to an ICB who would undermine the independence of the NHS, either as a result of their interests in the private healthcare sector or otherwise. We expect this to prevent, for example, directors of private healthcare companies, significant stakeholders of private healthcare companies and lobbyists from sitting on the board of an ICB. It would also prevent anyone with an obvious ideological interest that clearly runs counter to the NHS’s independence from sitting on a board of an ICB.

[John Redwood]

Will the Minister give us a brief comment on the recruitment of chief executives and senior management to the boards? Will we be using people who already have senior NHS jobs, meaning that there will be no redundancy and transfer costs, or will there be quite a redundancy bill because we want to change personnel?

[Edward Argar]

I think my right hon. Friend is talking about executive posts. Yes, there will be processes in place to ensure that employment rights are respected. There will be some roles that are completely new and there will be a competition, but I would expect that those with a significant track record and experience would therefore find themselves in a strong position. I will not prejudge any of those individual decisions.

[Sir Charles Walker (Broxbourne) (Con)]

rose—

[Edward Argar]

I will give way to my right hon. Friend.

[Sir Charles Walker]

I am not a right hon. Member, but I am very happy to take the promotion.

I have tabled a number of technical, totemic amendments on parity of esteem that appear on today’s amendment paper and tomorrow’s. They propose taking general references to “health” in the Bill and changing them to “physical and mental health”. I hope that the Minister will receive those amendments with his usual generosity and make the necessary changes over the next two days.

[Edward Argar]

I take my hon. Friend’s amendments in the spirit in which they are of course intended. I recognise the importance and value that those on both sides of this House put on parity of esteem of mental and physical health. I suspect that we may debate the amendments in subsequent groupings and I look forward to responding then.

We have, in the process of drafting this amendment, heard suggestions that we should simply ban private company employees completely from the boards of ICBs. I am afraid that doing so is not so simple, nor would it achieve the desired result in all cases. In fact, our amendment goes further to underline the importance of NHS independence than would an amendment that focused purely on banning employees of private providers. There are clearly some candidates who would be suitable but may have minor interests in private healthcare. GPs, for example, do provide, and have provided, their excellent knowledge and experience of their patients in guiding commissioning decisions, and some may have private practices as well. Excluding them would be to lose their experience from the NHS, and therefore such an involvement with the private sector would clearly not risk undermining the independence of the NHS.

[Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)]

I draw the House’s attention to my declaration in the Register of Members’ Financial Interests as a practising NHS doctor. A number of GPs have, in recent times, sought to group together into confederations of practices, which could create a bloc interest within a local board area. How will that potential conflict of interest in the commissioning and provision of services be addressed by the Government through legislation?

[Edward Argar]

I am grateful to my hon. Friend, who knows of what he speaks in terms of the operation of healthcare services. We would not wish to exclude GPs or groups of GPs from being able to participate in decision making. That expertise, as we have seen with clinical commissioning groups, can be hugely valuable. What we have sought to do, in an amendment that is technically worded, for want of a better way of putting it, is to strike the right balance while also ensuring that the additional measures on the constitutions of the ICBs and ICPs have to be approved by NHS England to avoid any obvious conflict of interest. But we are not seeking to avoid GPs being able to operate in that space and sitting on ICBs.

[Clive Efford (Eltham) (Lab)]

Will the Minister give way?

[Edward Argar]

I would like to make a little progress and then I will give way to the hon. Gentleman, who has been bobbing for some time.

We believe—this may not answer the hon. Gentleman’s point, but I will make a little progress and then if there is time—[Interruption.] Well, we will see. Hope springs eternal. A blanket ban on employees of private companies would also, we fear, be arbitrary. It would not cover the full range of people involved in non-NHS providers, some of whom may not be suitable candidates to sit on ICBs because of their involvement, but not employment, within the private healthcare sector. With the complex corporate structures that providers may have established, a narrow definition in the Bill could be unhelpful and risk not capturing the people we wish to capture.

[Chris Grayling (Epsom and Ewell) (Con)]

I support what my hon. Friend is saying. It would be crazy to exclude primary care because it is effectively a private healthcare business, and therefore what he is saying is enormously important. In support of my hon. Friend the Member for Broxbourne (Sir Charles Walker), I believe it would be absolutely wrong, looking at my own county, if the mental health trust did not have a presence in the governorship of the ICB. I hope that the Minister will ensure a presence not only for the conventional trusts in hospitals and in primary care but for the mental health trusts, because their role is vital and the integration of services is essential to the delivery of good mental health care.

[Edward Argar]

My right hon. Friend makes a point that came out in some of the oral evidence sessions on the Bill. Our aim was to create a minimum membership for the ICBs and ICPs, but it is not prescriptive—it can go beyond that—so there is scope for mental health trusts or other health trusts to have seats on those boards. Indeed, Dame Gill Morgan, who runs the integrated care system in Gloucestershire, said that that is exactly what she has done and that she would be surprised if any ICB did not wish to do it. But we wanted to set a de minimis membership to allow for local flexibility.

[Clive Efford]

We have GP practices that are being privatised now—they are being bought up by private companies, with some foreign interests as well. If the Minister is saying that those companies can have representation on ICBs, we have already seen circumstances where people have tried to redact minutes of meetings, so does this not open up the possibility of private interests being served at these meetings but not being accountable through public scrutiny?

--- Later in debate ---

[Edward Argar]

I entirely understand the point the hon. Gentleman is making. I think he was careful, shall we say, given some litigation that may be going on, not to mention anything specific, but I know what he is talking about. We believe that our amendment will prevent private companies—whatever services they were providing for the NHS—with a significant private interest in this, or their lobbyists, from being able to sit on ICBs. The hon. Member for Bristol South (Karin Smyth) raised the need for transparency in Committee a number of times, and I suspect we may return to that point. We believe that the current transparency requirements on CCGs that will be carried across are sufficient to ensure transparency and public access to the information they need.

[Geraint Davies]

rose—

[Edward Argar]

I am afraid I am about to conclude. I suspect that the hon. Gentleman will come back in with a speech and I will endeavour to pick up on that in the wind-ups.

There are a number of similar amendments, such as amendment 101 in the names of the hon. Members for Wirral West (Margaret Greenwood) and for Brighton, Pavilion (Caroline Lucas). I hope they might feel, to some degree, reassured by our amendment and the intent behind it, but that is obviously for them to say. We believe that the Government’s amendment puts beyond doubt what we believe was already entirely clear but were determined to put beyond doubt—that ICBs will not and cannot be controlled in any way by the private sector, as NHS-accountable bodies guided by the NHS constitution and with NHS values at their heart. These principles, I believe, irrespective of other debates we may have this evening, command respect from both sides of this place. I therefore commend the amendments to the House.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

A wide range of issues that are part of this group of amendments demonstrate the cold reality of this Bill. It is a jumble sale of bits and pieces. Of course a Bill can be wide-ranging, but having breadth is not the same as having coherence, or indeed clarity. Such are the issues within scope in this grouping that I will not comment directly on every new clause and amendment but hope to have time to say at least a few words on those emanating from the Opposition Front-Bench team, as well as on any Government new clauses or amendments that we oppose. Some amendments refer to matters that have been dealt with in Committee where we have expressed our views and put forward amendments that failed to persuade the Government. Sadly, we have insufficient time to go over the same ground again, particularly given the rapid shifting of the goalposts we have seen in the past week.

I turn first to integrated care boards, or ICBs, and, more widely, the issue of governance. The question of governance and accountability remains an important matter to us and needs greater clarity than currently appears in the Bill. For Members who may not be familiar with the detail, the Bill proposes yet another reorganisation of the NHS, creating 42 new integrated care systems where decisions on how NHS and care spending will be made. The decision-making bodies within these systems are the ICBs, replacing the CCGs, which fall away into the annals of history alongside the primary care groups, the primary care trusts and all the other permutations that we have seen.

Our discussions on these matters in Committee showed that our disagreements tended to centre around an intention by Government to limit what is in statute and to leave maximum flexibility at local level, as opposed to our desire to ensure that safeguards and protections were in place for those matters we felt were too important to be left out. It is wholly ironic, therefore, that the Bill proclaims, on the one hand, local freedoms and flexibilities, yet on the other proposes sweeping top-down powers for NHS England and the Secretary of State. Our view remains that some flexibility is fine to allow shaping to local needs, but that some key principles need to be put into the Bill to ensure that there are no misunderstandings or unintended consequences.

We know that the genesis of this Bill has been the realisation that increasingly large parts of the NHS were ignoring the 2012 Lansley Act. Along with changes to procurement and pricing, this grouping deals with the main elements of reversing parts of that Act. We could spend all our time referring to what we said 10 years ago, and how the Health and Social Care Act 2012 has proved to be the disaster that we said it would be, but we will spare the Government the “We told you so” lectures, because even those on the Government Benches are now aware that the 2012 Act has been among the worst policy mistakes in the history of the NHS. Whether that damage was worse than the damage done by a decade of austerity remains to be seen, but repairing the damage done by austerity is not for today, as there is little in the Bill to address the ongoing consequences of a decade of underfunding, particularly the wholly appalling waiting times that we now see across the board.

--- Later in debate ---

[Jeremy Hunt (South West Surrey) (Con)]

Madam Deputy Speaker, I think on this occasion I can oblige you, because I will be very brief. I wish to speak to amendment 114, which may seem a rather technical amendment—as is evidenced by the fact that, out of 650 colleagues, only one has actually signed it, and that is me—but it makes up in quality for what it does not have in quantity. It is about making sure that the new integrated care boards focus their energy on the safety and quality of care of patients. That is very important, because the new integrated care boards will have enormous power. In effect, they will be the local governing bodies of our NHS.

Although the statutory structures matter, what the people running those care boards focus their attention on is incredibly important to all our constituents. The amendment will make sure that when care boards consider their priorities, the things that matter to patients—the safety and quality of care—are put at the very top of their list. We know the way the NHS works. It is the fifth-largest bureaucracy in the world, and there is a plethora of internal NHS—

[Edward Argar]

rose—

[Jeremy Hunt]

I see the Minister wants me to give way. May I make my argument for one moment, and then give way?

There is a plethora of internal NHS targets, there are operational targets and there are financial targets. They often have an excellent purpose, but, as in the case of Mid Staffs and other cases where things went badly wrong, being under a lot of pressure to meet those targets means corners can be cut, and the quality of care experienced by patients can be really damaged. The amendment would make sure that there was discipline in the system, so that whatever pressure NHS managers were under, they were always focused on safety and quality of care.

--- Later in debate ---

[Jeremy Hunt]

Before I come to the Minister, I want to say—and I am very grateful to my right hon. Friend the Member for Wokingham (John Redwood), who gave me consistent support on this agenda when I was Health Secretary—that, in the public sector, the one system that has seemed to make sure we focus public bodies on our constituents’ priorities is the Ofsted system in schools. We have rolled that out, I think reasonably successfully, to hospitals, GP surgeries and care homes, and this amendment makes that possible for the new integrated care boards. I want to give the Minister a chance to intervene to tell us his reflections on whether this system could work.

[Edward Argar]

I am grateful to my right hon. Friend. It is not just my right hon. Friend the Member for Wokingham (John Redwood) who supports him on this; I and the Government do, and we are delighted to accept his amendment.

[Jeremy Hunt]

I am most grateful to my hon. Friend, and I am also grateful to the Opposition, who have indicated that they will not oppose the amendment.

--- Later in debate ---

[Mrs Maria Miller (Basingstoke) (Con)]

I listened carefully to my hon. Friend the Minister for Health earlier as he introduced new clause 49 because the funding of social care has been a huge concern for too many years. The people we represent deserve far more certainty about how their old age will be funded if they require social care.

We have a pension system and a system to support disabled people, but the funding of social care is a real uncertainty. I pay tribute to the Minister for bringing forward these costed proposals to provide some certainty for the future for more people. He is to be commended for being clear that no one will lose out under the proposals and that the majority will be better off because of the issues that we have already gone through—particularly because the means-test threshold is being significantly raised. He can say that with some force because of the more than £5 billion extra being put forward by the Government to fund social care in a sustainable way for the future.

However, there is still clearly some concern, as the Minister can hear from the debate. As my hon. Friend the Member for Gosport (Caroline Dinenage) said, no solution will be perfect, so I was particularly pleased to hear of the Minister’s plans to publish an impact assessment, which will clearly set out the impact of these measures across the board. That is important.

Finally, I want to speak in support of my amendment 102. We all know that the quality of support that we give victims of domestic and sexual abuse is a marker for the health of our society, and it is not just a matter for the NHS. However, the NHS plays a vital part in that support. Amendment 102 requires the joint forward plan for integrated care boards and their partners to properly set out the steps they propose to take to address the needs of victims of domestic abuse—whether domestic violence or sexual abuse, and whether it involves children or adults.

Amendment 102 does not limit the plan to addressing only the victims of domestic abuse; many other types of abuse are equally devastating, and it is permissive enough to allow innovation and improved ways of working to be developed in guidance. I hope that it can be used as a basis for guidance to integrated care boards as part of their general powers.

Amendment 102 is just part of the greater whole. The Police, Crime, Sentencing and Courts Bill in particular will require action across Government, but the amendment will help to ensure that every part of the state is pulling in the same direction when it comes to issues of domestic and sexual abuse. My amendment is similar to new clause 33, which my hon. Friend the Member for Newton Abbot (Anne Marie Morris) outlined earlier, but my amendment is more permissive and less prescriptive, so I hope the Government will find it acceptable.

[Edward Argar]

I am grateful to my right hon. Friend for the case she is making. I should also put on the record my gratitude for the work that my hon. Friend the Member for Newton Abbot (Anne Marie Morris) has done in this policy space and for her proposal. Her Majesty’s Government are happy to accept my right hon. Friend’s amendment 102 on support for victims of domestic abuse.

--- Later in debate ---

[Jess Phillips (Birmingham, Yardley) (Lab)]

I was not expecting to be called, Madam Deputy Speaker, but here we are. I want to tell a little story about my dad. My dad often rings me and tells me the things I should say in Parliament—I am not entirely sure any of you are quite ready for it, but I want to tell a story about my dad. He was born in the war, and they were given a council house by the Attlee Government—my dad could lecture us on it for weeks! He was given a council house, which his very Conservative parents bought in the 1980s. My granny, unbelievably—a lovely, generous woman—was a massive Thatcherite. She bought her council house in the 1980s, and that council house stands in my constituency. It is worth around £120,000.

My dad went on to get an education—a free education—and he moved into an area of Birmingham that was not very trendy at the time. He stayed there, I was born there, and my brothers lived there. All through our lives we watched that area get a little bit trendier, and the price of my dad’s house, which he bought for £30,000, went up and up and up. He didn’t particularly do much work—he likes to woodwork in his garage, but he has not done much. His house is probably worth around £700,000 now, and it was £30,000 when he bought it.

If my dad were here today, what he would say to hon. Members, and what he will almost certainly say to me, because he watches it all, lurking on Twitter, is that he does not deserve to keep his wealth for his children at any greater rate than the people who live in the council house that his parents bought on Frodesley Road in Sheldon. Yet today, the people who live in my constituency and the council house that my granny bought, to try to get a better life, will subsidise the care of my father, who has a £700,000 house that I do not need to inherit. I’m all right. I’ve got quite a good job. It is totally unacceptable that that is the situation we are putting almost all my constituents in, compared with constituents in Chipping Norton, for example, or the constituents of other hon. Members who have stood up and spoken. My constituents will largely be left with nothing. They will not be grateful.

[Edward Argar]

I am conscious of time, Madam Deputy Speaker, so I will try to cover some of the main themes that have emerged from today’s debate. I am grateful for the debate we have had today. The vast majority of what is contained in the Bill is exactly what the NHS said that it wanted and needed, and it is the right legislation being brought forward at the right time, to drive forward those priorities highlighted by the NHS in its 2019 consultation. The Bill drives forward integration not only within the local NHS within a region, but also greater integration with a local authority. It provides the foundations on which we can continue to build, as we move forward with greater integration of health and social care services that are designed to work around the individual, rather than in institutional silos.

Despite misleading claims by campaigners—and, indeed, by some Opposition Members—the Bill does not privatise the NHS. The NHS will always be free at the point of delivery. It has been in the hands of the Conservative party longer than it has been in the hands of any other party, and the Conservative party has put in place record investment in terms of resources in our NHS. What we propose in the Bill continues to build on that. Government Amendment 25 on ICBs is clear: ICBs are NHS bodies. They have always been NHS bodies in our proposals, and we have put in place provisions regarding conflicts of interest. Just to make sure, and given the misleading claims about private involvement, new clause 25 puts beyond doubt that ICBs are NHS bodies and must act in the best interests of the NHS. It is an amendment that is much stronger and much more effectively drafted than the alternatives put forward by the Opposition, because we believe in putting this question beyond doubt.

On the ICBs and ICPs, we have sought to be permissive rather than prescriptive, giving those local systems, within a national framework, the flexibility to deliver what they need to deliver for their local areas, which they know best.

I have been happy to accept amendments 102 and 114. I will continue to reflect on the points made by my hon. Friend the Member for Broxbourne (Sir Charles Walker); in the nicest possible way, I suspect that—rightly—he will not go away. The former Secretary of State, my right hon. Friend the Member for South West Surrey (Jeremy Hunt), set out very clearly the case for his amendment 114, which I was happy to accept, and the importance it places on patient safety.

My right hon. Friend the Member for South Northamptonshire (Dame Andrea Leadsom) has done a huge amount of work in this space—I pay tribute to her—and she is right: we will look very carefully in the statutory guidance at how we can emphasise that. I fear that my hon. Friend the Member for Newton Abbot (Anne Marie Morris) was not in her seat when I paid tribute to the work that she had done previously, but I put that on the record too.

On new clause 49, my hon. Friend the Member for Gosport (Caroline Dinenage), a distinguished former Care Minister, made the point extremely well that this is a significant improvement and step forward on where we currently are in respect of tackling the social care challenge.

[Kevin Hollinrake]

Will the Minister give way?

[Matt Western (Warwick and Leamington) (Lab)]

Will the Minister give way?

[Edward Argar]

I am afraid I will not, because I have only a couple of minutes in which to try to address these points, and I did give way a dozen or so times in my opening remarks.

Equally, I recognise, as always in this House, the strength and genuine sincerity of the views and the points put by hon. Members on both sides, genuinely highlighting and wishing to explore certain aspects of new clause 49 to understand exactly what it does and how it works. I have complete respect for the strength of those views.

I believe that, as my right hon. Friend the Member for West Suffolk (Matt Hancock) set out very clearly, this is a significant step forward. It will make a huge difference, and it must be treated as part of a package of measures rather than in isolation. As he quite rightly highlighted, we must look at the floors as well as the cap, at the support that is available, and at the increases in those floors from £14,250 to £20,000 and up to £100,000.

[Matt Western]

Will the Minister give way?

[Edward Argar]

I am afraid I will not, because I literally have only one minute, and I did give way multiple times in my opening remarks.

I believe that the measures in this Bill, which we have debated with these amendments today, give the NHS what it needs to further integrate to deliver the local services it needs and, crucially, move us a huge step forward in tackling the challenge posed by social care for future generations.

Question put, That the clause be read a Second time.

Health and Care Bill

Edward Argar Excerpts

Report stage
Tuesday 23rd November 2021 Commons Chamber

[The Minister for Health (Edward Argar)]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dame Eleanor Laing)]

With this it will be convenient to discuss the following:

Government new clause 37—Offence of offering to carry out virginity testing: England and Wales.

Government new clause 38—Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales.

Government new clause 39—Virginity testing offences in England and Wales: penalties.

Government new clause 40—Offence of virginity testing: Scotland.

Government new clause 41—Offence of offering to carry out virginity testing: Scotland.

Government new clause 42—Offence of aiding or abetting etc a person to carry out virginity testing: Scotland.

Government new clause 43—Virginity testing offences in Scotland: penalties and supplementary.

Government new clause 44—Offence of virginity testing: Northern Ireland.

Government new clause 45—Offence of offering to carry out virginity testing: Northern Ireland.

Government new clause 46—Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland.

Government new clause 47—Virginity testing offences in Northern Ireland: penalties.

Government new clause 48—Virginity testing: consequential amendments.

New clause 1—Licensing of aesthetic non-surgical cosmetic procedures—

“(1) No person may carry on an activity to which this subsection applies—

(a) except under the authority of a licence for the purposes of this section, and

(b) other than in accordance with specified training.

(2) Subsection (1) applies to an activity relating to the provision of aesthetic non-surgical procedures which is specified for the purposes of the subsection by regulations made by the Secretary of State.

(3) A person commits an offence if that person contravenes subsection (1).

(4) The Secretary of State may by regulations make provision about licences and conditions for the purposes of this section.

(5) Before making regulations under this section, the Secretary of State must consult the representatives of any interests concerned which the Secretary of State considers appropriate.

(6) Regulations may, in particular—

(a) require a licensing authority not to grant a licence unless satisfied as to a matter specified in the regulations; and

(b) require a licensing authority to have regard, in deciding whether to grant a licence, to a matter specified in the regulations.”

This new clause gives the Secretary of State the power to introduce a licensing regime for aesthetic non-surgical cosmetic procedures and makes it an offence for someone to practise without a licence. The list of treatments, detailed conditions and training requirements would be set out in regulations after consultation with relevant stakeholders.

New clause 12—Protection of the title of “nurse”—

“(1) A person may not practise or carry on business under any name, style or title containing the word ‘nurse’ unless that person is registered with the Nursing and Midwifery Council and entered in sub part 1 or 2 of the register as a Registered Nurse or in the specialist community public health nursing part of the register.

(2) Subsection (1) does not prevent any use of the designation ‘veterinary nurse’, ‘dental nurse’ (for which see section 36K of the Dentists Act 1984) or ‘nursery nurse’.

(3) A person who contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level four on the standard scale.”

New clause 21—Prohibition of virginity testing—

“(1) A person is guilty of an offence if they attempt to establish that another person is a virgin by making physical contact with their genitalia.

(2) A person is guilty of an offence if they provide another person with a product intended for the purpose, or purported purpose, of establishing whether another person is a virgin.

(3) A person is guilty of an offence if they aid, abet, counsel or procure a person to establish that another person is a virgin by making physical contact with their genitalia.

(4) No offence is committed by an approved person who performs—

(a) a surgical operation on a person which is necessary for their physical or mental health; or

(b) a surgical operation on a female who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth.

(5) The following are approved persons—

(a) in relation to an operation falling within subsection (4)(a), a registered medical practitioner; and

(b) in relation to an operation falling within subsection (5)(b), a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife.

(6) There is also no offence committed by a person who—

(a) performs a surgical operation falling within subsection (4)(a) or (b) outside the United Kingdom; and

(b) in relation to such an operation exercises functions corresponding to those of an approved person.

(7) For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual.

(8) This section applies to any act done outside the United Kingdom by a United Kingdom national or resident.

(9) A person who is guilty of an offence under this section is liable, on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine, or to both.

(10) The court must refer the case of any person guilty of an offence under this section who is subject to statutory professional regulation for investigation by the relevant regulator.”

New clause 22—Prohibition of hymenoplasty—

2(1) A person is guilty of an offence if they undertake a surgical procedure for the purpose of re-attaching membrane tissue, creating scar tissue or otherwise attempting to re-create the hymen in the vagina of a patient.

(2) A person is guilty of an offence if they advertise the service of hymenoplasty or any service that purports to ‘re-virginise’ or otherwise re-create or re-attach the hymen of a patient by way of surgical procedure.

(3) A person is guilty of an offence if they aid, abet, counsel or procure a person to undertake a surgical procedure for the purpose of re-attaching membrane tissue, creating scar tissue or otherwise attempting to or re-creating the hymen in the vagina of a patient.

(4) This section applies to any act done outside the United Kingdom by a United Kingdom national or resident.

(5) A person who is guilty of an offence under this section is liable, on conviction, to imprisonment for a term not exceeding 5 years.

(6) The court must refer the case of any person guilty of an offence under this section who is subject to statutory professional regulation for investigation by the relevant regulator.”

New clause 28—Secretary of State’s duty to report on long term workforce planning—

“(1) The Secretary of State must prepare and publish a report each year on projected workforce shortages and future staffing requirements for health, public health and social care sectors in the following five, ten and twenty years.

(2) The report must report projections of both headcount and full-time equivalent for the total health, public health and care workforce in England and for each region, covering all regulated professions and including those working for voluntary and private providers of health and social care as well as the NHS.

(3) The projections must be independently verified and based on projected health and care needs of the population for the following 5, 10 and 20 years, consistent with the Office for Budget Responsibility long-term fiscal projections.

(4) All relevant NHS bodies, arm’s-length bodies, expert bodies, trade unions and the Social Partnership forum must be consulted in the preparation of the report.

(5) The assumptions underpinning the projections must be published at the same time as the report and must meet the relevant standards set out in the National Statistics Authority’s Code of Practice for Statistics.

(6) The Secretary of State must update Parliament each year on the Government’s strategy to deliver and fund the long-term workforce projections.”

New clause 29—Duty on the Secretary of State to report on workforce planning and safe staffing—

“(1) At least every five years the Secretary of State must lay before Parliament a health and care workforce strategy for workforce planning and safe staffing supply.

(2) This strategy must include—

(a) actions to ensure the health and care workforce meets the numbers and skill-mix required to meet workforce requirements,

(b) equality impact assessments for planned action for both workforce and population,

(c) application of lessons learnt from formal reviews and commissions concerning safety incidents,

(d) measures to promote retention, recruitment, remuneration and supply of the workforce, and

(e) due regard for and the promotion of workplace health and safety, including provision of safety equipment and clear mechanisms for staff to raise concerns.”

Amendment 10, in clause 34, page 42, line 12, leave out from beginning to the end of line 17 and insert—

“(1) The Secretary of State must, at least once every two years, lay a report before Parliament describing the system in place for assessing and meeting the workforce needs of the health, social care and public health services in England.

(2) This report must include—

(a) an independently verified assessment of health, social care and public health workforce numbers, current at the time of publication, and the projected workforce supply for the following five, ten and 20 years; and

(b) an independently verified assessment of future health, social care and public health workforce numbers based on the projected health and care needs of the population for the following five, ten and 20 years, consistent with the Office for Budget Responsibility long-term fiscal projections.

(3) NHS England and Health Education England must assist in the preparation of a report under this section.

(4) The organisations listed in subsection (3) must consult health and care employers, providers, trade unions, Royal Colleges, universities and any other persons deemed necessary for the preparation of this report, taking full account of workforce intelligence, evidence and plans provided by local organisations and partners of integrated care boards.”

This amendment would require the Government to publish independently verified assessments every two years of current and future workforce numbers required to deliver care to the population in England, based on the economic projections made by the Office for Budget Responsibility, projected demographic changes, the prevalence of different health conditions and the likely impact of technology.

Amendment 40, in clause 108, page 96, line 9, leave out subsection (2) and insert—

“(2) In this Part ‘protected material’ means—

(a) all statements taken from persons by the HSSIB during a safety investigation or in the course of deciding whether an incident is going to be subject to an HSSIB investigation,

(b) records revealing the identity of persons who have given evidence in the context of the safety investigation,

(c) information that has been collected by the HSSIB which is of a particularly sensitive and personal nature, such as (but not limited to) copies taken by the HSSIB of health records, care records, clinical notes, or personnel records,

(d) material subsequently produced during the course of an HSSIB investigation such as (but not limited to) notes, drafts and opinions written by the investigators, or opinions expressed in the analysis of information obtained through the investigation,

(e) drafts of preliminary or final reports or interim reports, and

(f) information that would be subject to legally enforceable commercial privileges.”

This amendment would define more closely the materials covered by the “safe space” protection provided for by the Bill.

Amendment 41, page 96, line 32, leave out

“information, document, equipment or other item held by that individual”

and insert “protected material”.

This amendment is consequential on Amendment 40.

Amendment 43, in clause 109, page 96, line 43, leave out from “Part” to end of line 24 on page 97.

This amendment would remove the ability of the Secretary of State to make regulations authorising disclosure of protected material beyond that provided for in the Bill.

Amendment 74, page 101, line 1, leave out clause 115.

Government amendments 24 and 127.

Amendment 57, page 110, line 11, leave out clause 127.

This amendment seeks to ensure that a profession currently regulated cannot be removed from statutory regulation and that regulatory bodies cannot be abolished.

Government amendments 86 and 87.

Government new schedule 1—Virginity testing: consequential amendments.

Government amendment 88.

Amendment 42, in schedule 14, page 218, line 30, leave out paragraph 6.

This amendment would remove the provision allowing coroners to require the disclosure of protected material.

[Edward Argar]

This broad group of amendments concern improving patient safety and the quality of health and care services, both of which are a priority for this Government. For that reason, this Bill will put the Health Services Safety Investigations Body on a statutory footing. The HSSIB will be one of the first independent healthcare bodies of its kind, leading the way in investigating for the purpose of learning, not blaming. For the HSSIB to be able to perform this “no-blame” role, the integrity of safe space is paramount. I look forward to contributions from right hon. and hon. Members from both sides of the House, recognising the depth of expertise, particularly that residing in the hon. Member for Central Ayrshire (Dr Whitford), on how best to make safe space work. As we discussed extensively in Committee, we recognise that ultimately this comes down to: what is the appropriate balance to be struck? Different views are likely to be aired again today.

Within this group, I will also address amendments brought forward by colleagues, including my right hon. Friend the Member for South West Surrey (Jeremy Hunt), on the health and social care workforce. Ensuring we have the workforce this country needs will, in the short-term, tackle the elective backlog. Crucially, in the long-term, as we build back better, it will help to reduce damaging health inequalities. For those reasons, I will later speak in more detail about this Government’s plans on the workforce, some of which of course are already in motion. I hope I can reassure the House that the provisions already made in this Bill, alongside the Government amendments I am about to discuss, do go sufficiently far to address these important issues.

I will begin by addressing new clauses 36 to 48, new schedule 1 and amendments 86 and 87, which comprise the package of Government amendments to prohibit virginity testing in the UK. I offer my deepest thanks to my hon. Friend the Member for North West Durham (Mr Holden) for his tireless efforts in proposing these amendments originally and in supporting the Government in proposing our variations on them, which we believe achieve the right balance—I will turn to that in a moment—as we bring forward this ban.

I should also put on the record my gratitude to the Opposition Front-Bench team for their constructive engagement on this issue, which does not divide us on party political lines but is about doing the right thing. I am grateful to the shadow Ministers on the Opposition Front Bench: the hon. Members for Ellesmere Port and Neston (Justin Madders) and for Nottingham North (Alex Norris).

In July, the Government promised in our violence against women and girls strategy that virginity testing will not be tolerated in the UK and will be banned at the earliest opportunity, so I am delighted that we are introducing amendments that demonstrate the strength of our commitment to the removal of all forms of abuse against women and girls. Our amendments will create three offences: conducting a virginity test; offering virginity testing; and aiding or abetting another person to conduct a virginity test in the UK or on UK nationals overseas. Each offence will carry a maximum penalty of five years’ imprisonment and/or an unlimited fine. This sentencing reflects the long-term physical and psychological damage that this repressive practice can cause.

The offences begin to tackle the harmful misconceptions that surround a woman’s sexuality. This House’s commitment to legislate is a profoundly important step forward in helping to tackle the damaging myths concerning the so-called purity of women’s sexuality. In response to concerns that, once the offence is banned in the UK, vulnerable women and girls will be taken abroad and subjected to virginity testing there, the offences will carry extraterritorial jurisdiction.

The proposals have been discussed by Health Ministers throughout the UK, including in the devolved Administrations, and I am working with them to ensure that the whole of the UK together tackles this abhorrent practice. I put on record my gratitude to the devolved Administrations for the constructive manner in which they have engaged on the issue. I hope that the House will pass the amendments today and allow us to take another step forward in our shared endeavour and important work on safeguarding and improving the lives of women and girls throughout the United Kingdom.

Let me turn briefly to new clause 21, tabled by my hon. Friend the Member for North West Durham—I thank him again for doing so. I hope that what I have said will reassure him and the rest of the House that the package of Government amendments that I have just discussed go further to protect women and girls from this form of abuse and are the most effective vehicle by which we can achieve what we seek to do. Our package of amendments set out that the conducting, offering or aiding of a virginity test is simply indefensible. The amendments ensure that victims are protected on our shores and abroad and that the sentencing of those convicted reflects the detrimental physical and psychological impacts of the practice. I therefore hope that my hon. Friend will feel able not to press his new clause to a vote and instead to support our amendments. I am incredibly grateful to him—as, I am sure, is the House—for his campaigning vigour on this issue.

My hon. Friend also tabled new clause 22, which seeks to ban the practice of hymenoplasty. The Government remain concerned that hymenoplasty is also driven by a repressive approach to female sexuality and is closely related to virginity testing, which we have made clear today is not an acceptable practice in the United Kingdom or elsewhere. We announced in the violence against women and girls strategy that we would set up an independent expert panel to explore the complex clinical, legal and ethical aspects of the procedure in more detail. The panel, which includes key stakeholders with ethical and clinical expertise, has already met and will shortly make its recommendations to Ministers, before Christmas. It is crucial that, having asked the panel to contribute, we carefully consider its views before we make a firm decision to ban hymenoplasty. However, I assure the House that although we cannot accept the new clause today because we await the recommendations of the review panel, we will of course fully reassess our position as soon as the panel makes its recommendations.

If we are to ensure patient safety and quality of care, it is vital that we have the workforce in place to deliver it. That is a priority for the Government and I reassure the House that we are taking the necessary steps to secure the workforce of the health and social care sector. Members throughout the House would all agree that although investment in technology, in new hospitals and buildings, in therapeutics and in kit are all phenomenally important, the golden thread that makes that investment valuable is the workforce—the people who always go above and beyond, particularly in the past 18 months, to make that equipment more than just a shiny piece of kit but something that actually saves lives. They are absolutely the heart of what we are doing.

[Chris Grayling (Epsom and Ewell) (Con)]

I am particularly concerned about the workforce situation in primary care. In my constituency, the practices are reporting back not only on an acute shortage of locums, but on their ability to recruit new GPs. One reason is that, 10,15, 20 years ago, there was inadequate planning for the future and we did not train enough doctors. That is one reason why I have signed amendment 10 tabled by my right hon. Friend the Member for South West Surrey (Jeremy Hunt). May I urge the Government to go beyond where they have been and to look for any way available to deal with this issue now, and particularly to plan for the future so that this does not happen again?

[Edward Argar]

My right hon. Friend is perspicacious in his prediction of where I was about to go. I was about to turn to amendment 10 tabled by my right hon. Friend the Member for South West Surrey and new clause 28 tabled by the shadow Minister, which go to the heart of what my right hon. Friend is talking about.

I hope the shadow Minister will agree that amendment 10 and new clause 28 are, essentially, broadly unified in their intention and therefore I hope that he will allow me to take them both together. They require the Government to publish independently verified assessments of current and future workforce numbers for the needs of the health, social care and public health services in England.

There has rightly been much discussion on workforce planning for the NHS and adult social care. That reflects the deep debt of gratitude that the country owes the staff and also, as I said, their absolute indispensability in delivering on all our aspirations for healthcare and social care in this country and for our constituents’ care.

As part of our commitment to improving workforce planning, my Department is already doing substantial work to ensure that we recover from the pandemic and support care. We have already committed to publishing, in the coming weeks, a plan for elective recovery and to introducing further reforms to improve recruitment and support for our social care workforce, with further detail set out in an upcoming social care White Paper. We are also developing a comprehensive national plan for supporting and enabling integration between health, social care and other services, which support people’s health and wellbeing.

Let me turn to that framework, to which my right hon. Friend the Member for Epsom and Ewell (Chris Grayling) was alluding, for a longer-term perspective. The Department has already commissioned Health Education England to work with partners to develop a robust, long-term 15-year strategic framework for the health and social care workforce, which, for the first time, will include regulated professionals in adult social care. That work was commissioned in July by my hon. Friend the Member for Faversham and Mid Kent (Helen Whately) when she was in post in the Department. That work will look at the key drivers of workforce demand and supply over the longer term and will set out how they impact on the required shape and numbers of the future workforce to help identify those main strategic choices, and we anticipate publication in spring of next year.

It is vital that the workforce planning is closely integrated to the wider planning across health and social care and, as such, Health Education England, which has established relationships with the health and care system at a local, regional and national level, is best placed to develop such a strategy. Crucially, following the announcement yesterday of HEE merging with NHS England in improvement, we will, for the first time, bring together those responsible for planning services, for delivering services on the ground, and for delivering on the workforce needs of those services so that we can have a more integrated approach to delivering on that framework.

[Richard Fuller (North East Bedfordshire) (Con)]

I am grateful to the Minister for giving way. There is much to commend in the amendment of my right hon. Friend the Member for South West Surrey (Jeremy Hunt) and in what the Minister is saying. One thing that is not obvious in either, though, is the focus on labour costs and productivity. For example, how is technology going to reduce labour costs in the delivery of the same quality or higher quality of service? What is the possibility of creating new care pathways, which require less qualified staff to deliver as good or better service? What is going on in terms of reducing the proportion of non-clinical staff by the adoption of technology and other means in healthcare? Perhaps the Minister could address that. I am sure that my right hon. Friend will be doing so later, too.

[Edward Argar]

My hon. Friend is absolutely right. We see huge opportunities, almost every day, from new technology and new ways of using that technology to deliver more efficient and shorter turnaround times—for tests and diagnostics, for example. He is also right to talk about the need constantly to examine care pathways, and, where opportunities exist, to use highly qualified healthcare professionals but to look carefully at the most appropriate level at which a treatment or test can be carried out; historically, we may have used healthcare professionals for particular tasks for which they were almost over-qualified. It is right that care pathways are informed by clinical and scientific expertise and judgment, but that we continue to review how new technology, new ways of working and new care pathways can improve the productivity of our amazing workforce.

[Emma Hardy (Kingston upon Hull West and Hessle) (Lab)]

As part of the Minister’s workforce review, will he look at the Carr-Hill formula, which local GPs tell me incentivises GPs to go to areas with longer life expectancy—therefore, wealthier areas—at the expense of areas such as Hull? It feels like the funding mechanism for GPs is not fair.

[Edward Argar]

The Carr-Hill formula has been through many “almost reviews” over the years and has been looked at by different Governments. Various GP practices in my constituency—as I am sure is the case in the hon. Lady’s—understandably raise opinions about how the formula might be improved. The point does not necessarily goes to the entire heart of what we are discussing, but she has managed deftly to make it within scope, in the context of GPs and so forth.

Finally, the report in clause 34 will increase transparency and accountability of the workforce planning process. It is for those reasons that I encourage—perhaps unsuccessfully—my right hon. Friend the Member for South West Surrey and the shadow Minister, the hon. Member for Ellesmere Port and Neston, to consider not pressing their amendments to a Division.

[Rachael Maskell (York Central) (Lab/Co-op)]

Fifteen years is a long time in workforce planning. The make-up of the workforce could change significantly over that time, not least as we are trying to address some real workforce crises now. Will the Minister put in place a road map to fill those vacancies over that time, and interim reports so that we can review progress?

[Edward Argar]

I set out the commissioning of the 15-year framework to look at need. Within that, the House will be regularly updated, as happens now—not least in oral questions, as we saw in the session preceding this debate—with plenty of opportunities for Members to challenge the Government and to see updates. There is also the regular publication of figures and workforce statistics, which will continue. Once we have that 15-year framework back and see what HEE says, we will be able to look at how best that might be interrogated by Members of the House and the wider public. I am hopeful that it will report back in the spring, and I suspect that that may well occasion a debate in this House. If not, I suspect that it may well occasion an urgent question from the hon. Lady or the hon. Member for Ellesmere Port and Neston.

Let me turn to new clause 29, which also addresses the issue of workforce planning. This new clause would place a duty on the Secretary of State to report on workforce planning and safe staffing. I have just elaborated at some length on the substantial work that my Department is doing to improve workforce planning. It remains the responsibility of local clinical and other leaders to ensure safe staffing, supported by guidance and regulated by the Care Quality Commission. The ultimate outcome of good-quality care is influenced by a far greater range of issues than how many of each particular staff group are on any particular shift at any one time, even though that is clearly important, which is why the Government are committed to growing the health workforce. It is also important that local clinical leads can make decisions based on the circumstances in their own particular clinical setting, utilising their expertise and knowledge.

The amendment would also require the report to contain a review of lessons learnt. In the last decade, the Government have introduced significant measures to support the NHS to learn from things that go wrong, reduce patient harm and improve the response to harmed patients, such as: a regulated duty of candour that requires trusts to tell patients if their safety has been compromised and apologise; protections for whistleblowers when they raise safety concerns; the Healthcare Safety Investigation Branch, which we are building on and establishing as a separate statutory body through the Bill; and the first-ever NHS patient safety strategy, with substantial programmes planned and under way to create a safety and learning culture in the NHS.

I hope I have given the House some reassurance that we are doing substantive work to improve safe staffing and workforce planning. Again, I encourage the shadow Minister—perhaps it will be unsuccessful, but it is always worth trying—to consider withdrawing his amendment.

[Dr Andrew Murrison (South West Wiltshire) (Con)]

New clause 29(2)(d) has merits, as I am sure the Minister will accept, in that we need to incentivise people to join health and care, and, crucially, to be retained with the system. Will he give some consideration to this, particularly given that, for example, somebody working in the care system can work for years and years and still be in the same place when it comes to applying for a training place in a profession allied to medicine as somebody who simply has a couple of A-levels? That seems to be wrong. Does he agree that we need to complete the structure so that there is some prospect of progression with health and care and to try to break down the barriers between the two?

[Edward Argar]

As ever, my right hon. Friend—my friend—makes his point well, and, as ever, I will commit to taking it away and reflecting on it very carefully. He is always very considered in the points he makes in this House, so I am happy to look at it.

I turn to Government amendment 127, which I bring forward with support of the Welsh Government. Clause 127 on professional regulation provides additional powers that will widen the scope of section 60 of the Health Act 1999 and enable the Privy Council to make additional changes through secondary legislation. One of the powers within this clause is to enable the regulation of groups of workers concerned with physical and mental health, whether or not they are generally regarded as a profession. This element of the clause falls within the legislative competence of the Senedd. When the section 60 powers are used, they are subject to the existing statutory requirements in schedule 3 of the Health Act 1999— namely, consultation and the affirmative parliamentary procedure. When legislation made using section 60 powers also falls within areas of devolved competence, it will be developed in collaboration with the devolved Administrations. Orders may require the approval of the Scottish Parliament where they concern professions brought into regulation after the Scotland Act 1998, or of the Welsh Assembly where the order concerns social care workers. In Northern Ireland, where the regulation of healthcare professions is a transferred matter, the UK Government will continue to seek the agreement of the Northern Ireland Executive when legislating on matters that effect regulation in its territory.

The amendment introduces a requirement to obtain the consent of Welsh Ministers before an Order in Council can be made under section 60 of the Health Act 1999 when it contains a provision that would be within the legislative competence of the Senedd. It would apply if we were seeking to bring into regulation in Wales a group of workers who are concerned with physical or mental health of individuals but who are not generally regarded as a profession. The UK Government recognise the competence of the Welsh Government regarding this provision and are respecting the relevant devolution settlement in making this amendment. For these reasons, I ask hon. Members to support the amendment.

Finally, I turn to the amendments related to part 4 of the Bill on the health services safety investigations body. These are the most significant set of provisions found within this Bill to enhance patient safety. The establishment of an independent healthcare body focused on learning from mistakes to improve safety and quality is a world first. For the health service safety investigations body to be able to perform this “no-blame” role, the integrity of safe space is paramount. Without it, health and care staff will not have confidence to come forward, and potential learning will be lost. This principle runs throughout the drafting of these clauses. We have made a small number of exceptions in the Bill—for example, to ensure that coroners can continue to perform their vital functions as judicial office holders and effectively as part of the judiciary. We have also provided for a regulation-making power to ensure that safe space can evolve in line with innovation in technology or medical practice. However, nothing in the Bill can or will undermine the imperative that the HSSIB is an independent organisation or the fundamental importance of safe space to the effective working of that organisation.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

Will the Minister give way?

[Edward Argar]

Yes, of course, although I do so with a degree of trepidation, because the hon. Lady is well versed in these issues.

[Dr Whitford]

The Minister does not need to be anxious, because he has already heard it all in Committee. Does he not recognise that there is nothing in HSSIB that takes away from coroners’ investigations that they carry out at the moment, and that HSSIB should not be seen as replacing that work by another health body? Adding coroners to it has already created a campaign relating to the ombudsman and freedom of information, and there is a real danger that it weakens the safe space.

[Edward Argar]

I am grateful for the manner in which the hon. Lady puts her points. She is right; we have debated this previously. We have been publicly clear that we do not believe that the exemption or exception should be extended to the ombudsman. She is right that there are campaigns saying we should have no exceptions or that we should widen the exceptions. We believe we have struck the right balance with this measure, while respecting the fact that a coroner is a judicial office holder and has a very specific function to perform, as set out in legislation in—this is where my memory may fail me—the Coroners and Justice Act 2009, which recognises their particular and special status. I suspect that she and I may have to agree to disagree on whether the appropriate balance is struck, but that sets out why we have done what we have done.

How best to achieve an effective safe space is complex and the current drafting has been arrived at through years of detailed policy work, including pre-legislative scrutiny before the Health Service Safety Investigations Bill was introduced in the other place in autumn 2019. The issue was also debated at length in Committee, and I look forward to hearing contributions from Members on that, particularly the hon. Member for Central Ayrshire.

Turning to the two minor and technical Government amendments to the health service safety investigations body provisions, amendment 24 is a technical amendment to clarify the definition of “investigation” that applies to part 4 of the Bill. Investigations carried out by HSSIB by agreement under clause 114, which relate to Wales and Northern Ireland, were never intended to be part of the main investigation function of HSSIB and therefore will not be covered by the safe space or other investigatory power provisions provided for in the Bill. The amendment ensures that the drafting of the Bill fully reflects that original policy position. I hope that hon. Members on both sides of the Chamber will be content to pass this technical amendment.

Finally, I turn to Government amendment 88 to schedule 13. Schedule 13 contains a regulation-making power which allows the Treasury to vary the way any relevant tax has effect in relation to associated transfer schemes. Regulations made under this power will be used to ensure that no unintended tax consequences arise. The amendment ensures that value added tax is included in the taxes which the Treasury can, by regulations, vary when considering the transfer schemes in this Bill. Without this amendment, it is possible that complications with VAT bills may arise when transfer schemes are made and transactions take place. It is for those reasons that I ask hon. Members to support this amendment.

I am conscious that other hon. and right hon. Members may wish to speak to their amendments. I look forward to addressing those that I have not directly addressed thus far when I wind up debate on this group of amendments. With that, I conclude.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

I thank the Minister for his introduction. It seems like only yesterday that we were having a similar exchange across the Dispatch Box.

I will begin with our new clauses 28 and 29 and amendment 10. This discussion about workforce could well be the most important of all today. Just this weekend, Chris Hopson from NHS Providers was trying to get the Government to acknowledge the seriousness of the problem when he tweeted:

“93k NHS staff vacancies. £6bn spend on temporary staff to fill gaps. 55% of staff working unpaid extra hours each week. 44% saying they’ve felt ill with work related stress. NHS desperately needs long term workforce planning. Govt must make this happen this week.”

Everything comes back to workforce and the failure to invest in it consistently over a sustained period. Today we have a chance to correct that.

While we favour our new clause 29, it is obvious that amendment 10 has captured the attention of many and may well be put to a vote. In many ways, as the Minister said, it closely mirrors what we have put forward, so I will be making my general points on both the new clauses and the amendment. In supporting amendment 10, I pay tribute to the right hon. Member for South West Surrey (Jeremy Hunt), the Chair of the Health and Social Care Committee. Given his previous role, he is well placed to have an informed view on what needs to be done, and he has done that with this amendment without undue hype or drama. The support he has obtained more widely from stakeholders outside the House is impressive; indeed, the way he has united just about the entire sector shows not only his powers of persuasion, but the importance of the issue. He has come close to uniting the entire sector in the past, but that was usually in opposition to something he was proposing, rather than in support. There may be many other areas where we have disagreed in the past, but that does not diminish our support for his call.

--- Later in debate ---

[Derek Thomas (St Ives) (Con)]

I rise to speak on amendment 10 on workforce planning, in the name of my right hon. Friend the Member for South West Surrey (Jeremy Hunt). However, surely the Government’s urgent priority is to look at effective ways to attract back into the NHS all those consultants, nurses and social care workers who have left, and to find any way they can to bring back that experience and expertise.

With your permission, Mr Deputy Speaker, I would like to talk about some lived experience. Just last Friday, I came across a lady who had fallen over and clearly injured herself. I phoned 999, knowing full well that I would be entering a system under severe stress and pressure. I confess that, as it happened. I put the phone down, because the priority for me was to ensure that she was safe, warm and comfortable.

The ambulance service called me back and told me it would be a wait of several hours. I knew that that was caused by the pressure on the ambulance service and on A&E and the subsequent pressure on beds, hindering the effective and timely treatment of people who go to hospital. The pressure on admission to A&E also affects surgery. All that pressure goes down to one place in Cornwall, and Cornwall will not be unique: delayed transfers of care.

We have been in this place before: in 2016, a system-wide review of the situation in Cornwall found far too many people who would be better off in the community, being looked after in homes or care homes, but were stuck in hospital. In Cornwall today I understand the figure is more than 100 people in that exact situation. The pressure on the whole system is largely to do with those delayed transfers of care. While much has been said about the workforce planning for the NHS, I will quickly touch on workforce planning for the care workforce.

The emphasis on workforce planning should transform the current state of the care workforce, leading to better support, better training, better pay and better status. I am hopeful that the White Paper will address that, as it is the only way to effectively ease the pressure on acute NHS settings. There is an urgent need to understand and address the pressure on care staff, GP practices and community care across the board.

Maybe I should have said this at the beginning, but I chair the all-party parliamentary group on diabetes. Several years ago, we found that, in the whole of the south-west, training for podiatry was coming to an end because of a lack of funding and the way it was delivered across the region. That had an immediate impact on community care and how people could be cared for and enabled to live with and manage their condition, which ultimately puts more pressure on urgent care.

As we look at workforce planning and how to understand exactly what is needed, I particularly thank the NHS staff who have worked so hard, especially those I met at the beginning of the year, who, as they delivered the vaccine roll-out, told me they were doing it for the national effort. Workforce planning and the commitment to ensuring that we have the workforce where they are needed, with the skills they need, is the best way to reward our NHS workforce.

[Edward Argar]

This is a little more generous than the six minutes I feared I might have to work with, Mr Deputy Speaker.

If I may, I will address each set or theme of amendments in turn. First, I am grateful to my hon. Friend the Member for North West Durham (Mr Holden) for the work he has done. He rightly highlights that in a sense he is but the voice of the campaigners who have worked so hard on this issue over a very long period. I am pleased that today, while it is not his exact amendment, we have been able to work together to table an amendment that I hope will command cross-party support across the House to deliver on what he has campaigned so effectively for.

I have known my hon. Friend a very long time, so I should not have been surprised by the persistence with which he beat a path to my door to seek to secure agreement on exactly this policy issue.

[Mr Holden]

Can I just say that the Minister has been absolutely superb in engaging throughout this process? I would like to thank the shadow team as well, who in Committee and today—and throughout—have shown real conviction towards this end. I thank the Minister and his team and also the shadow team for all they have done.

[Edward Argar]

I am grateful to my hon. Friend, who I think covered both bases there very eloquently. He makes an important point on this issue. The change will make a real difference to people’s lives, so I commend him for his work.

New clause 1 was tabled by my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) and would give the Secretary of State the power to introduce a licensing regime for aesthetic non-surgical cosmetic procedures, making it an offence for someone to practise without a licence. I thank her for bringing this to the House today. In that context, I also pay tribute to the right hon. Member for North Durham (Mr Jones); my hon. Friend the Member for Thurrock (Jackie Doyle-Price), who has taken a very close interest in the issue; and of course my hon. Friend the Member for Sevenoaks (Laura Trott) not only for taking a close interest in the issue, but for her success, with her private Member’s Bill, in moving the dial further forward on the issue more broadly.

As I said in Committee, I entirely understand the intention behind the amendment and that a strong case has been made for further regulation in this area. I and the Department are keen to work with stakeholders, including Members of this House on both sides, to see whether we can take this forward in the most appropriate way and clarify the scope of any further regulation. We are happy—we had a very positive meeting, which was alluded to—and I hope that we will be able to continue to explore the issue with hon. and right hon. Members.

In this context, I also commend the all-party parliamentary group on beauty, aesthetics and wellbeing for its important work. Its inquiry highlights the huge range of non-surgical cosmetic procedures available, which vary in their level of complexity and invasiveness. We are carefully considering the findings of that report, including, in that context, its recommendation for a licensing system. We look forward to reporting our conclusions from that work early in 2022. I look forward to working with my right hon. Friend the Member for Romsey and Southampton North and others on that.

Amendment 57 was tabled by the hon. Member for Wirral West (Margaret Greenwood). I can entirely understand where she is coming from—that the professions protected in law must be the right ones, with the right regulatory oversight, recognising that regulation is there for safety. We believe there is no immediate case to change the professions that are regulated, but we will consider whether any new groups of workers should be brought into statutory regulation, and the power to remove professions from regulations would only be used where regulation is no longer required for the protection of the public. For these reasons, we think the approach we are adopting is the right one, but I always reflect on what she says. Even when I do not entirely agree with all of it, I always reflect carefully because she has taken a long-standing interest in these issues.

The hon. Member for Brent Central (Dawn Butler) raised the issue of the title of “nurse” and protection for it. The title “registered nurse” is protected in law. Currently —she is right—the title “nurse” is not protected, given that it is used across multiple professions, including dental nurses, school nurses, veterinary nurses and similar. As has been pointed out by the interim chief nursing officer for Scotland, any change would need careful consideration of the impact on other groups currently using the title “nurse” outside healthcare settings.

I can see the benefit in providing reassurance and clarity for both patients and professionals. I would also note that the protection of a title is only one part of the regulatory system and the complexities associated with that. I understand where the hon. Member is coming from with her new clause 12. What I would say is that any subsequent change could form part of the legislative reform programme for the Nursing and Midwifery Council, which will be taken forward by secondary legislation made under section 60 of the Health Act 1999. But we do not feel we are able to accept her new clause, as drafted at the moment, because we do not feel that it addresses those fundamental challenges.

[Dawn Butler]

rose—

[Edward Argar]

If the hon. Member is going to be brief, I will of course give way to her.

[Dawn Butler]

I was going to quickly say that the Government’s response to Alison Leary’s very good petition says that the Government understand it. We could pass the new clause today and then the Minister could amend it in Committee.

[Edward Argar]

I am grateful to the hon. Lady, but we have had the Committee. We are now at the stage where we have been through this, and I therefore do not think it would be appropriate to pass an amendment that we thought was flawed in its drafting. I can understand the intent behind it, and I have said that I will continue to reflect on that, but we do not feel we can support the amendment as drafted.

On amendment 10 and new clause 28, hon. and right hon. Members who have spoken to those amendments from both sides of the House have raised something that I think is of huge importance to all Members of this House. As I said in my opening remarks, we all recognise that technology, kit and buildings are all wonderful if we invest in them, but they are nothing without the people—the professionals—who know how to care, are able to care and are able to use that kit to provide the best possible outcomes for our constituents. The workforce are in a sense the beating heart of our NHS, and it is important that I again recognise and join the Opposition in paying tribute to the work undertaken by the workforce.

I appreciate entirely the strongly held, sincerely held and, as ever with my right hon. Friend the Member for South West Surrey (Jeremy Hunt), well-informed views that he brings to this debate, based on his extensive experience. I would extend that to the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders), in a spirit of bipartisan cordiality. I hope I have been able to help to reassure colleagues just how seriously we take this issues. Hon. and right hon. Members have been right to raise the issue. We reflect very carefully on it. We have already, as I have said, not only set out plans for elective recovery and further reforms to improve recruitment and support for our workforce, but announced yesterday the merger of Health Education England with NHS England, which we believe is an important next step in making sure that workforce needs can be considered in the round. The other key element is, as I say, the development, commissioned in July, of a robust, long-term—15-year—strategic framework for the health and social care workforce.

We are in no way complacent or resting on our laurels in the case of the workforce. Despite the significant progress we have made in recruiting more nurses and more doctors, there is clearly a lot more to do. We recognise that, and I believe it was a point well made by my hon. Friend the Member for Boston and Skegness (Matt Warman). He declared his interest. I do not know whether I need to, but his wife is a friend of mine; I should probably declare that too. He made some important points, a key point being that this is not just about projections for recruitment. It is absolutely right that we are focused, as we are, on the retention of our existing highly trained, highly skilled and highly experienced workforce. We look at what measures we can continue to take to address those challenges.

There is the need to recognise that that workforce—the workforce who are delivering on elective recovery and who are delivering on tackling those waiting lists—are the same people who have been working flat out throughout this pandemic, and emotionally and physically need the space and time to be able to recover. We recognise that and take it extremely seriously. I think it was my hon. Friend the Member for Peterborough (Paul Bristow)—he has jumped around the Chamber slightly in taking his seat—who made the point about reporting and monitoring mechanisms to know how the framework is working and that we are doing the right thing. While we are not, I have to say, fully convinced by the case made by my right hon. Friend the Member for South West Surrey, I take the point made by my hon. Friend the Member for Peterborough about that. I will continue to reflect very carefully on that, on what my right hon. Friend has tabled and on the points he made in debate and in his many meetings with me and other ministerial colleagues.

In the minute or so I have left, I want to briefly touch on the HSSIB amendments, which I know are important, particularly to the hon. Member for Central Ayrshire (Dr Whitford), but I think she reflects broader opinion in this House. As discussed in Committee, the definition given in clause 108(2) is intentionally broad. HSSIB will be carrying out a range of investigations, and we believe it would be impossible to prospectively identify the material that will be gathered and should therefore be protected by safe space. Similarly, while I take the point she makes about senior coroners and coroners’ involvement, we believe that we have struck the right balance in not extending the safe space exemptions more widely, but recognising the unique status that those judicial office holders have.

I hope I have been able to cover the main themes of the amendments tabled in this group. I hope I have been able to reassure hon. and right hon. Members on both sides of this House, particularly in respect of the workforce, just how seriously Her Majesty’s Government take that issue, and the points genuinely and sincerely made by Members on both sides of the House in that context.

Question put and agreed to.

New clause 36 accordingly read a Second time, and added to the Bill.

New Clause 37

Offence of offering to carry out virginity testing: England and Wales

‘(1) It is an offence under the law of England and Wales—

(a) for a person in England and Wales to offer to carry out virginity testing in the United Kingdom or virginity testing that has a sufficient jurisdictional connection, or

(b) for a person anywhere to offer to carry out virginity testing if the person is a United Kingdom national or habitually resident in England and Wales.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1)(a) if it is carried out in relation to a person who is—

(a) a United Kingdom national, or

(b) habitually resident in the United Kingdom.

(3) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: England and Wales)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: England and Wales)(2).’ —(Edward Argar.)

This new clause creates an offence under the law of England and Wales of offering to carry out virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 38

Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales

‘(1) It is an offence under the law of England and Wales for a person who is in England and Wales, or for a person who is outside England and Wales but who is a United Kingdom national or habitually resident in England and Wales, to aid, abet, counsel or procure the carrying out of virginity testing that has a sufficient jurisdictional connection.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1) if it is carried out in relation to a person who is—

(a) in the United Kingdom,

(b) a United Kingdom national, or

(c) habitually resident in the United Kingdom.

(3) This section does not affect the application to an offence under section (Offence of virginity testing: England and Wales) of any rule of law relating to aiding, abetting, counselling or procuring.

(4) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: England and Wales)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: England and Wales)(2).’. —(Edward Argar.)

This new clause creates an offence of aiding etc a person to carry out virginity testing in circumstances where the carrying out of that testing might not itself be an offence (depending on the location or status of the person carrying out the testing)

Brought up, read the First and Second time, and added to the Bill.

New Clause 39

Virginity testing offences in England and Wales: penalties

‘(1) A person who commits an offence under section (Offence of virginity testing: England and Wales), (Offence of offering to carry out virginity testing: England and Wales) or (Offence of aiding or abetting etc a person to carry out virginity testing: England and Wales), is liable—In subsection (1)(a) “the maximum summary term for either-way offences” means—

(a) on summary conviction, to imprisonment for a term not exceeding the maximum summary term for either-way offences or a fine (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).

(c) in relation to an offence committed before the time when paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 comes into force, 6 months;

(d) in relation to an offence committed after that time, 12 months.’ —(Edward Argar.)

This new clause sets out the penalties for the new offences under the law of England and Wales relating to virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 40

Offence of virginity testing: Scotland

‘(1) It is an offence under the law of Scotland for a person to carry out virginity testing.

(2) “Virginity testing” means the examination of female genitalia, with or without consent, for the purpose (or purported purpose) of determining virginity.

(3) An offence is committed under subsection (1) only if the person—

(a) is in Scotland, or

(b) is outside the United Kingdom, and is a United Kingdom national or habitually resident in Scotland.

(4) “United Kingdom national” means an individual who is—

(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

(b) a person who under the British Nationality Act 1981 is a British subject, or

(c) a British protected person within the meaning of that Act.

(5) In subsection (2), “female genitalia” means a vagina or vulva.’

This new clause creates an offence under the law of Scotland of virginity testing.—(Edward Argar.)

Brought up, read the First and Second time, and added to the Bill.

New Clause 41

Offence of offering to carry out virginity testing: Scotland

‘(1) It is an offence under the law of Scotland—

(a) for a person in Scotland to offer to carry out virginity testing in the United Kingdom or virginity testing that has a sufficient jurisdictional connection, or

(b) for a person anywhere to offer to carry out virginity testing if the person is a United Kingdom national or habitually resident in Scotland.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1)(a) if it is carried out in relation to a person who is—

(a) a United Kingdom national, or

(b) habitually resident in the United Kingdom.

(3) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: Scotland)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: Scotland)(2).’ —(Edward Argar.)

This new clause creates an offence under the law of Scotland of offering to carry out virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 42

Offence of aiding or abetting etc a person to carry out virginity testing: Scotland

‘(1) It is an offence under the law of Scotland for a person who is in Scotland, or for a person who is outside Scotland but who is a United Kingdom national or habitually resident in Scotland, to aid, abet, counsel, procure or incite the carrying out of virginity testing that has a sufficient jurisdictional connection.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1) if it is carried out in relation to a person who is—

(a) in the United Kingdom,

(b) a United Kingdom national, or

(c) habitually resident in the United Kingdom.

(3) This section does not affect the application to an offence under section (Offence of virginity testing: Scotland) of any rule of law relating to aiding, abetting, counselling, procuring or inciting.

(4) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: Scotland)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: Scotland)(2).’ —(Edward Argar.)

This new clause creates an offence of aiding etc a person to carry out virginity testing in circumstances where the carrying out of that testing might not itself be an offence (depending on the location or status of the person carrying out the testing).

Brought up, read the First and Second time, and added to the Bill.

New Clause 43

Virginity testing offences in Scotland: penalties and supplementary

‘(1) A person who commits an offence under section (Offence of virginity testing: Scotland), (Offence of offering to carry out virginity testing: Scotland) or (Offence of aiding or abetting etc a person to carry out virginity testing: Scotland), is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).

(2) Where a person outside Scotland commits an offence under section (Offence of virginity testing: Scotland), (Offence of offering to carry out virginity testing: Scotland) or (Offence of aiding or abetting etc a person to carry out virginity testing: Scotland) the person may be prosecuted, tried and punished for the offence—

(a) in a sheriff court district in which the person is apprehended or in custody, or

(b) in a sheriff court district determined by the Lord Advocate,

as if the offence had been committed in that district.

Where subsection (2) applies, the offence is, for all purposes incidental to or consequential on the trial and punishment, deemed to have been committed in that district.

(3) In this section “sheriff court district” is to be construed in accordance with section 307(1) of the Criminal Procedure (Scotland) Act 1995 (interpretation).’—(Edward Argar.)

This new clause sets out the penalties for the new offences under the law of Scotland relating to virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 44

Offence of virginity testing: Northern Ireland

‘(1) It is an offence under the law of Northern Ireland for a person to carry out virginity testing.

(2) “Virginity testing” means the examination of female genitalia, with or without consent, for the purpose (or purported purpose) of determining virginity.

(3) An offence is committed under subsection (1) only if the person—

(a) is in Northern Ireland, or

(b) is outside the United Kingdom, and is a United Kingdom national or habitually resident in Northern Ireland.

(4) “United Kingdom national” means an individual who is—

(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

(b) a person who under the British Nationality Act 1981 is a British subject, or

(c) a British protected person within the meaning of that Act.

(5) In subsection (2), “female genitalia” means a vagina or vulva.’ —(Edward Argar.)

This new clause creates an offence under the law of Northern Ireland of virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 45

Offence of offering to carry out virginity testing: Northern Ireland

‘(1) It is an offence under the law of Northern Ireland—

(a) for a person in Northern Ireland to offer to carry out virginity testing in the United Kingdom or virginity testing that has a sufficient jurisdictional connection, or

(b) for a person anywhere to offer to carry out virginity testing if the person is a United Kingdom national or habitually resident in Northern Ireland.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1)(a) if it is carried out in relation to a person who is—

(a) a United Kingdom national, or

(b) habitually resident in the United Kingdom.

(3) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: Northern Ireland)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: Northern Ireland)(2).’ —(Edward Argar.)

This new clause creates an offence under the law of Northern Ireland of offering to carry out virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 46

Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland

‘(1) It is an offence under the law of Northern Ireland for a person who is in Northern Ireland, or for a person who is outside Northern Ireland but who is a United Kingdom national or habitually resident in Northern Ireland, to aid, abet, counsel or procure the carrying out of virginity testing that has a sufficient jurisdictional connection.

(2) Virginity testing has a sufficient jurisdictional connection for the purposes of subsection (1) if it is carried out in relation to a person who is—

(a) in the United Kingdom,

(b) a United Kingdom national, or

(c) habitually resident in the United Kingdom.

(3) This section does not affect the application to an offence under section (Offence of virginity testing: Northern Ireland) of any rule of law relating to aiding, abetting, counselling or procuring.

(4) In this section—

“United Kingdom national” has the meaning given by section (Offence of virginity testing: Northern Ireland)(4);

“virginity testing” has the meaning given by section (Offence of virginity testing: Northern Ireland)(2).’ —(Edward Argar.)

This new clause creates an offence of aiding etc a person to carry out virginity testing in circumstances where the carrying out of that testing might not itself be an offence (depending on the location or status of the person carrying out the testing).

Brought up, read the First and Second time, and added to the Bill.

New Clause 47

Virginity testing offences in Northern Ireland: penalties

‘A person who commits an offence under section (Offence of virginity testing: Northern Ireland), (Offence of offering to carry out virginity testing: Northern Ireland) or (Offence of aiding or abetting etc a person to carry out virginity testing: Northern Ireland) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).” —(Edward Argar.)

This new clause sets out the penalties for the new offences under the law of Northern Ireland relating to virginity testing.

Brought up, read the First and Second time, and added to the Bill.

New Clause 48

Virginity testing: consequential amendments

‘Schedule (Virginity testing: consequential amendments) contains consequential amendments.’—(Edward Argar.)

This new clause introduces a Schedule of consequential amendments relating to the new virginity testing offences.

Brought up, read the First and Second time, and added to the Bill.

--- Later in debate ---

[Mr Deputy Speaker (Mr Nigel Evans)]

We are now coming on to the next group of amendments. As hon. Members can see, we have only an hour left, so can I plead to everyone who is participating, including the Front Benchers: short contributions, please, so we can get as many people in as we possibly can?

New Clause 62

Pharmaceutical services: remuneration in respect of vaccines etc

“(1) In section 164 of the National Health Service Act 2006 (remuneration for persons providing pharmaceutical services)—

(a) in subsection (8A) for ‘special medicinal products’ substitute ‘any of the following—

(a) drugs or medicines used for vaccinating or immunising people against disease,

(b) anything used in connection with the supply or administration of drugs or medicines within paragraph (a),

(c) drugs or medicines, not within paragraph (a), that are used for preventing or treating a disease that, at the time the regulations are made, the Secretary of State considers to be a pandemic disease or at risk of becoming a pandemic disease,

(d) anything used in connection with the supply or administration of drugs or medicines within paragraph (c), or

(e) a product which is a special medicinal product for the purposes of regulation 167 of the Human Medicines Regulations 2012 (S.I. 2012/1916).’;

(b) in subsection (8D)—

(i) for ‘special medicinal products are’ substitute ‘anything within subsection (8A)(a) to (e) is’;

(ii) in paragraph (b), for ‘special medicinal products’ substitute ‘that thing,’;

(c) subsection (8E), omit the definition of ‘special medicinal product’;

(d) after subsection (8E) insert—

‘(8F) Where regulations include provision made in reliance on subsection (8A)(c) or (d) and the Secretary of State considers that the disease to which it relates is no longer a pandemic disease or at risk of becoming a pandemic disease, the Secretary of State must revoke that provision within such period as the Secretary of State considers reasonable (taking into account, in particular, the need for any transitional arrangements).’

(2) In section 88 of the National Health Service (Wales) Act 2006 (remuneration for persons providing pharmaceutical services)—

(a) in subsection (8A) for ‘special medicinal products’ substitute ‘any of the following—

(a) drugs or medicines used for vaccinating or immunising people against disease,

(b) anything used in connection with the supply or administration of drugs or medicines within paragraph (a),

(c) drugs or medicines, not within paragraph (a), that are used for preventing or treating a disease that, at the time the regulations are made, the Welsh Ministers consider to be a pandemic disease or at risk of becoming a pandemic disease,

(d) anything used in connection with the supply or administration of drugs or medicines within paragraph (c), or

(e) a product which is a special medicinal product for the purposes of regulation 167 of the Human Medicines Regulations 2012 (S.I. 2012/1916).’;

(b) in subsection (8D)—

(i) for ‘special medicinal products are’ substitute ‘anything within subsection (8A)(a) to (e) is’;

(ii) in paragraph (b), for ‘special medicinal products’ substitute ‘that thing,’;

(c) in subsection (8E), omit the definition of ‘special medicinal product’;

(d) after subsection (8E) insert—

‘(8F) Where regulations include provision made in reliance on subsection (8A)(c) or (d) and the Welsh Ministers consider that the disease to which it relates is no longer a pandemic disease or at risk of becoming a pandemic disease, the Welsh Ministers must revoke that provision within such period as the Welsh Ministers consider reasonable (taking into account, in particular, the need for any transitional arrangements).’”—(Edward Argar.)

This amendment replicates the amendments currently made by clause 76 and makes corresponding provision for Wales. As a consequence clause 76 is left out by Amendment 115.

Brought up, and read the First time.

[Edward Argar]

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss the following:

New clause 13—National self-care strategy—

“(1) The Secretary of State must prepare a National Self-Care Strategy to fully integrate self-care for minor ailments into the wider health system.

(2) The National Self-Care Strategy must have regard to the need to—

(a) address inequalities in health literacy;

(b) enhance the understanding of primary and secondary age children on how to self-care;

(c) introduce self-care modules in healthcare professionals’ training curricula and continuing professional development;

(d) make best use of, and expand, the Community Pharmacist Consultation Service;

(e) improve access to effective self-care treatments;

(f) enable community pharmacists to refer people directly to other healthcare professionals;

(g) ensure better support for primary care networks to deliver self-care;

(h) evaluate the use of technologies that have been developed during the COVID-19 pandemic to promote greater self-care; and

(i) accelerate efforts to enable community pharmacists to populate medical records.”

This new clause would ensure that the Secretary of State for Health and Social Care publishes a national self-care strategy to integrate self-care for minor ailments into the health system.

New clause 18—Secretary of State’s duty to report on access to NHS dentistry—

“(1) The Secretary of State must publish an annual report setting out levels of access to NHS dentistry across England and average waiting times for primary care dental treatment in each region, and describing the action being taken to improve them.

(2) NHS England and Health Education England must assist in the preparation of a report under this section, if requested to do so by the Secretary of State.”

This new clause would require the Secretary of State to report annually on the levels of access to NHS dentistry in England, setting out average waiting times for primary care dental treatment in each region, and describing action being taken to improve them as necessary.

New clause 19—Inclusion in the NHS mandate of cancer outcome targets—

“(1) Section 13A of the National Health Service Act 2006 (Mandate) is amended in accordance with subsection (2).

(2) After subsection (2), insert the following new subsection—

‘(2A) The objectives that the Secretary of State considers NHS England should seek to achieve which are specified in subsection (2)(a) must include objectives for cancer treatment defined by outcomes for patients with cancer, and those objectives are to be treated by NHS England as having priority over any other objectives relating to cancer treatment.’”

This new clause would require the Secretary of State to set objectives for the NHS on cancer treatment which are defined by outcomes (such as one-year or five-year survival rates), and would give those objectives priority over any other objectives relating to cancer treatment (such as waiting times).

New clause 20—Annual parity of esteem report: spending on mental health and mental illness—

“Within six weeks of the end of each financial year, the Secretary of State must lay before each House of Parliament a report on the ways in which the allotment made to NHS England for that financial year contributed to the promotion in England of a comprehensive health service designed to secure improvement—

(a) in the mental health of the people of England, and

(b) in the prevention, diagnosis and treatment of mental illness.”

This new clause would require the Secretary of State for Health and Social Care to make an annual statement on how the funding received by mental health services that year from the overall annual allotment has contributed to the improvement of mental health and the prevention, diagnosis and treatment of mental illness.

New clause 23—NHS Good Governance Commission—

“(1) Regulations shall provide for the establishment of an NHS Good Governance Commission as a Special Health Authority.

(2) The Commission shall have responsibility for ensuring that anyone appointed to, or elected into, a non-executive role on an NHS Body—

(a) is a fit and proper person for that role; and

(b) has been appointed or elected by a process that the Commission considers appropriate.”

This new clause returns to the position prior to 2012 and ensures independent oversight of important NHS appointments.

New clause 24—Appropriate consent to transplantation activities when travelling abroad—

“The Human Tissue Act 2004 is amended as follows—

‘(1) Section 32 (Prohibition of commercial dealings in human material for transplantation) is amended as follows.

(2) In subsection (1), after paragraph (e) insert—

“(f) travels outside the United Kingdom—

(i) to a country with a system of deemed consent for the donation of controlled material which does not meet the criteria in subsection (1A) and receives any controlled material, for the purpose of transplantation, and

(ii) to a country with a system of explicit consent for the donation of controlled material and receives any controlled material for the purpose of transplantation where the material was obtained without—

(A) the free, informed and specific consent of a living donor, or

(B) the free, informed and specific consent of the donor’s next of kin, where the donor is unable to provide consent; and

(g) receives any controlled material for the purpose of transplantation for which, in exchange for the removal of controlled material—

(i) the living donor, or a third party, receives a financial gain or comparable advantage, or

(ii) from a deceased donor, a third party receives financial gain or comparable advantage.

(1A) The Secretary of State must publish an annual assessment of countries with a system of deemed consent for donation of controlled material determining whether each of those countries—

(a) provides a formal, publicly funded scheme for opting out of deemed consent for donation of controlled material, and

(b) provides an effective programme of public education to its population on the deemed consent system and the opt-out scheme which delivers a high level of public understanding of both.

(1B) For the purposes of paragraphs (f) and (g) in subsection (1), it is immaterial whether the offence of dealing in controlled material for transplantation is caused by an act or an omission.

(1C) For the purposes of paragraph (g) in subsection (1), it is immaterial whether the acts or omissions which form part of the offence take place in the United Kingdom or elsewhere.

(1D) In paragraph (g) in subsection (1), the expression “financial gain or comparable advantage” does not include compensation for loss of earnings and any other justifiable expenses caused by the removal or by the related medical examinations, or compensation in case of damage which is not inherent to the removal of controlled material.

(1E) Subsection (1F) applies if—

(a) no act which forms part of an offence under subsection (1) takes place in the United Kingdom, but

(b) the person committing the offence has a close connection with the United Kingdom.

(1F) For the purposes of subsection (1e)(b), a person has a close connection with the United Kingdom if, and only if, the person was one of the following at the time the acts or omissions concerned were done or made—

(a) a British citizen,

(b) a British overseas territories citizen,

(c) a British National (Overseas),

(d) a British Overseas citizen,

(e) a person who under the British Nationality Act 1981 was a British subject,

(f) a British protected person within the meaning of that Act,

(g) an individual ordinarily resident in the United Kingdom,

(h) a body incorporated under the law of any part of the United Kingdom,

(i) a Scottish partnership.

(1G) In such a case, proceedings for the offence may be taken in any criminal court in England and Wales or Northern Ireland.”

(3) In subsection (3), after “subsection (1)” insert “(a) to (e)”.

(6) In subsection (4), after “subsection (1)” insert “(a) to (e)”.

(7) After subsection (4) insert—

“(4A) A person guilty of an offence under subsection (1)(f) or (1)(g) shall be liable—

(a) on summary conviction—

(i) to imprisonment for a term not exceeding 12 months,

(ii) to a fine not exceeding the statutory maximum, or

(iii) to both;

(b) on conviction on indictment—

(i) to imprisonment for a term not exceeding 9 years,

(ii) to a fine, or

(iii) to both.”

(6) Section 34 (Information about transplant operations) is amended as follows.

(12) After subsection (2) insert—

“(2A) Regulations under subsection (1) must require specified persons to—

(a) keep patient identifiable records for all instances of UK citizens who have received transplant procedures performed outside the United Kingdom; and

(b) report instances of transplant procedures performed on UK citizens outside the United Kingdom to NHS Blood and Transplant.

(2B) Regulations under subsection (1) must require NHS Blood and Transplant to produce an annual report on instances of UK citizens receiving transplant procedures outside the United Kingdom.”’”

New clause 25—Regulation of the public display of imported cadavers—

“(1) The Human Tissue Act 2004 is amended as follows.

(2) In subsections (5)(a), (6)(a) and (6)(b) of section 1 (authorisation of activities for scheduled purposes) after ‘imported’ insert ‘other than for the purpose of public display’.”

New clause 26—Report on claims for reimbursement of the immigration health surcharge—

“The Secretary of State must publish and lay a Report before Parliament giving the numbers of completed claims that have been made under the immigration health surcharge reimbursement scheme within 6 weeks of the commencement of this Act.”

This new clause requires the Secretary of State to report the number of completed claims under the Immigration Health Surcharge for NHS and care workers from overseas.

New clause 27—Secretary of State’s duty to report on waiting times for treatment—

“The Secretary of State must prepare and publish a report annually on waiting times for treatment in England, disparities in waiting times for treatment in England and the steps being taken to ensure that patients can access services within maximum waiting times in accordance with their rights in the NHS Constitution.”

New clause 30—Problem drug use as a health issue—

“(1) The UK Government will adopt a cross-government approach to drugs policy which treats problem drug use as primarily a health issue (‘the health issue principle’).

(2) In accordance with the health issue principle, the Prime Minister must, as soon as reasonably practicable—

(a) make the Secretary of State for Health and Social Care responsible for leading drugs policy in England,

(b) lay before Parliament a report on the steps that will be taken to transfer responsibilities to the Department for Health and Social Care from other departments, and

(c) undertake a review of devolution and drugs policy in light of that transfer and in accordance with subsection (3).

(3) The review of devolution and drugs policy must consider—

(a) steps to transfer responsibility for drugs policy to the devolved administrations in a manner consistent with the health issue principle and the transfers of responsibilities in England in subsection (2), and

(b) the consistency of the devolution settlement, including the specific reservation of the misuse of drugs under paragraph B1 of Part II of Schedule 5 of the Scotland Act 1998, paragraph 54 of Schedule 7A of the Government of Wales Act 2006 and paragraph 9f of Schedule 3 of the Northern Ireland Act 1998 with the health principle and any associated recommendations for change.

(4) In undertaking that review, the Prime Minister must consult—

(a) the Scottish Ministers,

(b) the Welsh Ministers, and

(c) the Department of Health in Northern Ireland.

(5) A report on the findings of the review must be laid before Parliament within six months of the passing of this Act.”

This new clause would require the UK Government to approach problem drug use primarily as a health issue and, in so doing, to make the Secretary of State for Health and Social Care the lead minister for drugs policy in England. The Prime Minister would also be required to undertake a review of the devolution of responsibility over drugs policy in the new context of recognising problem drug use primarily as a health issue.

New clause 31—Reduction in upper gestation limit for abortion to 22 weeks’ gestation—

“(1) The Infant Life (Preservation) Act 1929 is amended as follows.

In section 1(2) for ‘twenty-eight’ substitute ‘twenty-two’.

(2) The Abortion Act 1967 is amended as follows.

In section 1(1)(a) for ‘twenty-fourth’ substitute ‘twenty-second’.”

This new clause would reduce the upper gestational limit for abortion in most cases to 22 weeks’ gestation.

New clause 32—Resolution of differences over the care of children with life-limiting illnesses—

“(1) This section applies where there is a difference of opinion between a parent of a child with a life-limiting illness and a doctor responsible for the child’s treatment about—

(a) the nature (or extent) of specialist palliative care that should be made available for the child, or

(b) the extent to which palliative care provided to the child should be accompanied by one or more disease-modifying treatments.

(2) Where the authorities responsible for a health service hospital become aware of the difference of opinion they must take all reasonable steps—

(a) to ensure that the views of the parent, and of anyone else concerned with the welfare of the child, are listened to and taken into account;

(b) to make available to the parent any medical data relating to the child which is reasonably required as evidence in support of the parent’s proposals for the child’s treatment (including obtaining an additional medical opinion);

(c) to refer the difference of opinion to any appropriate clinical ethics committee (whether or not within the hospital) or to any other appropriate source for advice.

(3) Where the responsible authorities consider that the difference of opinion is unlikely to be resolved informally, they must take all reasonable steps to provide for a mediation process, between the parent or parents and the doctor or doctors, which is acceptable to both parties.

(4) In the application of subsections (2) and (3) the hospital authorities—

(a) must involve the child’s specialist palliative care team so far as possible; and

(b) may refuse to make medical data available if the High Court grants an application to that effect on the grounds that disclosure might put the child’s safety at risk in special circumstances.

(5) Where the difference of opinion between the parent and the doctor arises in proceedings before a court—

(a) the child’s parents are entitled to legal aid, within the meaning of section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Lord Chancellor’s functions) in respect of the proceedings; and the Lord Chancellor must make any necessary regulations under that Act to give effect to this paragraph; and

(b) the court may not make any order that would prevent or obstruct the parent from pursuing proposals for obtaining disease-modifying treatment for the child (whether in the UK or elsewhere) unless the court is satisfied that the proposals—

(i) involve a medical institution that is not generally regarded within the medical community as a responsible and reliable institution, or

(ii) pose a disproportionate risk to the child of significant harm.

(6) Nothing in subsection (4) requires, or may be relied upon so as to require, the provision of any specific treatment by a doctor or institution; in particular, nothing in subsection (4)—

(a) requires the provision of resources for any particular course of treatment; or

(b) requires a doctor to provide treatment that the doctor considers likely to be futile or harmful, or otherwise not in the best interests of the child.

(7) Subsection (4)(a) does not prevent the court from making an order as to costs, or any other order, at any point in the proceedings.

(8) In this section—

‘child’ means an individual under the age of 18;

‘health service hospital’ has the meaning given by section 275 of the National Health Service Act 2006 (interpretation);

‘parent’ means a person with parental responsibility for a child within the meaning of the Children Act 1989; and

‘person concerned with the welfare of the child’ means a parent, grandparent, sibling or half-sibling.

(9) Nothing in this section affects the law about the appropriate clinical practice to be followed as to—

(a) having regard to the child’s own views, where they can be expressed; and

(b) having regard to the views of anyone interested in the welfare of the child, whether or not a person concerned within the welfare of the child within the meaning of this section.”

This new clause has a single purpose, which is to make provision about the resolution of differences of opinion between a child’s parents and the doctors responsible for the child’s treatment.

New clause 34—Visits to care homes—

“(1) Regulation 9 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 is amended as follows.

(2) After Regulation 9, paragraph (3), sub-paragraph (i), insert—

‘(j) facilitating face to face contact between the service user and persons significant to the service user so as to meet the service user’s needs and preferences, having particular regard to their emotional and psychological needs;

(k) where the registered person determines following an individualised risk assessment that unrestricted face to face contact between significant persons and the service user is not possible, facilitating face to face contact with the significant person or persons whom the registered person reasonably believes best meets the needs and preferences of the service user;

(l) where the registered person determines following an individualised risk assessment that no face to face contact between any significant persons and the service user is possible, facilitating contact with significant persons in such other ways as best meets the needs and preferences of the service user and is in accordance with the individualised risk assessment.’

(3) After Regulation 9, paragraph (6), insert—

‘(7) In this regulation

“face to face contact” means contact without fixed physical barriers between the service user and the significant person, but includes contact where the service user and/or relevant person or persons are wearing appropriate personal protective equipment if such is required to prevent or control the spread of infections, including those that are health care associated;

“an individualised risk assessment” means a risk assessment which considers—

(a) the risks to the health and well-being of the service user both of having and not having face to face to contact with either two or more significant persons (for purposes of paragraph 3, sub-paragraph (k)) or one relevant person (for purposes of paragraph 3, sub-paragraph (I));

(b) the risks to the health and well-being of other service users arising from the registered person facilitating face to face contact between the service user and a person or persons significant to that service user; and

(c) the risks to the health and well-being of the service user (and to other service users) of alternative options for contact to minimise the risks identified in (a) and (b).

“significant person” means any person falling within section 4(7) sub-paragraphs (a) to (d) of the 2005 Act (whether or not the service user lacks capacity for purposes of the 2005 Act to decide whether or not to have face to face contact with them) and “person significant to the service user” is to be read accordingly.’”

This new clause would give effect to the recommendation of the Joint Committee on Human Rights to require individualised risk assessments for care home residents, and to ensure procedures are in place for such assessments to be queried where adequate efforts have not been made to enable safe visits to care homes.

New clause 35—Visits to patients in hospital—

“(1) The Secretary of State must by regulations make provision to ensure that arrangements are made to allow visitors to patients staying in hospital.

(2) The regulations must ensure that any such arrangements observe the following principles—

(a) Safety – The approach to visiting must balance the health and safety needs of patients, staff, and visitors, and ensure risks are mitigated.

(b) Emotional well-being – Allowing visitors is intended to support the emotional well-being of patients by reducing any potential negative impacts related to social isolation.

(c) Equitable access – All patients must be given equitable access to receive visitors, consistent with their preferences and within reasonable restrictions that safeguard patients.

(d) Flexibility – The physical/infrastructure characteristics of the hospital, its staffing availability, the risks arising from any outbreak of disease in the hospital and the availability of personal protective equipment are all variables to take into account when setting hospital-specific policies.

(e) Equality – Patients have the right to choose their visitors.”

This new clause would require the Secretary of State to make regulations providing for rights to visit patients in hospital.

New clause 50—Amendment of the law relating to abortion—

“(1) The Offences Against the Person Act 1861 is amended as follows.

(2) In section 58 (administering drugs or using instruments to procure abortion)—

(a) omit the words from the beginning to ‘intent, and’;

(b) at the end insert ‘; but this section does not apply to a woman in relation to the procurement of her own miscarriage.’

(3) In section 59 (procuring drugs, etc. to cause abortion), at the end insert ‘; but this section does not apply to a woman in relation to the rocurement of her own miscarriage.’”

This new clause would have the effect that a woman could not be held criminally liable under the Offences against the Person Act 1861 in relation to procuring, or attempting to procure, her own abortion.

New clause 51—Termination of pregnancy on the grounds of the sex of the foetus—

“Nothing in section 1 of the Abortion Act 1967 is to be interpreted as allowing a pregnancy to be terminated on the grounds of the sex of the foetus.”

This new clause would clarify that abortion on the grounds of the sex of the foetus is illegal.

New clause 52—Introduction of upper gestational limit on abortion on the grounds of disability—

“(1) The Abortion Act 1967 is amended as follows.

(2) In section 1 (Medical termination of pregnancy) at the beginning of sub-paragraph (d) to paragraph (1), insert—

‘that the pregnancy has not exceeded the gestational limit identified in sub-paragraph (a) and’”.

This new clause would introduce an upper gestational limit on abortion on the grounds of disability equal to the upper gestational limit on most other abortions

New clause 53—Review of effect on migrants of charges for NHS treatment—

“(1) Within six months of the passage of this Act, the Secretary of State must conduct a review of the effect on migrants of charges for NHS treatment, and lay a report of that review before Parliament.

(2) Before completing the review, the Secretary of State must consult representatives of groups subject to such charges.”

New clause 54—Equality impact analyses of provisions of this Act—

“(1) The Secretary of State must review the equality impact of the provisions of this Act in accordance with this section and lay a report of that review before the House of Commons within six months of the passage of this Act.

(2) A review under this section must consider the impact of those provisions on—

(a) households at different levels of income,

(b) people with protected characteristics (within the meaning of the Equality Act 2010),

(c) the Government’s compliance with the public sector equality duty under section 149 of the Equality Act 2010, and

(d) equality in different parts of the United Kingdom and different regions of England.

(3) A review under this section must include a separate analysis of each section of the Act, and must also consider the cumulative impact of the Act as a whole.”

New clause 56—Abolition of prescription charges—

“(1) Charges may not be made for NHS prescriptions.

(2) Within six weeks of the passage of this Act, the Secretary of State must exercise the relevant powers under the National Health Service Act 2006 to give effect to subsection (1).

(3) Subsection (1) does not apply to any charges which may be made before the action necessary to give effect to that subsection has been taken under subsection (2).”

New clause 60—Duty to consider residents of other parts of UK—

“For section 13O of the National Health Service Act 2006 substitute—

‘130 Duty to consider residents of other parts of UK

(1) In making a decision about the exercise of its functions, NHS England must have regard to any likely impact of the decision on—

(a) the provision of health services to people who reside in Wales, Scotland or Northern Ireland, or

(b) services provided in England for the purposes of—

(i) the health service in Wales,

(ii) the system of health care mentioned in section 2(1)(a) of the Health and Social Care (Reform) Act (Northern Ireland) 2009 (c. 1 (N.I.)), or

(iii) the health service established under section 1 of the National Health Service (Scotland) Act 1978.

(2) The Secretary of State must publish guidance for NHS England on the discharge of the duty under subsection (1).

(3) NHS England must have regard to guidance published under subsection (2).’”

This new clause places a duty on NHS England to consider the likely impact of their decisions on the residents of Wales, Scotland and Northern Ireland, and to consider the impact of services provided in England on patient care in Wales, Scotland and Northern Ireland.

New clause 61—Interoperability of data and collection of comparable healthcare statistics across the UK—

“(1) The Health and Social Care Act 2012 is amended as follows.

(2) In section 250 (Powers to publish information standards)—

(a) in subsection (3), at the beginning, insert ‘Subject to subsection (3A)’;

(b) after subsection (3), insert the following subsection—

‘(3A) The Secretary of State may also exercise the power under subsection (1) so as to specify binding data interoperability requirements which apply across the whole of the United Kingdom, and an information standard prepared and published by virtue of this subsection may apply to any public body which exercises functions in connection with the provision of health services anywhere in the United Kingdom.’

(c) after subsection (6E) (inserted by section 79 of this Act), insert the following subsection—

‘(6F) The Secretary of State must report to Parliament each year on progress on the implementation of an information standard prepared in accordance with subsection (3A).’

(3) In section 254 (Powers to direct Information Centre to establish information systems), after subsection (2), insert—

‘(2A) The Secretary of State must give a direction under subsection (1) directing the Information Centre to collect and publish information about healthcare performance and outcomes in all parts of the United Kingdom in a way which enables comparison between different parts of the United Kingdom.

(2B) Scottish Ministers, Welsh Ministers and Northern Ireland Ministers must arrange for the information relating to the health services for which they have responsibility described in the direction made under subsection (2A) to be made available to the Information Centre in accordance with the direction.’”

This new clause would enable the Secretary of State to specify binding data interoperability standards across the UK, require the collection and publication of comparable information about healthcare performance and outcomes across the UK, and require Ministers in the devolved institutions to provide information on a comparable basis.

New clause 63—NHS duty to carers—

“NHS bodies must identify unpaid carers who come into contact with NHS services and ensure that their health and wellbeing is taken into account when decisions are made concerning the health and care of the person or people for whom they care.”

New clause 64—Review of public health and health inequalities effects—

“(1) The Secretary of State for Health and Social Care must review the public health and health inequalities effects of the provisions of this Act and lay a report of that review before the House of Commons within six months of the passing of this Act.

(2) A review under this section must consider—

(a) the effects of the provisions of this Act on socioeconomic inequalities and on population groups with protected characteristics as defined by the 2010 Equality Act,

(b) the effects of the provisions of this Act on life expectancy and healthy life expectancy in the UK,

(c) the effects of the provisions of this Act on the levels of relative and absolute poverty in the UK, and

(d) the effects of the provisions of this Act on health inequalities.”

Amendment 89, in clause 4, page 2, line 40, after first “the” insert “physical and mental”.

This amendment requires NHS England to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 67, page 3, line 7, at end insert—

“(d) health inequalities.”

This amendment would modify the triple aim to explicitly require NHS England to take account of health inequalities when making decisions.

Amendment 90, page 3, line 10, after “of” insert “physical and mental”.

This amendment requires NHS England to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 44, in clause 6, page 3, line 40, leave out “person” and insert “relevant public body”.

Amendment 45, page 4, line 1, leave out “person” and insert “public body”.

Amendment 46, page 4, line 4, after “employees”, insert

“, within their terms and conditions of employment,”.

Government amendments 83 and 84.

Amendment 70, page 48, line 34, leave out clause 39.

Amendment 93, in clause 44, page 49, line 31, after first “the” insert “physical and mental”.

This amendment will require NHS Trusts to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 94, page 49, line 36, after first “of” insert “physical and mental”.

This amendment will require NHS Trusts to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 71, page 49, line 39, at end insert—

“(d) health inequalities.”

This amendment would modify the triple aim to explicitly require NHS trusts to take account of health inequalities when making decisions.

Amendment 95, in clause 58, page 55, line 23, after first “the” insert “physical and mental”.

This amendment will require NHS foundation trusts to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 96, page 55, line 28, after first “of” insert “physical and mental”.

This amendment will require NHS foundation trusts to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 97, in clause 66, page 61, line 26, after first “the” insert “physical and mental”.

This amendment will require decisions on licensing of health care to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Amendment 98, page 61, line 32, after first “of” insert “physical and mental”.

This amendment will require decisions on licensing of health care to prioritise both the physical and mental health and well-being of the people of England and to work towards the prevention, diagnosis or treatment of both physical and mental illness, replicating the parity of esteem duty introduced in the Health and Social Care Act 2012.

Government amendment 115.

Amendment 60, page 71, line 6, leave out clause 80.

This amendment is to ensure that social care assessments take place prior to discharge from hospital.

Amendment 73, in clause 80, page 71, line 9, at end insert—

“(2A) A social care needs assessment must be carried out by the relevant local authority before a patient is discharged from hospital or within 2 weeks of the date of discharge.

(2B) Each integrated care board must agree with all relevant local authorities the process to apply for social care needs assessment in hospital or after discharge, including reporting on any failures to complete required assessments within the required time and any remedies or penalties that would apply in such cases.

(2C) Each integrated care board must ensure that—

(a) arrangements made for the discharge of any patient without a relevant social care assessment are made with due regard to the care needs and welfare of the patient, and

(b) the additional costs borne by a local authority in caring for a patient whilst carrying out social care needs assessments after a patient has been discharged are met in full.

(2D) The Secretary of State must publish an annual report on the effectiveness of assessment of social care needs after hospital discharge, including a figure of how many patients are readmitted within 28 days.”

Government amendments 116 to 121.

Government amendment 85.

Government amendments 122 to 126.

Government amendment 128.

Amendment 82, in clause 135, page 117, line 14, at end insert—

“(2A) Regulations may only be made under this Act with the consent of the—

(a) Scottish Ministers insofar as they make provision for any matter which falls within the legislative competence of the Scottish Parliament,

(b) Welsh Ministers insofar as they make provision for any matter which falls within the legislative competence of Senedd Cymru, and

(c) Northern Ireland Ministers insofar as they make provision for any matter which falls within the legislative competence of the Northern Ireland Assembly.”

This amendment would require the Secretary of State for Health and Social Care to obtain the consent of the relevant devolved government before powers to make regulations under the Act in an area falling within the legislative competence of a devolved institution, are exercised.

Government amendments 129 to 133.

Amendment 103, in schedule 6, page 186, line 4, at end insert—

“‘relevant Health Overview & Scrutiny Committee’ means any Health Overview and Scrutiny Committee in an area to which the proposal for a reconfiguration of NHS services relates.”.

Amendment 104, in schedule 6, page 186, line 31, at end insert—

“(c) must consult relevant Health Overview & Scrutiny Committees.”

Amendment 105, in schedule 6, page 186, line 43, at end insert—

“(aa) have regard to, and publish, the clinical advice of the Integrated Care Board’s Medical Director in relation to any decision under sub-paragraph (2)(a),

(b) publish a statement demonstrating that any decision made under sub-paragraph (2)(a) is in the public interest, and”.

Amendment 54, in schedule 10, page 204, line 7, after “(1),” insert

“not undermine an NHS provider’s ability to provide a service whilst maintaining the pay rates in Agenda for Change, pensions and the other terms and conditions of all eligible NHS staff and”.

This amendment aims to ensure that the pay rates of Agenda for Change, pensions, and other terms and conditions of all eligible NHS staff are not undermined as a result of the adoption of the NHS payment scheme.

Amendment 55, in schedule 10, page 204, line 39, after “following” insert

“on the likely impact of the proposed scheme”.

This amendment requires NHS England to consult stakeholders on the likely impact of the NHS payment scheme.

Amendment 56, in schedule 10, page 204, line 41, at end insert—

“(ba) all relevant trade unions and other organisations representing staff who work in the health and care sectors;”.

This amendment aims to ensure that all relevant trade unions and other organisations representing staff who work in the health and care sectors are consulted by NHS England on the likely impact of the proposed NHS Payment Scheme.

[Edward Argar]

Being conscious of the time, I will endeavour to be brief and try to scoop up in my winding-up speech any particular concerns expressed during the debate.

While this Bill is predominantly about the health service in England, and the majority of measures are England-only, a small number of provisions in the Bill will deliver benefits to residents in all four nations of the United Kingdom. The Government have worked with the devolved Administrations to improve services and outcomes for people across the country, and we have now agreed a package of amendments to some provisions in the Bill to address concerns raised by the DAs. Following that constructive engagement, we are pleased that DA Ministers supported our approach. On 15 November, the Northern Ireland Assembly voted to grant legislative consent motions for the provisions on reciprocal healthcare, medicine information systems and professional regulations.

This group of amendments contains the amendments negotiated with the DAs, and I extend my thanks not only to the DA Ministers and officials, but to the territorial Secretaries of State and offices of this United Kingdom in London for their work. There remain a small number of areas in which final agreement is needed, and one area where work is still ongoing. The group also contains technical Government amendments to ensure that no unintended tax consequences arise as a result of the powers in this Bill.

I will speak briefly to new clause 62 and amendments 115 and 129 and then I will pause to allow hon. Members on both sides to make their contributions and seek to address their points subsequently.

New clause 62 replicates the amendments currently made by clause 76 for England and makes corresponding provision for Wales and, as a consequence, clause 76 is removed by amendment 115, so that the changes made by it, together with the corresponding changes for Wales, can be set out in one place.

The new clause amends both the National Health Service Act 2006 and the National Health Service (Wales) Act 2006, enabling regulations to be made in respect of both England and Wales, allowing for further exemptions from the obligation to reimburse pharmacies under the standard NHS arrangements when centrally stocked products have been supplied free of charge to community pharmacies without the need to reimburse them. That will allow the respective Ministers to create limited additional exemptions to those that can already be created by the existing regulation-making powers introduced in 2017 for unlicensed medicines—more commonly known as “specials”. The additional exemptions are restricted to vaccinations and immunisations, medicinal products used for the prevention or treatment of disease in a pandemic, and associated products, such as diluents and syringes.

There are various reasons why we may seek to centrally procure vaccines or products used to treat a pandemic. When supplying products directly to pharmacies free of charge, we do not want to reimburse pharmacies as well as purchasing the stock itself. Currently, the Government would pay twice as the legislative framework makes provision for the reimbursement price paid to pharmacies to be set at zero only for specials and not for other products.

I am conscious that a considerable number of Members will want to speak either on the devolution aspect of this legislation, which was debated extensively in Committee and to which I will respond in my winding-up speech if I have time. I am also conscious that other right hon. and hon. Members have amendments to which they wish to speak at some length—well, hopefully not at some length, but clearly—to put their points across on important issues, because this group of amendments covers a wide variety of matters. With your permission, Mr Deputy Speaker, I will pause now to allow maximum time for Back Benchers and others to speak and then try to pick up any points in my winding-up speech.

[Several hon. Members rose—]

--- Later in debate ---

[Sir Mike Penning (Hemel Hempstead) (Con)]

I support new clause 19, which I signed, and will wait to see what the Minister says about it.

I want to take issue with the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders), who turned around and said to Ministers, “Be careful what you wish for.” Our constituents send us here to represent how their taxation is spent in the NHS. When trusts are refusing to build new hospitals in our constituencies when they have the money to do so, and they want to refurbish hospitals and ignore public opinion and their local MPs, that is where the system goes wrong. I am not saying we should go all the way back to the old system, but there should be accountability in trusts when they do not do what our constituents would expect from them. My constituents would expect me to stand up and say this, because we want a new hospital on a greenfield site to look after the people of west Hertfordshire and our trust is refusing. If the shadow Minister ever becomes a Minister, I hope he has those powers.

[Edward Argar]

This group of amendments has clearly been popular and it is a shame that more right hon. and hon. Members did not get to speak. My remarks will be relatively brief.

On the contributions by my hon. Friend the Member for Congleton (Fiona Bruce), my right hon. Friends the Members for Gainsborough (Sir Edward Leigh) and for Basingstoke (Mrs Miller) and the hon. Member for Upper Bann (Carla Lockhart), those are deeply emotive and important issues. I entirely respect the strength and sincerity of genuinely held feelings on both sides of the debate. It is important that such matters are aired in the House, but they quite rightly remain a matter of conscience for individual Members, so I shall say no more than that it is important that everyone recognises the genuine views on both sides of the debate.

I am grateful to my hon. Friend the Member for Basildon and Billericay (Mr Baron) for tabling his new clause 19 and am happy to say that the Government are content to accept it. I know that my hon. Friend’s first concern is the quality of cancer services in this country and the welfare of the patients that they serve. I am pleased that he is keen for us, in accepting the new clause, to explore ahead of the Lords stages of the Bill whether it may give rise to any unintended consequences, with a view to supporting any changes that might need to be made. I look forward to working with him on that in the coming weeks before the Lords stages.

[Mr Baron]

I thank the Minister and the Government for listening and for accepting the new clause in its entirety. It is a progressive step. I and the whole group behind the new clause look forward to working with him. If nuanced changes were required, then, by all means, we would consider them.

[Edward Argar]

I am grateful to my hon. Friend for his intervention.

Let me turn briefly to amendments 93 to 98 in the names of my hon. Friend the Member for Broxbourne (Sir Charles Walker) and my right hon. Friend the Member for Maidenhead (Mrs May). I can reassure all right hon. and hon. Members that the Government remain committed to supporting everyone’s mental health and wellbeing. I pay tribute to my right hon. Friend for the work that she did in advancing this agenda when she was Prime Minister.

Secondly, let me clarify that the current references in the Bill to illness and health cover mental and physical health and, therefore, the view taken was that it was not necessary to make that explicit.

[Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)]

Will the Minister give way?

[Edward Argar]

I fear that I do not have time to cover the other amendments in the four minutes that I have left.

Although I appreciate that my right hon. Friend the Member for Maidenhead and my hon. Friend the Member for Broxbourne will continue to press this matter, may I offer them a meeting with me and the Mental Health Minister to discuss further what they are proposing in advance of the Lords stages? I cannot make any promises or say anything beyond that, but I will meet them to further discuss the sentiments that sit behind their amendments.

Let me turn to my hon. Friend the Member for Aberconwy (Robin Millar), who made his points powerfully and eloquently, as he always does. As a Government of the whole United Kingdom, we have a duty of care to all citizens in the UK, which is why I welcome the clauses already in this legislation that will bring benefit to residents across the UK.

[Bob Seely (Isle of Wight) (Con)]

Will the Minister take my intervention?

[Edward Argar]

If my hon. Friend can do it in 10 seconds.

[Bob Seely]

Please, Minister, do not forget the unavoidably small hospitals, of which there are 12 in isolated communities.

[Edward Argar]

My hon. Friend has made his point. He has made it to me before. I will not forget either him or unavoidably small hospitals, particularly in the Isle of Wight.

On the point made by my hon. Friend the Member for Aberconwy, we do recognise the importance of making sure that health and care data can be shared safely and effectively across the UK to support individual care and improve outcomes for people across the UK.

[Peter Aldous (Waveney) (Con)]

Will my hon. Friend give way?

[Edward Argar]

I am afraid that I cannot give way, because I literally have two minutes. Forgive me, but if my hon. Friend catches me afterwards, I will happily speak to him.

We are already committed to working with officials across the devolved Administrations, noting the devolved nature of health and care policy, but my hon. Friend the Member for Aberconwy is right and makes a very powerful case for data interoperability and clear data standards. I am happy to speak with him further on this issue if he feels that that would be helpful.

I ask the hon. Member for Bootle (Peter Dowd) to forgive me for yesterday. I heard what he said about self-care and I will continue to look carefully at that. I did not ignore him.

I fear that, in the time that we have, there is little more that I can say.

[Peter Aldous]

Will my hon. Friend give way on that point?

[Edward Argar]

Okay, my hon. Friend has 10 seconds.

[Peter Aldous]

The No. 1 issue in my inbox is access to NHS dentistry. New clause 18 provides a framework for addressing that. May I urge the Minister and the Government to consider accepting it?

[Edward Argar]

While we cannot accept that new clause as drafted today, I or the Minister for Dentistry will meet my hon. Friend, if that is helpful, to discuss in more detail the concerns sitting behind his intervention.

Question put and agreed to.

New clause 62 accordingly read a Second time, and added to the Bill.

Health and Care Bill

Edward Argar Excerpts

Consideration of Lords amendments
Wednesday 30th March 2022 Commons Chamber

[The Minister for Health (Edward Argar)]

I beg to move Government amendment (a) to Lords amendment 91.

[Madam Deputy Speaker]

With this it will be convenient to discuss the following:

Lords amendment 91.

Lords amendment 85, and Government motion to disagree.

Lords amendment 86, and Government motion to disagree.

Lords amendment 87, and Government motion to disagree.

Lords amendment 88, and Government motion to disagree.

Lords amendment 92, Government motion to disagree, and Government amendment (a) in lieu.

Lords amendment 95, Government motion to disagree, and Government amendment (a) in lieu.

Lords amendments 52 to 54, 66 to 79, 82, 84, 93, 94, 96 to 101 and 109 to 122.

Lords amendment 123, and amendment (a) thereto.

Lords amendment 124, and amendment (a) thereto.

Lords amendment 125, and amendment (a) thereto.

Lords amendment 126, and amendment (a) thereto.

Lords amendment 127, and amendment (a) thereto.

Lords amendments 128 and 129.

[Edward Argar]

It is a pleasure to debate their lordships’ amendments and to serve opposite the hon. Member for Tooting (Dr Allin-Khan) for our consideration of this group of amendments—I do not usually do so as our portfolios do not always overlap. The amendments in the group all relate to questions of patient safety, patient engagement, public health and building a learning culture in the NHS.

First, may I put on record how proud I am that the Government are protecting the safety of women and girls through the hymenoplasty amendment, which I know has cross-party agreement? I will run through the amendments and concessions that the Government have made on a number of aspects of the Bill before turning to the perhaps more contentious areas in the group. We have tabled amendments to ban the carrying out, offering and aiding and abetting of hymenoplasty in the United Kingdom. We have accepted all the recommendations of the expert panel on hymenoplasty and agree that the procedure is inextricably linked to virginity testing and violence and that it has no place in our society. I offer my gratitude to all the members of that expert panel, to those who have campaigned so long and so hard on the issue and to my hon. Friend the Member for North West Durham (Mr Holden) for his continued hard work to protect vulnerable women and girls.

I urge the House to support amendments 84, 96 and 129, which create a licensing regime for non-surgical cosmetic procedures.

[Mr John Baron (Basildon and Billericay) (Con)]

In the spirit of accepting amendments and suggestions, may I thank the Minister, his officials and his special advisers for accepting the amendment in this place on prioritising cancer outcomes as a means of encouraging earlier diagnosis? That really will drive survival rates up. I also thank the nearly 100 colleagues here and in the other place who helped and supported the campaign. In that spirit, I assure the Minister that we will do what we can to help the Government in ensuring that the legislation prioritising cancer outcomes will have its desired effect at the frontline.

[Edward Argar]

I am grateful to my hon. Friend. Again, I think that I speak for both sides of the House on a cross-party basis in saying that we were pleased to be able to accept his amendment, on which he campaigned hard, in this place. I think that will lead to further improvements in cancer treatment and cancer care outcomes for many people in our country.

I return to the amendments relating to cosmetic regulation. I thank the hon. Members for Member for Swansea East (Carolyn Harris) and for Bradford South (Judith Cummins) and the right hon. Member for North Durham (Mr Jones) on the Opposition Benches as well as my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) and my hon. Friends the Members for Sevenoaks (Laura Trott) and for Thurrock (Jackie Doyle-Price) for their hugely important work in driving forward the agenda. While the amendment is broad, the Government will of course work with stakeholders, including Members of this House, to develop regulations to set out the specific cosmetic treatments that will be subject to licensing and the detailed conditions and training requirements that individuals will have to meet.

[Mr Richard Holden (North West Durham) (Con)]

I thank the Minister for his comments about virginity testing and hymenoplasty and the work done by other hon. Members on parts of the legislation that affect women and girls. One issue with virginity testing and hymenoplasty relates to the family procedure rules—I know that they fall outside his Department—which still permit spouses to apply for a so-called virginity test on the grounds that a marriage is not consummated. Will he speak to his colleagues and perhaps suggest a meeting with me and other campaigners in the area to see if we can remove from legislation some of those issues affecting women and girls?

--- Later in debate ---

[Edward Argar]

My hon. Friend makes an important and highly relevant point. I will certainly pass his request on to colleagues in the Ministry of Justice and the Attorney General’s Office to look at that and, hopefully, meet him to discuss it further.

We are accepting amendments in a number of other areas to improve the quality of services that the NHS provides. First, we are tabling amendments to ensure the full operability of the noble Baroness Hollins’s amendment—Lords amendment 91—on mandatory training on learning disabilities and autism. We have discussed and agreed the changes with her and are content that her amendment, along with our Government amendment, will legislate that all health and social care providers who carry out regulated activities ensure that their staff receive specific training on learning disabilities and autism.

[Dame Caroline Dinenage (Gosport) (Con)]

On that amendment, will my hon. Friend join me in paying tribute to the many people who have campaigned for learning disability and autism training for health and care professionals? I think specifically of Paula McGowan—the training will be named after her son, Oliver McGowan. Training frontline health and care professionals to have a better understanding of learning disability and autism will certainly improve people’s interactions with our health and care services, and it will save lives.

[Edward Argar]

I am happy to join my hon. Friend in paying tribute to Paula McGowan and all those who have campaigned for this and other amendments that the Government have been able to accept to the Bill. It is often easier to pay tribute to right hon. and hon. Members who have championed issues in this House, but often they are merely mouthpieces for those campaigners who have done so much to raise the profile of such issues.

The Government have also taken steps to extend the storage limits for embryos and gametes, removing an existing unfairness. Currently, legislation discriminates between those who have a medical need to freeze their materials and those who do not. Amendments 82, 98, 100 and 122 remove that distinction by introducing a new scheme consisting of 10-year renewable storage periods up to a maximum of 55 years for everyone regardless of medical need. Our proposals were welcomed unreservedly in the other place, and I hope that they will receive a similar reception in this House.

The Government have also tabled a number of amendments in the other place on transparency of payments made and other benefits given to the healthcare sector. Lords amendments 52 to 54, 93, 94 and 97 all deliver on a recommendation from Baroness Cumberlege’s independent medicines and medical devices safety review. They will enable the Secretary of State to make regulations requiring companies to report information about payments or other benefits that they have provided to the healthcare sector.

[Alec Shelbrooke (Elmet and Rothwell) (Con)]

I thank my hon. Friend for what he said, which, with the Cumberlege review, is very important. I urge him again to go further on that review.

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[Edward Argar]

I hear my right hon. Friend’s gentle but firm urgings, and I hope that he will welcome the progress that we have made.

[Sir Mike Penning (Hemel Hempstead) (Con)]

The Cumberlege report was fantastic. The Minister accepted some of what it said but not in relation to Primodos, especially in the area of compensation. Can we look at that again?

[Edward Argar]

I am always happy—or the relevant Minister is always happy—to meet my right hon. Friend on any matter relating to the Department’s work.

Turning to the Health Services Safety Investigations Body—HSSIB—and patient safety, we intend to support the development of a learning culture across the NHS. With that in mind, I would like to turn to Lords amendments 66 and 109. The related clauses concern how we balance the need for those who speak to the HSSIB to feel safe to speak openly and candidly to HSSIB staff, while ensuring that coroners can fulfil their judicial functions. This has been, throughout the passage of the Bill, a difficult balancing act with no perfect answer, which has been given much thought and attention, and on which reasonable people can come to equally valid but different views. However, I have concluded that there is significant strength of feeling in both this House and the other place on whether coroners should have access to protected material held by the HSSIB.

I am grateful to my colleagues in the Ministry of Justice, in particular the Under-Secretary of State for Justice, my hon. Friend the Member for Corby (Tom Pursglove), and to the Chief Coroner for considering the different views judiciously. Recognising that, the Government have decided to accept their lordships’ amendment, which removes the ability of senior coroners to access protected material held by HSSIB through relying on certain powers under the Coroners and Justice Act 2009. We hope that will give reassurance and strengthen the ability of the HSSIB to deliver what we all want across this House, which is to support an open learning culture across the NHS.

This group of amendments also includes a substantial number of amendments to improve public health. In the other place, we brought forward amendments to enable the smooth and effective implementation of restrictions on the advertising of less healthy food and drink. I urge the House to accept Lords amendments 101, and 123 to 128, which allow the necessary preparatory work to take place before the restrictions are due to come into force on 1 January 2023. They also introduce the ability to delay that implementation date via secondary legislation, should that be deemed necessary.

[John Redwood (Wokingham) (Con)]

I welcome very much what the Minister said on the previous Lords amendment concerning safety culture. Can he tell us a little more about what other actions will be taken in lieu of legislation, which is not always the best answer, to encourage the learning, safety and quality culture which is so vital to a great service?

[Edward Argar]

I am grateful to my right hon. Friend, who is absolutely right. We heard in this House, a little earlier this afternoon, the Secretary of State for Health and Social Care present a statement on the Ockenden review. The review has a number of—not recommendations specifically, but urgent action points. Donna Ockenden was very clear on that and my right hon. Friend accepted all of them. One of the themes that came out in that context is people’s fear of speaking up. We believe that the HSSIB will play an important part in stimulating that culture of openness and transparency, and people coming forward without fear. That is why we reflected very carefully and accepted their lordships’ amendment.

[Sir Peter Bottomley (Worthing West) (Con)]

I want to re-emphasise to the Minister and to others the injustice when Dr Hadiza Bawa-Garba, at an inquest three years after an event, led the police to get her prosecuted for gross negligent manslaughter and then the other actions, which I will not rehearse now. If we are going to have doctors as good as Dr Bawa-Garba and others learning from events, we will do better than the previous system. I am glad the Government are accepting the Lords amendment.

[Edward Argar]

I am grateful to the Father of the House, who I believe, in the course of our discussions about whether to accept the Lords amendment, wrote to me, along with other right hon. and hon. Members highlighting that particular case in the context of an open and transparent learning culture.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I thank the Government for accepting the amendment. I raised the issue on Second Reading and I can see the Minister smiling at how many times we have talked about it in Committee and in the prelegislative Committee. It is critical that the safe space is safe. Systems make errors or do not prevent errors, so we need people to be candid. I pay tribute to the Government for accepting that, because it allows HSSIB to have a decent start and a decent chance.

[Edward Argar]

I am grateful to the hon. Lady not only for her comments just now, but for her work on this agenda and on HSSIB over many years on various incarnations of this legislation. She has a right to gently tweak my tail that I could have listened to her in Committee and got here faster, but as she will know, occasionally it takes a little time in Government to be able to move to the compromise that often we all seek.

Turning back to the advertising restrictions, the overall policy direction has been set out effectively through last year’s Government consultation response, this proposed legislation and the debate that has taken place in both Houses.

[Alun Cairns (Vale of Glamorgan) (Con)]

Will the Minister give way?

[Edward Argar]

If I may just finish this point. I suspect my right hon. Friend may speak later on the amendments tabled by my hon. Friend the Member for Buckingham (Greg Smith).

A consultation on secondary legislation will be launched shortly and consultations on the wider guidance to the restrictions, which will support industry and provide further clarity on what to expect, are anticipated later in the year. Therefore, we do not believe there is a need to incorporate a requirement in primary legislation to specify a gap between the date of publication of guidance and implementation of the restrictions, as proposed by my hon. Friend, but I look forward to hearing his speech later. I reassure him that the Government will of course continue to work closely with industry and with him to ensure that the transition is as smooth as possible.

[Alun Cairns]

I am grateful to my hon. Friend for giving way and he pre-empts some of my comments. Does he recognise the significance of the change to the broadcasting and advertising industries? It seems to me that the amendment tabled by my hon. Friend the Member for Buckingham (Greg Smith) is very reasonable in giving 12 months minimum for the industry to prepare for such significant changes.

[Edward Argar]

I am grateful to my right hon. Friend. I know him well but I was not sure if would be able to predict exactly what he was going to say, so I am pleased that I have managed, to a degree, to pre-empt him. I recognise the impact, and that is why we believe we have struck the appropriate balance, both in terms of the time for preparation and implementation, but I will of course listen to what my hon. Friend the Member for Buckingham says when he speaks to his amendments.

Finally, amendment 79 relates to the international healthcare arrangements clause, which amends the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 to enable the Government to implement comprehensive reciprocal healthcare agreements with countries outside the EEA and Switzerland. The clause will give the devolved Governments a power to make regulations giving effect to such agreements in devolved areas of competence. This minor and technical amendment to the definition of devolved competence and the consent requirement in new section 2B(2) reflects the fact that the consent of the Secretary of State under section 8 of the Northern Ireland Act 1998 is given in relation to an Assembly Bill, rather than an Assembly Act. It has no impact on the policy intention of the clause and I hope that hon. Members on both sides of the House will be content to pass the amendment.

On Report in the other place, the Government committed to accept in principle Lords amendment 95 to change the process for regulations that give effect to healthcare agreements, so they are subject to the affirmative resolution procedure. While we continue to support the intention of the amendment, I move that this House disagrees with Lords amendment 95 and moves an amendment in lieu, Government amendment (a). This amendment achieves the same objectives, but amends the international healthcare agreements clause rather than the regulations clause for the Bill to ensure that all regulations made under the soon-to-be-named healthcare international arrangements legislation are subject to the affirmative procedure. This includes any regulations made by the devolved Governments and achieves the objectives of the Lords amendment. This conclusion has been reached following constructive engagement with noble Lords for which the Government are extremely grateful.

In addition, to make parliamentary scrutiny of our healthcare agreements even more robust, we will set out a forward look in annual reports produced under section 6 of the 2019 Act, highlighting any agreements with other countries that are under consideration. We will publish all non-legally binding agreements and their associated impact assessments. I urge the House to accept all those Lords amendments as beneficial to the public and the NHS.

Although I have sought to compromise and reach agreement on many areas, I am afraid that there are a number of Lords amendments that we urge the House to reject. First, let me deal with Lords amendments 85 to 88. I pay tribute to the work of my hon. Friend the Member for Harrow East (Bob Blackman), the chair of the all-party group on smoking and health, for its proposals to help the Government to achieve a smoke-free country by 2030. However, the Government cannot accept these Lords amendments, because the proposals would be very complex to implement, take several years to materialise and risk directing a lot of Government resource into something that we do not see as a sustainable or workable way to fund public health. This would also rightly be a matter for Her Majesty’s Treasury.

The Javed Khan review is under way and I encourage colleagues to wait patiently for that and to be guided by what emerges from it.

[Bob Blackman]

rose—

[Edward Argar]

If I can just finish this point, I will give way to my hon. Friend. Our preference is to continue with a proven and effective model of encouraging tobacco cessation. Ultimately, given the review that is under way and the forthcoming tobacco control plan, which will be published later this year, we do not believe that this Bill is the right place for the proposals.

I will give way to my hon. Friend, but then I wish to turn to the final, important set of Lords amendments on abortion.

[Bob Blackman]

I thank my hon. Friend for giving way and for what he is saying about tobacco control. The recommendations are due to come out next month and most of those—indeed, most of these Lords amendments—refer to carrying out consultations without decisions actually being made. Does he not accept the point about having a consultation, taking people’s views and then deciding what to do?

[Edward Argar]

To a degree, that is why I mentioned the Javed Khan review. We are undertaking a lot of work and let us see what emerges from that, as well as from consultations and other pieces of work, and draw it all together. I can see where my hon. Friend is coming from, but I think that the Government have set out the right approach, so I encourage right hon. and hon. Members to reject their lordships’ amendments.

[Steve Brine (Winchester) (Con)]

Will my hon. Friend give way?

[Edward Argar]

I will if my hon. Friend is brief, but I know that a lot of colleagues wish to speak on the abortion amendment and I want to give them enough time to do so.

[Steve Brine]

Further to the intervention from my hon. Friend the Member for Harrow East, when I published the tobacco control plan in 2019, with the smoke-free ambition for 2030, we in the Government promised to consider the “polluter pays” approach to raising funds for tobacco control and smoking cessation services. The Lords amendments just require the Government to fulfil that commitment, which was barely three years ago, and to consult. I press the Minister on that again because we as a Government committed to doing this less than three years ago.

[Edward Argar]

My understanding—although my recollection may fail me, so I caveat my comment with that—is that this was initially looked at that stage, but was not proceeded with. I know that my hon. Friend will continue to press that point and I pay tribute to him for being the policy Minister at the time and for making huge progress on this agenda. I suspect that we will return to this matter subsequently, and I look forward to the comments of the shadow Minister, the hon. Member for Tooting, in due course.

[Liz Twist (Blaydon) (Lab)]

Will the Minister give way?

[Edward Argar]

I will not now, but I may during my wind-up speech, if I have time. I want to conclude my remarks so that colleagues can make their contributions on the matters that I have referred to, but if there is time, I commit to taking an intervention from the hon. Lady at the end of our consideration of this set of Lords amendments.

We come, finally, to Lords amendment 92 and the amendment offered in lieu relating to abortion. I am aware of strong and sincerely and genuinely held views from Members on all sides of this debate and this issue, and I respect the integrity of their views. Although I will set out why the Government took the action that they did and the procedure that is in place, I emphasise at the outset that, given that this matter is before the House because of an amendment by their lordships, it is right that this is properly considered and that this will be—in line with how we normally treat these matters—a free vote, in which how individual Members vote will be a matter of conscience.

In response to the covid pandemic, an approval was issued in accordance with the Abortion Act 1967 that allowed women to take both pills for early medical abortion at home. That temporary measure addressed a specific and acute medical need, reducing the risk of covid-19 transmission and ensuring continued access to abortion services. My right hon. Friend the Secretary of State announced last month that the approval will end at midnight on 29 August 2022.

[Tonia Antoniazzi (Gower) (Lab)]

Does the Minister acknowledge that, in Wales—[Interruption.]—and in Scotland, telemedical abortion will continue to be available to all women after the covid-19 pandemic has finished? To be honest with the Minister, that needs to follow suit in England.

[Edward Argar]

I would not suggest for a moment that Wales or Scotland should follow England or that England should follow Scotland and Wales. They are devolved competences. Each devolved Administration will rightly form their own view of the balance of benefits, the pros and cons, and that is right. That is what our devolution settlement is for. This House is considering the amendment that was brought here from the Lords and this is an opportunity for Members to express their view on what should happen in this country.

The Government remain of the view that the provision of early medical abortion should return to pre-covid arrangements, and face-to-face services should resume, given that the temporary change was based on a specific set of emergency circumstances. However, we recognise that their lordships have made an amendment in that respect and it is therefore right that this House considers it.

In normal times, we prefer and believe that decisions about the provision of health services are more appropriately dealt with through the usual processes, rather than through primary legislation. We have a number of concerns about the approach taken in the amendment. Parliament has already given the Secretary of State a power to issue approvals under the Abortion Act. That allows the Secretary of State flexibility to make decisions about how healthcare in this area is provided, which can be adapted quickly and easily to respond to changes in service provision or other external circumstances, as was the case with the temporary approval in response to concern about the risk to services from covid-19.

From a process perspective, it is not appropriate, in our view, to insert into primary legislation the intended detail regarding home use of both pills. That would mean that should any issues arise, there would no longer be scope to react quickly, as the Secretary of State did during the pandemic. However, we recognise that that is now a matter for debate and decision by this House.

In addition, Lords amendment 92, as drafted by my noble Friend Baroness Sugg, would not have the intended effect. If agreed to, it would create legal uncertainty for women and medical professionals by including wording on the statute book that does not, in fact, change the law in the way it appears to. On a procedural point, we therefore urge all right hon. and hon. Members to disagree with the Lords in their amendment.

All Members have the opportunity, however, to vote on our amendment (a) in lieu, which we have drafted to ensure, irrespective of colleagues’ views, that the provision does the job it was intended to do. We all agree that it is crucial that the law is clear in this area and does not create any uncertainty for those who rely on it. That is why we have tabled our legally robust amendment in lieu, which stands in my name and which would achieve the intended purpose of Baroness Sugg’s amendment.

It is for right hon. and hon. Members, in a free vote, to judge how they wish to vote on the amendment in lieu. I encourage them to reflect and make their decision when the amendment is pressed to a Division.

[Dr Rosena Allin-Khan (Tooting) (Lab)]

The Opposition congratulate the Lords on their hard work on the Bill, which is much improved from when it left the Commons. We support the Lords amendments, which are sensible and proportionate and will go some way to tackling health inequalities that are still sadly far too prevalent.

Over the past two years, we have seen the very best of our NHS. Publicly owned and free at the point of use, it is the best of us and has protected our families for generations; I hope it will continue to do so for many years to come. Unfortunately, the Government are set on a power grab, and refuse to act to tackle workforce shortages and ever-growing waiting lists. Waiting times for cancer care are now the longest on record, patients with serious mental illnesses are being sent hundreds of miles away for treatment, and one in four mental health beds have been cut since 2010. We deserve better. Our NHS deserves better.

We can all agree that the amendments in this group are wide-ranging, so I will be covering a range of subjects. A number of amendments in the group speak to women’s health. We have seen time and again that the Government are dismissive of women’s health and have ignored the needs of half the population. In its original form, the Bill was far too scant on tackling health inequalities; it is only because of colleagues in the other place and Labour votes that we are making ground on tackling them at all.

Along with the rest of our health team, I am proud to support the continued provision of telemedical abortion services in England. Maintaining the existing provision of at-home early medical abortion following a telephone or video consultation with a clinician is crucial for women’s healthcare. Not only did that preserve access to a vital service during the pandemic; it enabled thousands of women to gain access to urgently needed care more quickly, more safely and more effectively. Women’s healthcare must reflect the needs of those whom it serves. Scrapping telemedical abortion services would drastically reduce access to that vital service, and would simply serve to increase the number of later-term abortions. Everyone should have access to safe and timely healthcare. I say to Ministers: please do not ignore clinical best practice and the expert opinions of organisations and royal colleges.

We welcome provisions to ban hymenoplasty, and the power to create a licensing regime for non-surgical cosmetic procedures. Those too were a result of Labour votes, because the original Bill did not even mention them. Ministers must stop treating women as an afterthought in healthcare provision. However, we are glad to see that the Government have accepted the Lords amendment to remove coroners’ access to material held by the Health Service Safety Investigations Body.

On the NHS frontlines, I see at first hand the pressure placed on staff. Staff must feel protected, and must be encouraged to come forward. It is crucial for the Bill to promote a learning culture, so that any investigation can establish what training and procedures need to change in order to prevent any future mistakes. Only by enshrining that culture can we ensure that staff will feel comfortable about coming forward.

We welcome Baroness Hollins’s amendment to introduce mandatory training on learning disabilities and autism for all regulated health and care staff, and we are pleased to see that the Government support it. Everyone deserves access to safe, informed, individual care, and hopefully the amendment will go some way towards reducing health inequalities that are faced all too regularly by people with learning disabilities and autism.

--- Later in debate ---

[Edward Argar]

Given that I spoke at length in my opening remarks, I will endeavour to use the few minutes remaining to me to cover some of the key points made in the debate. First, I should have said in my opening remarks, and say now to the hon. Member for Linlithgow and East Falkirk (Martyn Day), that I am grateful to the devolved Administrations for the constructive manner in which they have engaged with me and with my Department. I hope that that process has been collegiate and satisfactory from their perspective as well.

Let me clarify my response to a point made by the hon. Member for Gower (Tonia Antoniazzi). Health is, of course, devolved in Wales and Scotland. Were the Government’s amendment in lieu in respect of abortion to be passed, it would apply to England and Wales, but it would simply do what the Welsh Government are already doing.

We have called for Members to reject Lords amendments 85 to 88, in respect of tobacco. We heard from the hon. Member for Stockton North (Alex Cunningham), who rightly cited the hon. Member for City of Durham (Mary Kelly Foy). I am sorry that she could not be here today, but in Committee she took a close and well-informed interest in these issues. We have also just heard from my hon. Friend the Member for Harrow East (Bob Blackman).

[Liz Twist]

Will the Minister give way?

[Edward Argar]

I did promise not to take interventions, given the time, but I will take one from the hon. Lady, because I was not able to do so during my opening remarks.

[Liz Twist]

May I add my backing to the call for support for Lords amendment 85? Yesterday many of us attended a reception organised by Cancer Research UK, which has highlighted this issue. Will the Government please bite the bullet and support the amendment?

[Edward Argar]

Before responding to the hon. Lady, I must correct myself. I should have said “With the leave of the House” before starting my wind-up remarks.

I am grateful to the hon. Lady for her work on this issue. Although this does not normally fall within my ministerial portfolio, she and I have debated this issue across the Floor of the House, and I know her interest and her passion for this issue, and the hard work that she has done on it. While I recognise that, I believe that the Government’s approach of resisting the Lords amendments in this space is the correct one, and I therefore fear I may disappoint her. We will see whether the House divides on this matter; I suspect it will, but that will be up to shadow Ministers and other Members. I welcome the debate, and I suspect it is a debate we will continue to have.

I have listened extremely carefully to my hon. Friend the Member for Buckingham (Greg Smith), as he would expect. I would encourage him not to press the point further at this stage, and I will of course continue to reflect carefully on the points he has made. They are important points about the impact on industry and on the broadcasting industry, and I will consider carefully what he said, but we believe that we have struck the appropriate balance in the legislation as it stands. I am grateful to him for his intervention in this debate and his comments.

It was perhaps predictable when looking at the nature of the amendments in this group that Lords amendment 92 and amendment (a) in lieu would inform the bulk of the contributions across the House. This is an issue that Members quite rightly hold strong views on, and there are sincerely held and informed views on both sides of the debate. It is important that this debate is well informed. We heard from my hon. Friends the Members for Runnymede and Weybridge (Dr Spencer), for Congleton (Fiona Bruce) and for Sleaford and North Hykeham (Dr Johnson), and the hon. Member for Strangford (Jim Shannon), the right hon. Member for Kingston upon Hull North (Dame Diana Johnson) and the hon. Member for Birmingham, Yardley (Jess Phillips). May I offer my condolences to the hon. Member for Birmingham, Yardley and her family on the loss of her mother-in-law, Diana, on Friday?

We also heard from my right hon. Friend the Member for Basingstoke (Mrs Miller), my hon. Friend the Member for Sevenoaks (Laura Trott) and my right hon. Friend the Member for Gainsborough (Sir Edward Leigh), as well as from my hon. Friend the Member for Boston and Skegness (Matt Warman), who gave a typically powerful speech on the subject. We also heard from the hon. Member for Upper Bann (Carla Lockhart).

I have made it clear throughout the debate that this is a free vote, but I would urge Members, in reaching their decisions, to be cautious about some of the figures that have been used in support of some of the arguments today. We do not have all the detailed figures, and I understand that some of them may be based upon extrapolations from freedom of information requests conducted in this respect. I am not drawing any conclusions beyond that, but I would urge caution among Members in how they use those figures.

It is absolutely right that this issue, having been inserted into the Bill by the noble Baroness Sugg, should have been carefully considered by this House. The volume of contributions reflects the importance attached to it by Members. The Government have been clear that these were temporary provisions put in place to reflect an extraordinary set of circumstances, and my right hon. Friend the Secretary of State has been clear that, as we move out of the pandemic, such temporary pandemic-related measures should cease. However, the House has had the opportunity to debate this matter today, and the views expressed on both sides are important for the House to hear.

As I have said, I hope that Members will be clear about the process that we will follow. We hope that, on the voices, the House will reject the Lords amendment tabled in Baroness Sugg’s name purely on the basis that it is legally defective and will not do the job that was intended for it in policy terms by the noble Baroness. We have therefore tabled what we believe is a legally effective amendment in lieu of that amendment. Uncertainty in this area of policy and of law does no one any favours, and we would not wish uncertainty for anyone in this space. That is why we were unable to accept the noble Baroness’s amendment and why we are asking the House to reject it, but we have come up with something that we believe provides clarity and is legally effective in what it does. As I say, it is for hon. Members to consider their own position on this matter of conscience, which is of import to our constituents up and down the country, and I suspect they, too, will have strong views either in favour or against. It is right that the House brings such matters to a debate and a vote.

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Report on assessing and meeting workforce needs

[Edward Argar]

I beg to move, that this House disagrees with Lords amendment 29.

[Madam Deputy Speaker (Dame Eleanor Laing)]

With this it will be convenient to discuss the following:

Lords amendment 30, and Government motion to disagree.

Lords amendment 48, Government motion to disagree, Government amendment (a) in lieu, and amendment (b) in lieu.

Lords amendment 57, and Government motion to disagree.

Lords amendment 89, Government motion to disagree, and Government amendment (a) in lieu.

Lords amendment 108, and Government motion to disagree.

Lords amendments 42 to 47, 55, 56 and 58 to 64.

[Edward Argar]

It is a pleasure in discussing this set of amendments to be facing the shadow Secretary of State, the hon. Member for Ilford North (Wes Streeting), although I might not say that after he has made his contribution or challenged me. I am grateful for the opportunity to speak to this important set of amendments, and I again put on record my gratitude to their lordships for the work they have done in scrutinising this Bill. This group is about accountability and makes it clearer that the Government are committed to ensuring that the NHS is transparent, accountable and effective.

Lords amendments 42 to 47 ensure that the procurement regulations will have to include provision for procurement processes and objectives; for steps to be taken when competitively tendering; and for transparency, fairness, the verification of compliance and the management of conflicts of interest. They also require NHS England to issue guidance on the regulations. It behoves me to pay tribute to the shadow Minister, the hon. Member for Bristol South (Karin Smyth), who served on the Bill Committee throughout. Although we did not always agree, she brought her expertise and forensic skills with issues such as this to that Committee. Even if she did not always agree with the conclusions, she made sure we were well informed in the conclusions we reached.

We recognise those key aspects as vital. While it was always our intention to include them in the new provider selection regime, the amendments add clarity and clearly signal our intentions. Furthermore, Lords amendment 47 makes the regulations subject to the affirmative procedure. We are grateful for the input of the Delegated Powers and Regulatory Reform Committee in advising that, and we have listened.

Lords amendment 55, supported by the Scottish Government, makes it clear that any powers or duties conferred on Scottish Ministers in relation to their role in collecting information for medicine information systems can be treated in the same way as other NHS powers or duties in Scotland and be delegated to health boards in Scotland.

Lords amendments 56 and 58 to 64 relate to the power to transfer the functions of arm’s length bodies. Following constructive engagement with the devolved Governments, these amendments enable us to proceed on a UK-wide basis. Lords amendment 56 clarifies that the powers in part 3 of the Bill in respect of special health authorities apply in relation only to England and cross-border special health authorities, and not Wales-only special health authorities. Lords amendments 58 and 59 remove devolved Ministers and Welsh NHS trusts from the list of appropriate persons to whom property, rights and liabilities can be transferred through a transfer scheme following a transfer of functions.

Lords amendment 60 creates a requirement for the Government to obtain the consent of the devolved Governments for any transfer of functions within the competence of their legislatures or which modify functions exercised by the Welsh Ministers, Scottish Ministers or a Northern Ireland Department. Finally, Lords amendments 61 to 64 are consequential upon the changes made by Lords amendment 60.

I am also asking the House to disagree with several amendments made in the other place. First, Lords amendment 29 relates to the workforce, and I reassure the House that the Government are committed to improving workforce planning. We recognise the importance of having a properly trained workforce in sufficient numbers and in the right places. We are already taking the steps we need to ensure we have record numbers of staff working in the NHS. While we recognise the strength of feeling behind the amendment, we simply do not think it is necessary in its current form, and we urge the House to reject it.

[Peter Aldous (Waveney) (Con)]

I am aware that the Government have put in place their own plans for NHS workforce planning, but can my hon. Friend address the concerns that framework 15 has inadequacies in terms of data collection, does not provide an assessment of workforce numbers and is not responsive to societal shifts?

[Edward Argar]

My hon. Friend puts his finger on a key issue, which is the dynamic nature of workforce trends, whether in terms of demand or supply, which is one of the challenges of a long-term projection—it would need to be a dynamic process. That is why we believe that the right approach is the one set out by my right hon. Friend the Secretary of State. His predecessor commissioned that framework review from Health Education England in July last year, and the Secretary of State has subsequently asked for further work to be done in a further commission that looks at a workforce framework over 15 years. That is the first time that has been done, as I heard him say at the Dispatch Box earlier today when talking about the Ockenden review, and it will be a hugely valuable tool for the NHS and for us when we make decisions in this place about priorities and prioritisation in healthcare. As always, I am grateful to my hon. Friend the Member for Waveney (Peter Aldous).

Before I go into more detail, I will make a point on which I suspect the shadow Secretary of State and I are in complete agreement. Although there may not be many things in this group of amendments that we agree on, I am sure that he will join me in recognising the amazing work done by our health and care workforce over the past two years, and not just in the past two years, which were exceptional circumstances, but every day of the year—day in, day out—whichever year it is. I put that on record because it is important.

[Wes Streeting (Ilford North) (Lab)]

indicated assent.

[Edward Argar]

The hon. Gentleman nods; as I say, I suspect that may be a rare moment of agreement on this group of amendments.

We continue to be committed to growing and investing in the workforce. This year we have seen record numbers of staff working in NHS trusts and clinical commissioning groups, including record numbers of doctors and nurses. The monthly workforce statistics for December 2021 show that there are more than 1.2 million full-time equivalent staff. Those workforce numbers come on the back of our record investment in the NHS, which is helping to deliver our manifesto commitments, including to have 50,000 more nurses by the end of the Parliament. We are currently on target to meet that manifesto commitment, as the number of nurses was a little over 27,000 higher in December 2021 than in September 2019.

The spending review settlement will also underpin funding the training of some of the biggest undergraduate intakes of medical students and nurses ever. In that context, I highlight the decision made, I believe, under one of my predecessors to expand the number of medical school places from 6,000 to 7,500, which has come on stream. Of course there is a lead time before those going through medical schools will be active in the workforce, but it is an important step forward.

[Janet Daby (Lewisham East) (Lab)]

I draw the Minister’s attention to the 2 million Uyghurs who have been detained in concentration camps. They are making slave-made goods that have infiltrated our NHS, which puts health workers at risk of wearing products made by modern slavery. Will he recognise the importance of accepting Lords amendment 48 so that the NHS is not dependent on slave-made goods?

[Edward Argar]

I hope the hon. Lady will forgive me, because I will finish discussing the workforce amendments before I turn to the so-called genocide amendments and the organ sales amendments. I will come to her point, but I hope she will allow me to do it in that way; I have heard what she has said.

[Rachael Maskell (York Central) (Lab/Co-op)]

Will the Minister give way?

[Edward Argar]

I will make a little progress, then I will give way to the hon. Lady, as I tend to do. She is a regular participant in health debates.

We are already committed to improving workforce planning. In July 2021, as I said, we commissioned that important work with partners to review long-term strategic trends. It is also important to note in that context that my right hon. Friend the Secretary of State announced that we are merging NHS England and Health Education England, which is a hugely important move that brings together the workforce planning and the provision of places and of new members of the workforce with the funding available for that and the understanding of what is needed in the workforce. It brings supply and demand considerations together.

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

Will the Minister give way?

[Edward Argar]

I will make a little more progress, then I will give way to the hon. Member for York Central (Rachael Maskell) and then, if I have time, I will give way to her. I want to address the points of the hon. Member for Lewisham East (Janet Daby) in good time and I am conscious that the votes took up a chunk of the time allowed for this group of amendments.

We are also committed to increasing transparency and accountability. The unamended clause already increases transparency and accountability on the roles of the various actors within the NHS workforce planning system.

[Rachael Maskell]

When looking at workforce planning, it is really important not only that the Government depend on NHS professionals trained overseas, but that they look at commissioning more training places here. In particular, I would point to the dentistry profession, as the Government are currently waiting for 700 dentists to pass their exams. It really does highlight the shortage of training for our own dentists when one in three dentists practising has trained overseas. Will the Government look at the commissioning of more training places so that we can grow our own workforce?

[Edward Argar]

The hon. Lady will be pleased to know, or will I hope be reassured to a degree to know, that underpinning our strategy to grow the workforce—for example, the nursing workforce or other specialisms—is the fact that we have multiple strands to the strategy. Those coming from overseas who wish to work in the NHS are always going to be an important and valued part of our NHS workforce, but of course we are also committed to growing the number, for want of a better way of putting it, that we grow at home through training places and medical schools. Crucially, however, a key element here is retention of our existing staff, so that we are not simply recruiting and training lots more staff to replace those who are leaving. All of those factors are important.

[Debbie Abrahams]

Does the Minister want to comment on the fact that 100-plus organisations—and not just those 100 organisations, including the BMA, but former chief executives of NHS England—are still very concerned that the Government’s measures on workforce planning do not go far enough?

[Edward Argar]

I am grateful to the hon. Lady, and she and I have worked together on a number of issues in the past. We always engage—and the since the inception of the Bill and throughout its passage, we have engaged collaboratively—with a whole range of organisations, such as professional bodies and trade unions, including some of those she mentioned. We believe that the approach we have adopted in the commissions from the Secretary of State, coupled with the merger with Health Education England, will be a significant step forward, and we believe it is the right approach to take. I suspect that the hon. Lady may disagree, and I always respect her opinion, although I may not always agree with it.

[Jeremy Hunt (South West Surrey) (Con)]

Will the Minister give way?

[Edward Argar]

I wanted to make a little progress, but I will give way to the Chair of the Select Committee.

[Jeremy Hunt]

Could the Minister possibly just tell me whether there is a single NHS organisation that is not supporting Lords amendment 29, which the Government are planning to reject?

[Edward Argar]

I may regret giving way to my right hon. Friend. I do not often say that, but perhaps I do now. I believe that this is about striking an appropriate balance in workforce planning and understanding supply and demand. I believe that the approach we have adopted as a Government, with the commission and the subsequent commission from the Secretary of State, is the right one. We are working closely with all NHS organisations from NHS England down, and I am sure that we will continue that collaborative work and that they will recognise the value being added by these commissions.

[Tim Farron (Westmorland and Lonsdale) (LD)]

Will the Minister give way?

[Edward Argar]

I will make a little progress if I may, but if the hon. Gentleman can shoehorn his way in a little later, I will, assuming I am making good progress, try to find a way to come back to that point for him.

On Lords amendments 30 and 108, while we recognise the concerns of the other place, we think it is important to enable the Secretary of State to intervene in reconfigurations with greater flexibility where such an intervention is warranted. While the Secretary of State already has powers over reconfigurations, our proposals will allow them to better support effective change and respond in a more timely way to the views of the public, health oversight and scrutiny committees and, indeed, parliamentarians in this House. It will reduce wasted time and effort, and it will allow Ministers to become involved at the right stage, not simply at the end stage of the process. For that reason, we urge the House to reinstate clause 40 and schedule 6.

[Tim Farron]

rose—

[Edward Argar]

I think the hon. Gentleman is seeking to intervene. I find it difficult to say no to him, so I will give way.

[Tim Farron]

The Minister is a thoroughly good man, and I am very grateful. He will be aware of the National Audit Office’s projection that there are probably 100,000 undiagnosed cancer cases since the pandemic. Tragically, clinicians reckon that probably 20,000 of those people have already passed away. Will he agree and commit to a specific workforce strand when it comes to cancer? We desperately need cancer specialists, nurses, oncologists, radiotherapists and so on if we are going to be able to tackle this problem, but also make sure that we are not overburdened in the future, so that we can save lives?

[Edward Argar]

I am pleased I took the hon. Gentleman’s intervention on an issue that I know he has long taken an interest in. As well as the overall macro-trends of supply and demand, I expect the work being undertaken to look at the specialisms sitting beneath. He and I have discussed the significant increase in percentage terms in the number of radiographers, radiologists and others since 2010, but I acknowledge his underlying point that there is more to do if we are to achieve the ambitions set out in our consultation on the 10-year cancer plan and our broader ambitions for cancer care and treatment. We continue to look at that, and those specialisms will form a part of that work.

The hon. Member for Lewisham East raised a subject that I suspect will come up in contributions to the debate, including from my right hon. Friend the Member for South West Surrey (Jeremy Hunt). Regarding Lords amendment 48, we have heard the strength of feeling in the other place about the gravity of this issue, and I know that no one in this House would support the use of forced labour in creating NHS goods or their coming from areas where genocide may be taking place. We are fully committed to ensuring that that does not happen and we are now proposing further measures to tackle the use of forced labour, but we do not believe that this is the right legislative vehicle for introducing those changes, especially those made in the other place relating to genocide.

The Government will bring forward new rules for transforming public procurement in the forthcoming procurement Bill, which will cover all Government procurement and further strengthen the ability of public sector bodies to exclude from bidding for contracts suppliers that have a history of misconduct, including forced labour. We believe that that is the right vehicle for such provisions. The review of the 2014 modern slavery strategy will be published in spring this year, and will provide an opportunity to build on the progress we have made and to adapt our approach to take account of the evolving nature of these terrible crimes. We know that the NHS is one of the biggest procurers in this country, and it is for that reason that we are introducing measures in this Bill to ensure that NHS procurement works for the good of all.

NHS England and NHS Improvement agreed a new slavery and human trafficking statement for 2022-23 on 24 March, with new modern slavery countermeasures in the NHS supplier road map, updates to the NHS standard contracts to strengthen our position on modern slavery, and the development of a new strategy to eradicate modern slavery across the NHS supply chain. We are going to go further than that, though. In amendment (a) in lieu of amendment 48, we propose to introduce a duty on the Secretary of State to carry out a review into the risk of slavery and human trafficking taking place in NHS supply chains, and to lay before Parliament a report on its outcomes. That review will focus on Supply Chain Coordination Ltd, which manages the sourcing, delivery and supply of healthcare products, service and food for NHS trusts and healthcare organisations across England. As well as supporting the NHS to identify and mitigate risk with a view to resolving issues, the review will send a signal to suppliers that the NHS will not tolerate human rights abuses in its supply chains and will create a significant incentive for suppliers to revise their practices. I will listen to my right hon. Friend the Member for South West Surrey when he makes his contribution and endeavour to respond when I wind up this debate. I know he has strong views on this subject, as do other hon. Members

[Janet Daby]

I thank the Minister for his response. My concern is the level of urgency. If the Government allow the problem to continue in the NHS, they are inadvertently allowing slavery to continue, which is not helpful.

[Edward Argar]

As ever, the hon. Lady makes her point courteously but clearly. As I said, depending on the time available at the end of the debate, I will endeavour to respond more fully to the points that she and my right hon. Friend make.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

I hope to speak on this subject if I catch your eye, Madam Deputy Speaker, but I want to make the point that right now, even though it is not meant to be allowed, the NHS is using products made by slave labour. Only two days ago, The Spectator demonstrated that products being used in King’s College Hospital actually came from providers in Xinjiang, so it is happening now. Like the hon. Member for Lewisham East, I want to emphasise the urgency of this issue, so I intend to bring it up with my hon. Friend the Minister during the debate.

[Edward Argar]

I should say at this point that I was grateful for the opportunity to talk to my right hon. Friend about this subject a week or two ago, and I suspect that our conversations will continue.

I want to cover the rest of this group of amendments. Lords amendment 57 would exclude statutory functions of NHS Digital from the transfer of powers in the Bill. I urge the House to reject that amendment. I have assured Members of this House and in the other place that the proposed transfer of functions of NHS Digital to NHS England would not in any way weaken the safeguards we have in place for the safe and appropriate use of patient data. NHS Digital’s current obligations in terms of its data functions, and particularly the safeguards that apply to patient data, will become obligations on NHS England. The merger, which has been announced as Government policy, is in response to the recommendation of the Wade-Gery review. It is essential to simplify a complex picture of national responsibilities for digital and data services in the NHS, bringing them together in a single organisation that leads on delivery and the data needed to support it.

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[Edward Argar]

As ever, I thank hon. and right hon. Members from all parts of the House for all their contributions to this important debate on an important set of amendments. Even if I do not always agree with everything he says, I welcome in particular the contribution from the hon. Member for Ellesmere Port and Neston (Justin Madders). He and I spent a productive period—I was going to say happy—sitting opposite one another for two days a week over many weeks in Bill Committee, taking this legislation through. While I miss him from his previous role as effectively my shadow, I wish him well in his current shadow ministerial role. I also put on record my gratitude, although he cannot be here today, to the hon. Member for Nottingham North (Alex Norris) for his work on the Bill.

I gently tease, and this is no reflection on the current shadow Minister, that in Committee it took two shadow Ministers to try to keep me on my toes. It appears today that it takes three, but in saying that I cast no aspersions on the shadow Secretary of State, the hon. Member for Ilford North (Wes Streeting), who I am fond of, even when he is gently or less so gently pushing me on certain issues.

I turn first to the organ tourism amendment, and I am grateful to the shadow Secretary of State for his approach on this issue. We have a shared objective here, and I assure Members that our approach would target not only transplant tourists, but anyone involved in making the arrangements for the purchase of the organ who may be a British national. The Government amendment, paired with our commitment to work with NHS Blood and Transplant to make more patients aware of the legal, health, and ethical ramifications of purchasing an organ, will send an unambiguous signal that complicity in the abuses associated with the overseas organ trade will not be tolerated.

Turning to reconfigurations, I strongly believe that the public rightly expect Ministers to be accountable for the health service, which includes the reconfigurations of NHS services. This House rightly voted to retain these clauses on Report. The reconfiguration power will ensure that decisions made in the NHS that affect all our constituents are subject to democratic oversight. Without it, the Secretary of State’s ability to intervene and take decisions will remain limited, and usually be at a very late stage in the process. Although I hear what hon. Members have said, I note that many hon. Members from both sides of the House none the less seek to persuade the Secretary of State and seek to raise issues relating to their local services with the Secretary of State with a particular outcome in mind.

As now, the Secretary of State would not be alerted to a potential change in services until the change had become a relevant issue and would not be able to intervene without that formal referral. We have retained the independent reconfiguration panel. The shadow Secretary of State raised the issue of the clinical appropriateness of the changes. Nothing that is proposed here alters the fact that clinical appropriateness and clinical and patient safety remain central to any decisions and remain an obligation on the Secretary of State in any decisions that he or she makes in that context.

Briefly, on the remarks of the shadow Secretary of State about waiting lists, he will be aware that we published a comprehensive and ambitious but realistic elective recovery plan that is backed by record funding and resources for the NHS to tackle those waiting lists, which have grown as a result of the pandemic. I am straight enough with him to recognise that there were waiting lists before the pandemic. He always makes that point and I highlight that we have a plan to fix that, which is exactly what we are doing.

The shadow Secretary of State also highlighted several other factors relating to the workforce and the workforce clause, as did my right hon. Friend the Member for South West Surrey (Jeremy Hunt), the shadow Secretary of State—sorry, the Chair of the Health and Social Care Committee; I do not think we will be fielding shadow Secretaries of State from the Conservative Benches for some time yet. I entirely understand where my right hon. Friend is coming from on this issue, but I believe the approach that the Government have adopted, with the framework 15 commission and review and the broader commission that the Secretary of State has set out to look at drivers of workforce supply and demand, absolutely reflects our recognition of the centrality and importance of the workforce, and the right workforce, to the delivery of all our ambitions for constituents and for recovering waiting lists and waiting times.

We have not waited for any projections to get on with that; we are already investing in increasing our workforce and we are seeing record numbers of people working in our NHS. I have already highlighted that we are well on target to meet the commitment of 50,000 more nurses, with a current increase in the number of nurses of 27,000. The hon. Member for St Albans (Daisy Cooper) highlighted the same issues in her remarks.

I am particularly grateful to my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) for his contribution on a challenging issue. There is a considerable degree of consensus on both sides of the House about the abhorrence of modern slavery, slavery or anything linked to it. We remain of the view that this is not the right legislation for the proposed changes.

As I set out in my previous remarks, new rules for transforming public procurement will further strengthen the ability of public sector bodies to exclude suppliers from bidding for contracts where they have a history of misconduct—or extreme misconduct in the case of slavery, forced labour or similar. In developing the modern slavery strategy review, it will continue to be important to engage across Government and civil society, nationally and internationally, to collect the necessary evidence to agree an ambitious set of objectives. It is right that the Government take action on the crime of modern slavery and it is right that the NHS is in step with all public bodies in doing so.

From listening to my right hon. Friend, I expect the issue to reappear when their lordships consider our amendments. In that context, I hope that he and other hon. Members are willing to continue to engage with the Government and my Department on this hugely important issue. As he rightly said, it is important not just in this House but outside this House to those we represent. I look forward to continued engagement with him.

[Sir Iain Duncan Smith]

Will the Minister give way?

[Edward Argar]

I have literally 30 seconds left, so if my right hon. Friend’s intervention can be in five seconds, I will give way.

[Sir Iain Duncan Smith]

Can the Minister tell his colleagues in the Government that there is never a good time? Now is the right time, and let us get on with it.

[Edward Argar]

I think that was exactly five seconds, and I am grateful to my right hon. Friend. I suspect that colleagues across Government will have heard what he said and will pay very careful attention to it, as I know Ministers across Government do to all that my right hon. Friend says in this House.

With that in mind, I ask the House to accept the motions in my name on the amendment paper.

[Madam Deputy Speaker (Dame Eleanor Laing)]

I congratulate the Minister on his perfect timing. That is very rarely done with such precision.

Question put, That this House disagrees with Lords amendment 29.

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Establishment of integrated care boards

[Edward Argar]

I beg to move, That this House disagrees with Lords amendment 11.

[Mr Deputy Speaker (Mr Nigel Evans)]

With this it will be convenient to discuss the following:

Government amendment (a) in lieu of Lords amendment 11.

Lords amendment 51, Government motion to disagree, and Government amendment (a) in lieu.

Lords amendment 80, Government motion to disagree, and Government amendments (a) to (n) in lieu.

Lords amendment 81, and Government motion to disagree.

Lords amendment 90, Government motion to disagree, and Government amendment (a) in lieu.

Lords amendment 105, Government motion to disagree, and Government amendment (a) in lieu.

Lords amendments 1 to 10, 12 to 28, 31 to 41, 49, 50, 65, 83, 102 to 104, 106 and 107.

[Edward Argar]

Let me repeat, quite legitimately, what I said in opening the debate on the previous group of amendments. It is a pleasure to serve opposite the shadow Minister, the hon. Member for Bristol South. It was also a pleasure to serve opposite her in the Bill Committee. She was not the shadow Minister then, but she brought her expertise and, as I said earlier, her forensic knowledge of these areas of the Bill—occasionally to my slight discomfort—and, overall, a degree of informed deliberation to our proceedings.

The amendments in this group relate to integration, commissioning and adult social care. The Government’s amendments strengthen our expectations of commissioners, especially in relation to mental health, cancer, palliative care, inequalities and children. Lords amendments 1, 25, 27 and 49 strengthen our approach to mental health. Amendment 49 makes it clear that “health” refers to both physical and mental health in the National Health Service Act 2006.

[Sir Charles Walker (Broxbourne) (Con)]

Will my hon. Friend give way?

[Edward Argar]

Of course I will. I cannot say no to my hon. Friend.

[Sir Charles Walker]

I want to thank my hon. Friend for making that clear, because there was some concern that the Bill broke with parity of esteem by not recognising that mental health was as important as physical health. A number of Members raised concerns about that, and I want to thank my hon. Friend and his team for getting it right. They should be congratulated.

[Edward Argar]

I am very grateful to my hon. Friend. He has come in at just the right time, because I was about to thank and pay tribute to him and, indeed, to my right hon. Friend the Member for Maidenhead (Mrs May). Both of them have, in their typically determined and persistent but very courteous way, pressed this issue and highlighted the need for it to be explicit in the legislation. I think we have made the Bill stronger and clearer through Lords amendment 49, and I pay tribute to my hon. Friend for that.

Lords amendments 1, 25 and 27 also require the Secretary of State to publish, and lay before Parliament, a document setting out the Government’s expectations for mental health spending for the financial year ahead. Lords amendment 105 requires a member with experience of mental health to sit on each integrated care board. Although we have adopted a permissive rather than a prescriptive approach throughout, we are persuaded of the need and the benefits—given the parity of esteem—of having that experience on the ICBs, and, while we are proposing some changes in the drafting, we agree with the principle. I hope that the shadow Minister shares that view.

I pay tribute to my hon. Friend the Member for Basildon and Billericay (Mr Baron), and to Members of the other place, for their engagement and continued support in relation to Lords amendments 2, 3 and 4, which relate to cancer objectives in the NHS mandate. The amendments change the focus of the cancer outcomes objectives so that they capture all cancer interventions. Those objectives will have priority over any other objectives relating to cancer, not just those relating specifically to “treatment”. I also pay tribute to Baroness Finlay, who has long campaigned to add explicit reference to palliative care services to the list of services that an integrated care board must commission. That is why we are accepting Lords amendment 12.

Lords amendments 22, 83, 102, 103 focus on addressing the needs of babies, children and young people. Lords amendment 22 would require the ICB to set out any steps it proposed to take to address the particular needs of children and young people, while Lords amendments 83, 102 and 103 specify that the Government must publish a report describing the Government’s policy on information sharing by or with public authorities in relation to children’s health and social care and the safeguarding of children. I pay tribute in that context to my right hon. Friend the Member for South Northamptonshire (Dame Andrea Leadsom), who has long taken a keen interest in these issues.

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[Alicia Kearns (Rutland and Melton) (Con)]

I thank my hon. Friend and neighbour for giving way. On the duties of integrated care boards, he knows that one of my grave concerns about health inequalities relates to rural settings. In Rutland, our citizens receive care in Peterborough, Stamford, Kettering, Corby, Leicester and sometimes even beyond. The big problem at the moment is that their health records are not shared across those different clinical commissioning groups, leading to big problems with them getting the care and support they need. Will ICBs be able to help us to overcome these issues? I have been lobbying the Department of Health and Social Care for months to help us sort out this problem.

[Edward Argar]

I can reassure my hon. Friend that under the changes we are putting in place through the integrated care systems, ICBs will continue to be able to commission services and to send patients to hospitals outside the ICS area. They will also be obliged to co-operate and work with other organisations in the patient’s best interests. We are setting this alongside the broader work that we are doing in the Department on the interoperability of data. I hope that that has reassured her to a degree.

We are also committed to supporting research, and I ask the House to agree to Lords amendments 6, 15, 26 and 28, which further embed research and provide increased clarity, transparency and oversight in respect of ICBs, NHS England and the Secretary of State’s research duties.

[Debbie Abrahams]

I want to ask the Minister about two matters. First, why are health inequalities not explicitly mentioned among the triple aims of the Bill? Secondly, on the membership of ICBs, I am sorry if I misheard, but I did not hear him discuss the amendment on how to avoid any conflict of interest involving private providers on those boards.

[Edward Argar]

The reason for that is that an amendment was brought forward on Report, and the matter was settled at that stage; things have not changed since. In lieu of what had been tabled, we tabled our own amendment on Report, which—even though in our view it was unnecessary—we felt further clarified how to avoid conflicts of interest. In the previous group of amendments, we tabled an amendment to extend that conflict of interest policy and approach to the sub-committees of the boards, in order to ensure that it is explicit that the policy applies to both. It is essentially the same principle, but widened out to the sub-committees to avoid them being inadvertently left out of the legislation.

[Craig Tracey (North Warwickshire) (Con)]

I really welcome Lords amendment 12 on palliative care. Can the Minister give us any more information about whether statutory guidance will be given to the ICBs? It is important that they get proper guidance on what is expected of them. Can he also reassure us that palliative care will be a priority objective for the trusts?

[Edward Argar]

I can give my hon. Friend an assurance that we expect that to be the case. I will turn to palliative care in the context of other amendments shortly, and I might address some of his points then.

We are also committed to tackling climate change. Lords amendments 9, 18, 33 and 40 place duties on NHS trusts, foundation trusts, ICBs and NHS England to have regard to the Government’s key ambitions on climate change and the natural environment in everything they do. The amendments include a guidance-making power for NHS England that will assist in the discharge of these duties by different bodies.

There are also a number of amendments relating to how integrated care boards should operate as statutory bodies. Amendments 19 to 21 and 23 require an ICB to consider the skills, knowledge and experience it needs to discharge its functions and, where there are gaps, to consider what steps it can take to mitigate them. The amendments also require the forward plan to include detail on how the ICB intends to arrange for the provision of health services, as well as its duties under sections 14Z34 to 14Z45. The annual report must also include an explanation of how it has discharged these duties.

The hon. Member for Oldham East and Saddleworth (Debbie Abrahams) mentioned conflicts of interest. We amended the Bill in this place, and the Lords amended it further with Lords amendment 11. We understand the motivation, but the drafting does not fulfil the stated aim, which is why we tabled an alternative amendment in lieu of that amendment.

[Debbie Abrahams]

Will the Minister give way?

[Edward Argar]

I want to make a little progress. If I make good time, I may be able to give way, but I am conscious of the need to give the shadow Minister and other colleagues plenty of time to speak—about, I suspect, one aspect of this group of amendments in particular, but we will see.

We commend a number of additional amendments to the House. Lords amendments 34 to 37 limit the powers to set capital expenditure limits for NHS foundation trusts, so that they cannot apply for periods longer than a financial year. I reaffirm my commitment to ensuring that these powers on expenditure limits are used only as a last resort, as NHS England agreed with NHS Providers. I also ask the House to accept Lords amendments 50, 65, 104, 106 and 107, which are minor and technical changes required to ensure that the Bill functions as intended.

Although we have made progress on a number of amendments, we urge the House to disagree with the other place on others. First, we ask the House to disagree with amendment 90 on dispute resolution in children’s palliative care, and instead support the amendment we tabled in lieu. Our approach will require the Secretary of State to commission a full independent review of the causes of disagreements between the providers of care and persons with parental responsibility on the care of critically ill children, how these disagreements can be avoided, and how we can sensitively handle their resolution.

We also seek to reject Lords amendment 81. Although we agree on the need to make good progress on the Care Act 2014, it is not in the interests of good government to be forced to implement reform of this complexity and scale through a deadline set in primary legislation. We are getting on with implementing social care reform, and operational guidance is out for consultation. We have announced a small number of local authorities that will act as trailblazers to test the reforms from January 2023, but we must take time to engage with local authorities as they build the necessary infrastructure, and use these trials to refine delivery systems and guidance ahead of the national roll-out. We encourage the House to reject Lords amendment 81, which we believe affects the financial arrangements to be made by this House and, as such, is subject to financial privilege.

[Debbie Abrahams]

I would be grateful if the Minister answered my question about the triple aims, and the impact of not including in them an explicit reference to health inequalities. The Bill refers to health and wellbeing, but not to health inequalities. My main point is on the care cap. More than one in six of my constituents with dementia will not reach the cap, as it stands. The Lords amendments mean it would be one in five, so I would be grateful if the Minister could say exactly why he is prepared to let one in six of my constituents not reach the care cap.

[Edward Argar]

I will address the care cap, because there is a fair bit to say. I was just addressing the noble Lord Lansley’s amendment. I apologise for missing the hon. Lady’s first point. We do not think it is necessary to have health inequalities explicitly among the triple aims, as we believe that the issue runs through everything that ICBs do and everything the Bill sets out. We therefore feel that the Bill is effective, and that each ICB’s ICS will have regard to health inequalities and will see them as central to its objectives.

Before I turn to Lords amendment 80, I will briefly address Lords amendment 51, which relates to consultation with carers during hospital discharge planning. We have heard about the strength of feeling in the other place on that issue. We wholly agree that we must ensure that, where appropriate, unpaid carers are involved in planning around discharge. Although the Government appreciate the intention behind the amendment and want to address the concerns raised, we want to do so in the most effective way, and in a way that does not create unintended delays to discharge. I ask Members to support our amendment in lieu, which would achieve much of what Lords amendment 51 sought to achieve. It will introduce a new duty on trusts and foundation trusts to involve carers during adult discharge planning. Unlike schedule 3 to the Care Act 2014, this duty applies to all carers where the patient has care and support needs following discharge; and it applies to young carers as well as adults. Our amendment in lieu and the new statutory guidance will ensure that patients and carers are involved in discussions about post-discharge care as soon as they start.

[Liz Twist]

I am pleased that that concession has been made. However, a number of points of clarification would be really helpful to carers. One is about being given a choice about caring, carers having the right information, and carers being able to express their needs properly. The second is about disabled children, who are not referred to here, and the third is about ensuring that young carers are clearly covered by any guidance issued. Will the Minister say how those issues will be addressed?

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[Edward Argar]

I hope that I can give the hon. Lady reassurance. When we refer to “carers”, we intend that to be a broad term, rather than a narrowly drawn one. She is absolutely right to highlight young carers; they are carers. They also face particular challenges, because they often juggle school and similar things with caring. It is our intention that all carers will be covered by this duty on trusts and foundation trusts to involve carers during adult discharge planning. That would apply to all adults who are being discharged, where a carer is involved. I hope that that gives the hon. Lady some reassurance. We would look to ensure that these points were suitably emphasised in guidance and in the advice we give to ICBs and ICSs. As she will know, the Department works with NHS trusts and NHS England, and has various mechanisms for guiding and informing trusts. I recognise the importance of the issue.

We ask that this House rejects Lords amendment 80, and that it reintroduces the clause that the Government originally inserted on Report in this House, alongside further amendments to support the operation of charging reform that were originally tabled in the other place. The Government have set out their plan for a sustainable social care system. We want to end unpredictable care costs for everyone by introducing a universal £86,000 cap on an individual’s personal care costs. I pay tribute to the Minister for Care and Mental Health, who, since taking up her post last September, has made driving this agenda forward a personal priority. I should also pay tribute to her predecessor, my hon. Friend the Member for Faversham and Mid Kent (Helen Whately), for her work in this area.

We entirely recognise and respect that there are strong views on this issue across the House, and it is vital that our approach is fair. The Government believe that the fairest version of the cap would be based on what people contribute towards their care, rather than our counting local authority contributions as well. It simply cannot be fair that two people living in different parts of the country, contributing the same amount, progress towards the cap at different rates because of the differences in the amount that their local authority is paying.

[Peter Aldous]

The Government’s plans are regressive when compared with the proposals under the 2014 Act. They are less equitable to those with moderate assets, including those living with dementia and working-age adults with disabilities. It would be fairer to keep to the original Dilnot proposals, but can the Minister outline how the £900 million saving that, it is estimated, will result from the Government’s proposals and the use of means-testing will better protect those with lower-value properties?

[Edward Argar]

I am grateful to my hon. Friend, who has been open and consistent in expressing his concerns about this issue. He cites the 2014 Act, but it is important to note that those proposals were never implemented and were not deemed to be financially sustainable or deliverable. There were other proposals, including in 2015, but although no proposal is perfect, the proposals before us are a dramatic improvement, in terms of the protections offered and the crippling care costs that many face under the existing regime. This is an important step forward. Let me make a little more progress, after which I may touch on some of my hon. Friend’s other comments.

[Liz Twist]

rose—

[Edward Argar]

I have given way to the hon. Lady already in this debate, as I did in the debate on the previous group of amendments, so I shall make a little progress. She knows that I am always tempted to give way, but I do want to make some progress.

--- Later in debate ---

[Kevin Hollinrake (Thirsk and Malton) (Con)]

It is a pleasure to speak after my hon. Friend the Member for Darlington (Peter Gibson). He made some very strong points in his speech with which I absolutely concur. I want to speak to Lords amendment 80, and his constituency—I know it pretty well, having been there and spent a bit of time there prior to the last election—is the kind that will be affected by it. The Government’s decision is to resist that Lords amendment, which I cannot support. In my view, this is a classic policy for levelling down, not levelling up.

The Minister is absolutely right—both Ministers involved in this Bill are good friends of mine, and I do not want to make their lives more difficult in any shape or form—when he says that the policy across the board is a significant improvement on anything we have had before. That is absolutely right. He said that in his speech, and I agree with it, but I do not agree with him when he says that it is fair. I do not believe it is fair, and that must be the basic criterion on which we judge any proposals, not least these.

I think everybody, including the Minister, accepts that it is quite clear that a £900 million transfer is happening here, which was introduced just as the Bill went on to Report stage. That is a direct transfer of £900 million from household wealth to somewhere else. That is what it is: a transfer of assets—household wealth—to healthcare, the Treasury or wherever else it is going, because that is the way that council contributions are used when it comes to the speed at which somebody reaches the cap.

I could live with that, if we were trying to make the system more affordable, as the Minister says—if the burden was going to fall equally on everyone’s shoulders in different parts of the country. It also true to say that most people will not be affected, because only people on very long care journeys tend to be affected badly, but there are quite a few of them: according to the Department’s own figures, about 6,000 a year—10 people per constituency—would be affected in this way, and most of them have dementia. We know that there are 900,000 people with dementia in the UK today; according to the Alzheimer’s Society, there will be 1.6 million by 2040; and 70% of care home residents are dementia sufferers, and they are the sort of people who will suffer because of the changes. They have very long care journeys, and they move out of their house so it becomes one of the assets that we take into account when assessing how much people contribute to the care cap.

The Minister says we are making these changes to make the system sustainable. Well, okay, make it sustainable, but make it fair too. I do not believe that this is fair. I know I am comparing this with a system that never existed—my hon. Friend is right to say that—but one was proposed in which the council contributions would count in calculations of people’s contribution to the care cap. That is the change we have made—the specific measure to make the system more sustainable is that change, and that affects people with limited assets and wealth. We are balancing this on the shoulders of people with fewer assets and less wealth, and on certain areas as well, as people in some of the regions in the north that we represent tend to have fewer assets and less wealth.

Particularly affected are people who have wealth or assets worth between £75,000 and £150,000. The research provided by the Alzheimer’s Society is clear: under the Dilnot proposals, about 50% of people living with dementia benefited fully from the care cap—they reached the care cap. That was true across all the wealth quintiles—it was very fair. This is not. Only 13% of people in the least wealthy quintile will reach the cap, whereas 28% of the most wealthy will. Such huge disparity cannot be right, yet that is the change that we have made. That £900 million has been found from people with less wealth. That cannot be right, nor is it consistent with levelling up. Look at how different regions are affected: only 13% of people in the north-east reach the cap whereas 29% of people in the south-east do so. Previously, in almost every part of the country, about 50% of people did so. The cap was not as generous, but it was very fair across different wealth quintiles and different regions of the country. I cannot see how this is fair.

Instead of each of us having 10 people in our constituency affected, some will have more and those representing wealthy constituencies will have fewer. I and other Members representing the north-east will have more constituents affected by this change and less generously treated because of it. For that reason, and because in my view it levels down, I cannot support the Government and will vote against them this evening on Lords amendment 80.

[Edward Argar]

I am grateful to all colleagues who have spoken this evening. A number of the arguments were made on Report, and rightly, right hon. and hon. Members have reiterated some of those points where they felt it was appropriate. I will address a number of the points raised relatively briefly.

What we are legislating for in this Bill represents an evolution of our health and care system, and improved integration. My hon. Friends the Members for Gosport (Dame Caroline Dinenage) and for Winchester (Steve Brine) both spoke about carers. Young carers are included, which I hope reassures my hon. Friend the Member for Gosport. In respect of the statutory guidance, I hope that it will provide reassurance if I can set out that we will develop that guidance in partnership with Carers UK to ensure its input and so that it captures exactly the things that hon. Members have alluded to. Again, in statutory guidance, we will look at how to ensure that the duty to give people the information that they need is properly and effectively discharged.

I am grateful to my hon. Friend the Member for Broxbourne (Sir Charles Walker) and my right hon. Friend the Member for Maidenhead—she is now in the Chamber—for the work that they have done on the Bill to ensure that parity of esteem for mental and physical health is not forgotten and is explicit.

On a point made by the hon. Member for Oldham East and Saddleworth (Debbie Abrahams), I will clarify what I said earlier on the triple aim, which may give her a little reassurance, even if not necessarily sufficient reassurance. We have not created a quadruple aim or a fourth limb, but we have included a reference to health inequalities under the existing triple aim in the other place. It is not forgotten. I hope that gives her a degree of reassurance on that specific point.

Lords amendment 80 was the crux of much of the debate. I fear that many are comparing our proposals with something that was never done. We are significantly improving provision around the sustainability and affordability of social care. The Prime Minister was clear that he would grapple with the issue and resolve it. When the Opposition were in power, they had two Green Papers, one royal commission and one spending review priority on the issue and they utterly failed to address it. We are a Government who have made huge strides in creating a better system.

I listened, as always, with great care to my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake). I am sorry that he will not be joining me in the Lobby tonight. While I respectfully disagree with him, I know that he has thought long and hard about this matter and has strong and sincerely held views. With that in mind, I regret that we will have to ask the House to disagree with the Lords amendment on care metering.

Lords amendment 11 disagreed to.

Government amendment (a) made in lieu of Lords amendment 11.

Lords amendment 51 disagreed to.

Government amendment (a) made in lieu of Lords amendment 51.

Clause 140

Cap on care costs for charging purposes

Motion made, and Question put, that this House disagrees with Lords amendment 80.—(Edward Argar.)

Health and Care Bill

Edward Argar Excerpts

Consideration of Lords amendments
Monday 25th April 2022 Commons Chamber

[The Minister for Health (Edward Argar)]

I beg to move, That this House disagrees with Lords amendment 29B in lieu.

[Madam Deputy Speaker]

With this it will be convenient to consider the following:

Lords amendments 30B and 108B to words restored to the Bill, Government motion to disagree, and Government amendments (a) to (i) in lieu.

Lords amendment 48B in lieu, Government motion to disagree and Government amendment (a) in lieu.

Government motion to insist on disagreement with Lords amendment 80, insist on Commons amendments 80A to 80N in lieu, and disagree with Lords amendments 80P and 80Q.

[Edward Argar]

The Lords amendments before the House today relate to the NHS workforce, reconfigurations, modern slavery and the adult social care cap. In respect of amendments 30B and 108B on reconfigurations, I am grateful for the constructive debate on these issue across both Houses. This House has twice voted strongly in favour of the ability for the Secretary of State to call in reconfiguration proposals when needed, and it remains a key principle that decisions on how services are delivered should be subject to ministerial oversight. However, my right hon. Friend the Secretary of State and I have listened carefully to the debates throughout the Bill’s passage, and as a result we have proposed a series of amendments to minimise bureaucracy and ensure transparency.

The first set of changes would mean that the NHS had to notify the Secretary of State only about those reconfiguration proposals that were deemed notifiable, which we will define through regulations. We intend to align that definition with the existing duty on NHS commissioners to consult local authorities where there is a substantial development of variation in the health service. We also propose to remove the requirement for commissioners and providers to inform Ministers of

“circumstances that are likely to result in the need for the reconfiguration of NHS services”.

Taken together, these changes will mean that the NHS will need to notify the Secretary of State only about proposals that are substantive and of great importance to people.

Secondly, we will give local authorities, NHS commissioners and anyone else the Secretary of State considers appropriate a right to make representations to the Secretary of State when he has called in a proposal for reconsideration. We expect this to include any relevant provider. The Secretary of State will be required to publish a summary of the representations he receives, and we will set out in statutory guidance further detail on how local bodies, including providers, will be engaged.

Thirdly, transparency is vital to ensure that these powers are always used by Ministers in the clear interest of the people we all serve. We will therefore require the Secretary of State to provide the reasons for his decisions and directions when he makes them. Finally, we have heard throughout these debates that it is vital that decisions are made expeditiously and expediently in order to give certainty to local bodies so that reconfigurations can be made quickly to improve the quality of services received by patients. We are therefore introducing a requirement that, once a reconfiguration proposal has been called in, the Secretary of State must make any decisions within six months. We believe that this set of changes addresses the key concerns raised in this House and the other place, and I commend it to the House.

I turn to Lords amendment 48B, and the Government’s amendment in lieu, on modern slavery. We share the strength of feeling expressed in both Houses on ensuring that the NHS is in no way inadvertently linked with modern slavery and human trafficking through its supply chain. That is why the Government brought forward an amendment in the first round of ping-pong to create a duty on the Secretary of State to undertake a thorough review of NHS supply chains. I am pleased to announce today that we are going further. The Government’s amendment in lieu of Lords amendment 48B will require the Secretary of State to make regulations with a view to eradicating the use by the NHS in England of goods or services tainted by slavery or human trafficking. The regulations can set out steps the NHS should be taking to assess the level of risk associated with individual suppliers, and the basis on which the NHS should exclude them from a tendering process.

I particularly commend my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) for his consistent and vocal campaigning on this issue. I am delighted that he has confirmed his support for the amendment in lieu. I look forward to working further with him and his supporters to bring these measures forward.

[Ms Nusrat Ghani (Wealden) (Con)]

I congratulate the Minister and the Department on taking this extraordinary step. The public may believe that we already do not use slave-made goods, but unfortunately we do. It is remarkable that the Department has taken this step, and it is incredibly important that we look at Xinjiang in particular, where Sir Geoffrey Nice QC determined there has been a genocide, as there was in Bosnia. The sanctioned MPs and all our colleagues in the inter-parliamentary alliance on China will work with the Department to ensure we have no Uyghur slave-made products in our NHS.

[Edward Argar]

I paid tribute to my right hon. Friend the Member for Chingford and Woodford Green, but my hon. Friend the Member for Wealden (Ms Ghani) has also taken a keen interest in this issue. The Secretary of State and I will continue to work closely with others across Government to ensure that our measures to eradicate modern slavery in NHS supply chains are effective and targeted, and reflect best practice.

On Lords amendment 29B, the Government are committed to improving workforce planning and are already taking the steps needed to ensure that we have record numbers of staff working in the NHS. In July 2021, the Department commissioned Health Education England to work with partners on reviewing the long-term strategic trends for the health and regulated social care workforce over the next 15 years. We anticipate the publication of that work in the coming weeks.

[Jim Shannon (Strangford) (DUP)]

Will the Minister give way?

[Edward Argar]

Very briefly, as I am conscious that we have limited time.

[Jim Shannon]

If the right hon. Member for South West Surrey (Jeremy Hunt) were to pursue the matter, my party and I would be minded to support him. Although I understand from the figures in the press today that there are significant numbers of new nurses coming into the NHS, there is still a large shortfall. Will the Minister confirm for Hansard in the Chamber today that every step is being taken to recruit the nurses needed to address the issue of workforce safety?

[Edward Argar]

The hon. Gentleman is right to highlight the work we are already doing, which I will address in a moment, and the number of nurses we have recruited. I believe we have now recruited 29,000 or so en route to our target of 50,000 more nurses by the end of this Parliament.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

Will my hon. Friend give way?

[Edward Argar]

I will make a little progress, if I may—a few more paragraphs—as I am very conscious of allowing time for Back-Bench colleagues to speak.

Building on this work, we recently commissioned NHS England to develop a workforce strategy. We will set out the key conclusions of that work in due course. In addition, we have committed ourselves to merging Health Education England with NHS England to bring together responsibility for service, financial and workforce planning in one organisation. We will continue to grow and invest in the workforce. There are record numbers of staff, including nurses, working in the NHS.

[Sir Robert Neill]

I am grateful to the Minister for giving way. He will know of my interest as chair of the all-party parliamentary group on stroke, and he will be aware of the particular concern of the Stroke Association and others about the number of qualified therapists to provide the therapy people need after a stroke. Will he commit himself to that being part of the workforce strategy and to moving swiftly? This is already a pressing problem for stroke survivors who are not getting the care they need.

[Edward Argar]

I reassure my hon. Friend that my right hon. Friend the Secretary of State has made it clear that he wishes the whole health and care workforce landscape to be considered by Health Education England.

The growth in our workforce comes on the back of our record investment in the NHS, which is helping to deliver our manifesto commitments, as I said to the hon. Member for Strangford (Jim Shannon), including our commitment to 50,000 more nurses by the end of the Parliament. The spending review settlement will also underpin funding for the biggest ever intake of undergraduate medical students and nurses.

Although I might not be able to say anything sufficient to fully convince my right hon. Friend the Member for South West Surrey (Jeremy Hunt), I put on record my gratitude to him not only for the insight, expertise and knowledge he has brought to our debates on this issue but for the typical courtesy he has displayed throughout our interactions and conversations. I do not know what he will say in a moment, but I have tried to pre-empt him. I hope that he may be tempted to stick with it.

I hope that the House will recognise that the Government are already doing substantial work to improve workforce planning, and that placing a requirement such as Lords amendment 29B on the statute book is therefore unnecessary.

[Kim Leadbeater (Batley and Spen) (Lab)]

Will the Minister give way?

[Edward Argar]

Very briefly, but I am sensitive to Madam Deputy Speaker’s instruction to be brief.

[Kim Leadbeater]

I thank the Minister for giving way. More than 100 organisations, including the Royal College of General Practitioners and the British Medical Association, have expressed their support for Lords amendment 29B. Does he agree that the only way to ensure that we recruit and retain the talented staff that our NHS and social care sector desperately need is through a long-term workforce plan in consultation with the experts in the field, such as health and care employers, unions and integrated care boards?

[Edward Argar]

That is exactly what we are doing through the work commissioned by my right hon. Friend the Secretary of State, which is why Lords amendment 29B is unnecessary.

[Steve Brine (Winchester) (Con)]

Will the Minister give way?

[Edward Argar]

I fear that I cannot, but my hon. Friend may catch me during my winding-up speech. I want to make progress, as about 10 Back-Bench colleagues wish to speak.

Finally, on the adult social care cap, the Government have announced our plan for a sustainable social care system. It is fair, affordable and designed to end the pain of unpredictable care costs by capping the amount anyone needs to pay at £86,000. Without clause 140 there would be a fundamental unfairness: two people living in different parts of the country, contributing the same amount, would progress towards the cap at different rates based on differences in the amount their local authority is paying. We are committed to levelling up and must ensure that people in different parts of the country are benefiting to the same extent, and our provisions support this. Amendments 80A to 80N also make crucial changes to support the operation of charging reform, as these changes were lost by the removal of clause 140 in the other place.

Lords amendments 80P and 80Q insert a regulation-making power to amend how

“costs accrued in meeting eligible needs”

is determined in section 15 of the Care Act 2014. However, if regulations were made using this power, they would result in anyone entering the care system under the age of 40 receiving free personal care up to that age. As local authority contributions would count towards the cap under these changes, a 35-year-old with average care costs would reach the cap and not have to pay anything towards the cost of their care, yet a person who enters care the day after their 40th birthday would need to contribute towards the £86,000 cap over their lifetime. We believe this is unfair. Our plan already includes a more generous means test that means more people will be eligible for state support towards the cost of care earlier, enabling them to keep more of their income.

The changes introduced in the other place also threaten the affordability of our reforms. Lords amendments 80, 80P and 80Q would clearly affect financial arrangements to be made by this House and, as such, have financial privilege. These new Lords amendments would cost the taxpayer more than £1 billion a year by 2027-28. Ultimately, this would mean we need to make the same level of savings elsewhere, making the system less generous for other users. I hope I have been able to provide some reassurance that we believe our approach is still the right one, and I ask the House to disagree with the other place’s amendments.

Finally, I put on record my gratitude to my hon. Friend the Member for Aberconwy (Robin Millar) and the noble Baroness Morgan of Cotes for their constructive and positive engagement during the Bill’s passage on ways to strengthen co-operation between the UK Government, the UK Statistics Authority, the Office for National Statistics and the devolved Administrations, and for their passion for strengthening the Union. I am pleased we are taking forward that work, albeit outside this Bill. I am stimulated by their important work.

We have sought throughout the passage of the Bill to be pragmatic and to listen to this House and the other place in either accepting their amendments or addressing them in lieu. I hope the House recognises that this approach continues to characterise our work, save where we sadly cannot agree with the other place in respect of its amendments on both the workforce and social care caps.

[Several hon. Members rose—]

--- Later in debate ---

[Matt Warman]

I agree that the Government need to continue to address that issue in the way I have described, through more extensive engagement to try to demonstrate some of what is happening.

That brings me to my second point—I will try to stick to the original time limit—which is that these issues are about trust. We need trust with the NHS workforce. As my right hon. Friend the Member for West Suffolk (Matt Hancock) said, with reconfiguration it is very often the case, as it is in my constituency, that even though the data says we will save lives by moving a service from Boston to Lincoln or vice versa, we need to engage with local communities, because right now they simply do not believe that a service that is further away may yet save lives. That does not ring true, and often the data is not yet there.

I simply appeal to my hon. Friend the Minister to deliver on what he said at the Dispatch Box about engaging with the profession, because that is essential to try to improve the morale that the pandemic has damaged so much. I also appeal to him to ensure that local NHS organisations engage with local people, because only that will win public support for the reconfiguration that is so essential for our NHS both locally and nationally.

[Edward Argar]

With the leave of the House, I would like to thank right hon. and hon. Members who have spoken in this debate. I am grateful to the shadow Minister, the hon. Member for Bristol South (Karin Smyth), and indeed to the hon. Member for Ellesmere Port and Neston (Justin Madders), with whom we spent many happy hours over many weeks in Bill Committee.

I also put on record my gratitude to the amazing Bill team in the Department, with whom it has been a pleasure and a privilege to work on this piece of legislation. They have done an amazing job.

I thank my right hon. Friend the Member for West Suffolk (Matt Hancock), under whose leadership we saw the genesis of this Bill, and whom it was a pleasure to work with and work for over a long period of time.

On reconfigurations, and on tackling modern slavery and supply chains, I hope and believe that these measures attract support across the House, and therefore will not reprise the case for them here.

In respect of workforce planning, I join my hon. Friend the Member for Boston and Skegness (Matt Warman) and many others who have spoken in highlighting our gratitude to the NHS workforce and our recognition of the pressures they have faced, particularly over the past two to two and a half years, but also more broadly. That is why we have not only put in place the measures I outlined to deliver an assessment through Health Education England of the needs of the workforce and the framework for growing it, but rather than waiting for that, already put in place measures to continue to significantly increase the workforce.

[Steve Brine]

Will the Minister give way?

[Edward Argar]

Yes—it is the only intervention I will take, but I promised my hon. Friend.

[Steve Brine]

When I visit the elective orthopaedics team at Royal Hampshire County Hospital in Winchester later this week, I suspect that they will not tell me that the workforce is not one of the things on their worry list, so it is regrettable that the Government cannot accept amendment 29B. They are obviously going to get their way and win the vote, but will the Minister and his team reflect on the argument that has been had between the two Houses over the past year and, in that spirit, take this issue forward? It is not going away, I need to have an answer for the team on Friday, and what I am hearing right now is not going to satisfy them.

[Edward Argar]

I hope I can reassure my hon. Friend that I always reflect carefully not just on what he says and what my right hon. Friend the Member for South West Surrey (Jeremy Hunt) says, but on what the other place, and other hon. and right hon. Members on either side of this House, say.

I hope I have provided the majority of colleagues with sufficient reassurance about the steps the Government are already taking and our commitment to ensuring that we have the right number of people working in the NHS, coupled with the increases in staffing that we have already delivered and continue to deliver. I hope that the House will again agree that the substantial work already being undertaken by the Government to improve workforce planning is leading to the improvements we all seek, and I therefore urge hon. Members to reject their lordships’ amendment.

We also ask that amendments 80, 80P and 80Q are rejected and amendments 80A to 80N are accepted in lieu. The cap on care costs clause is key to this Government ending unpredictable care costs for everyone by introducing a universal £86,000 cap. That must stand part of the Bill, alongside the necessary further amendments 80A to 80N, and we encourage hon. Members to back us on this.

This Bill is an important step forward in evolving our health and care system to meet future needs, and it comes from a Government who are clear in both their record and their future plans in their support for our NHS. I hope that the other place will heed the large majorities with which this House has already sent these measures back to it, and I hope that we will do so again this evening. We always listen to the other place, but we believe that this House has, on multiple occasions and hopefully again this evening, expressed a clear view of our position on these matters.

Question put, That this House disagrees with Lords amendment 29B in lieu.