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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.)

NHS England Funding: Announcement to Media

Edward Argar Excerpts

Monday 25th October 2021 Commons Chamber

[Daisy Cooper (St Albans) (LD)]

(Urgent Question): To ask whether the Government will make a statement on the announcement to the media of £5.9 billion for NHS England.

[The Minister for Health (Edward Argar)]

Mr Speaker, I hope that you will recognise that I seek to be assiduous in my accountability to this House and in adhering to its protocols and forms, not least as a former member of the Procedure Committee. I can reassure you that what you said just now will have been heard not just by me but by colleagues in my Department and in Her Majesty’s Treasury.

Just as we are determined to keep this country safe from covid-19, we also want to tackle the backlog that the virus has brought with it. We know that “business as usual” will not be enough, so we will do whatever it takes to ensure that people get the treatment they need as quickly as possible. In September, we announced plans to spend £8 billion to tackle the elective backlog over the next three years, in addition to the £2 billion this year.

The House will have seen the announcement of £5.9 billion to tackle the NHS backlog of diagnostic tests and procedures and to support the delivery of millions more checks, scans and treatments for patients across the country. This includes £1.5 billion for increased bed capacity, equipment, new surgical hubs to tackle waiting times for elective surgeries and at least a total of 100 community diagnostic centres to help to clear backlogs of people waiting for clinical tests such as MRIs, ultrasounds and CT scans, as well as £2.1 billion of investment to modernise digital technology on the frontline.

This is an historic package of investment that will support our aim of delivering around 30% more elective activity by 2024-25 compared with pre-pandemic levels. That of course comes on top of the work we are doing to strengthen the NHS workforce, who have performed so brilliantly throughout this crisis. All of this is vital if we are to help get our NHS back on track and ensure that no one is left waiting for vital tests or treatments and that we have the right buildings, equipment and systems so that our NHS is fit for the challenge ahead.

[Daisy Cooper]

Almost every elected Member of this House woke up this morning to see the announcement of extra cash for the NHS in England to reduce the covid backlog, although it contained absolutely no details at all. There were no details on where the money will come from, no details on what this means for the almost 6 million people still waiting for treatment, and no details on what it means for our exhausted NHS staff. The Minister has reportedly said that this money is new. Well, is it? How do we scrutinise that claim? Will the Minister set out clearly today—not on Wednesday—where the money is coming from?

Many hospitals in the Government’s so-called new hospitals programme, including those in west Hertfordshire, have been waiting months for funds to be released so that they can start renovation work. Is any of this so-called new money actually part of these existing commitments? There are almost 6 million people stuck at home in pain waiting for treatment. Senior medical staff are predicting thousands of early deaths if the Government fail to act. People are desperate to know how many more weeks they have to wait for their operation. Can the Minister tell them?

Finally, it is all very well announcing money for new diagnostic tests and medical equipment, but there are tens of thousands of vacancies in the NHS. Without the trained medical staff to use these new facilities, this plan is doomed to fail. Without a serious plan to recruit the NHS staff that we desperately need, England could face an epidemic of empty wards and shiny new scanners and superfast broadband going to waste because the staff who make our NHS what it is simply are not there any more.

[Edward Argar]

The hon. Lady is right that the waiting list is 5.7 million and growing. As she will have seen, the Secretary of State has made it clear that the number could grow to more than 13 million if all those who would normally have come forward in the previous year do come forward. That is exactly why we are taking these steps. Rather than expressing concern about the announcement, I would have thought she would welcome this investment, this new money, to help tackle those waiting lists. Of that 5.7 million, around 1.36 million—I may be slightly out—are waiting for diagnostic tests, which is why this is so crucial.

The hon. Lady asks where the money is coming from. She tempts me, but I am afraid she will have to wait until Wednesday’s Budget for the Chancellor to set out how he is funding each of the announcements.

The hon. Lady touched on the single most important element of our ability to tackle the pandemic and to respond to the consequences for the elective waiting list and, as I know she would, I put on record our thanks and gratitude to those staff. Radiologists and radiographers are the key people in this space, and since 2010 we have increased the clinical radiology workforce by 48% from 3,239 to 4,797 full-time-equivalent posts. The number of diagnostic radiographers is up by 33% since 2010.

Does that mean we need to continue to do more? Of course it does, and she is right to highlight the need for continued investment in our workforce. She will have seen last month’s announcement of £12 billion of funding, a significant part of which will help to build that workforce, on top of the commitments we made at the last election and on which we are delivering.

[Mr Peter Bone (Wellingborough) (Con)]

The well-known journalist Michael Crick put out on Twitter:

“Tonight, in quick succession, I—& no doubt other reporters—received 6 Treasury press releases about what’s in next week’s budget—5 of them embargoed to various times over weekend… Whatever became of budget secrecy & announcing things to MPs first?”

The Government have put up a good Minister, so we cannot have a go at him for that, but why does he not go back and tell his friends in the Treasury, at the very least, to provide Members with copies of these embargoed press releases? If it is good enough for the media, it is good enough for us in this House.

[Edward Argar]

I am grateful to my hon. Friend, indeed my friend, and I understand and entirely appreciate where he is coming from. He is an assiduous parliamentarian and quite rightly, as Mr Speaker alluded to, he takes the role of this House extremely seriously, as do I. I suspect that what he says, just as what Mr Speaker said, has been heard loud and clear both in the Department of Health and Social Care and across the Government, including in the Treasury.

[Jonathan Ashworth (Leicester South) (Lab/Co-op)]

Thank you for granting this urgent question, Mr Speaker. I remember a time when Chancellors went into purdah before a Budget. Perhaps that tradition needs to return.

Fortunately, I received the press release on Sunday. I should not have, but I was sent it, and obviously Members should have received it, too. Of course the NHS is in a desperate state and is under crushing, unsustainable pressure, partly because of a decade of under-investment in infrastructure, the cutting of thousands of beds and raids on the capital budget. It means that today, hospitals are facing a repair bill of £9 billion, and we have sewerage pipes bursting, ceilings collapsing and equipment breaking down. The number of safety incidents in hospitals as a result of these problems has increased by 15% in the last year alone. Not only is the equipment old and outdated but, on a head-for-head basis, we have some of the lowest numbers of computed tomography and magnetic resonance imaging scanners in Europe and the highest numbers of fax machines. Capital budgets have been raided throughout the last 10 years. Will the Minister confirm that, in what he is announcing, the total capital budget will be ring-fenced and not raided in the coming years?

The Minister has not mentioned mental health, but we have thousands of unsafe and undignified dormitory wards. Will there be extra capital investment to get rid of them? If so, by when? Will the diagnostics centres that he mentioned be provided and run by the NHS or run and supplied by private sector contractors? He said that we will clear the 1.3 million backlog in diagnostic tests by the end of the Parliament, but nobody wants to see ghost surgical hubs or new equipment standing idle. Who will staff the diagnostics centres? Who will staff the surgical theatres? Who will operate the new equipment?

The Minister mentioned diagnostics staff, but we are short of one in 10 of them. We are also short of 55% of consultant oncologists, short of radiologists and short of 2,500 specialist cancer nurses. Will he guarantee that the Health Education England budget will be not frozen or cut but properly funded to recruit the thousands of extra doctors, nurses and NHS staff needed to provide safe care and bring waiting times down?

[Edward Argar]

I am grateful to the right hon. Gentleman—my constituency neighbour—for his sensible and reasonable questions. I will endeavour to answer each of them in turn. On capital, he will know, not least because his local hospital—mine as well—is in that list to receive capital investment as part of the overall 40 new hospitals programme, that an initial £3.7 billion has been already allocated to the 40 hospitals that we are committed to delivering by 2030. That is investment not just in maintenance but in replacing old or outdated stock with new hospitals to minimise those longer-term maintenance bills. He is right that we must continue to support ongoing maintenance, as we have done. To take one example, we did exactly that by making an extra £110 million available to help support the maintenance of RAAC—reinforced autoclaved aerated concrete—plank hospitals around the country.

On mental health, the right hon. Gentleman is right to talk about capital investment. In the context of those new hospitals, mental health facilities and hospitals are included. They have not been left out; they have got their share.

The right hon. Gentleman also rightly talked about staff, which, as I said to the hon. Member for St Albans (Daisy Cooper), is a key point. We have seen significant increases in the number of doctors and nurses. He is right to highlight the need for continued increases in specialisms such as radiographers and radiologists. I highlighted the increases that we have seen, but we know just how valuable they are. I alluded to the £12 billion that the Secretary of State announced back in September, a significant part of which will go to support the workforce in the delivery of elective recovery.

On how community diagnostic centres and community diagnostic hubs will both be selected and operate, we are working closely with the NHS on exactly how to do that to ensure that the workforce are sufficient and that we do not impose burdens over and above those already imposed on them. I think that I have answered the right hon. Gentleman’s questions, but I am sure that his hon. Friends will come back if I have missed anything.

[John Redwood (Wokingham) (Con)]

Mr Speaker, you spoke for many of us in the guidance you gave the Government. I trust that they will follow it.

Given that in the last two years very large sums of money have been spent on test and trace, establishing a successful vaccine programme, Nightingale capacity and other one-offs for the pandemic, how much of that money will become available to spend on the other work that is now so desperately needed in the NHS?

--- Later in debate ---

[Edward Argar]

My right hon. Friend will know that by far and away the overwhelming majority of that money was one-off spending to tackle the pandemic in its most acute phase. We will need to continue to spend some of that on therapeutics, vaccinations and similar. On other things, such as the significant increase in infrastructure and understanding that we have built in test and trace and in testing and diagnostic capacity, I am looking at how a long-term legacy can be born of that and how we can transition the learnings and infrastructure from that to continue to deliver for patients in more normal times.

[Martyn Day (Linlithgow and East Falkirk) (SNP)]

This announcement goes to the very heart of what is wrong with the Union. Ministers make decisions from here in real time for England based on their perception of needs, while the devolved nations get the consequentials. The Health Secretary’s announcement mentioned that consequentials would be coming. Can the Minister tell us today exactly how much money is coming to Scotland and when the Treasury will send it?

[Edward Argar]

The hon. Gentleman is absolutely right that the Secretary of State said that there would be Barnett consequentials. The details of those will be set out on Wednesday.

[Theresa Villiers (Chipping Barnet) (Con)]

I warmly welcome the huge sums that the Government are devoting to the NHS, but I echo other people in saying that for the funding to work we need to have the people working in the NHS. Will the Minister set out what the Government are doing to improve the retention of doctors and nurses in our national health service, and particularly to persuade women to stay in the workforce because of the crucial roles that they play and the importance of having that capacity in the NHS?

[Edward Argar]

I am grateful to my right hon. Friend. We have rightly set out what we are doing to increase numbers through recruitment, but as she says a key part is retaining the skilled and dedicated workforce. We need to recognise that there is not a separate workforce who have been dealing with the pandemic and who will now to be dealing with elective recovery—they are the same NHS workforce, who will all have been working very hard. We have to be sensitive to the fact that they need the time to recover physically and emotionally after the pandemic. That is what we are seeking to do.

We are being realistic in setting expectations about how long it will take to clear the backlog. It is right that we do that with the public, because we must look after our workforce. One of the single biggest things we can to do help with retention is to be flexible with our workforce—recognising, exactly as my right hon. Friend says, the need for flexibilities, not just for female members of our workforce but for all our workforce, as well as the need for additional staff to come through and help ease the burden.

[Karin Smyth (Bristol South) (Lab)]

The waiting lists are now the longest we have ever seen, plus there are the 7 million people who did not come forward during the pandemic. That means that the validation of the lists is a mammoth task. The clerical validation is quite simple—phoning people up to see whether they still live at the relevant address, whether, sadly, they have died or whether they have moved on—but the clinical validation is now really important. What conversations is the Secretary of State having with clinical leaders about the criteria being used to validate these lists? Crucially, how are local people going to be involved in how and why clinical decisions are being made about who will be treated and in what order?

[Edward Argar]

The hon. Lady and I have spent many days in recent weeks sitting opposite each other in the Health and Care Bill Committee, and she knows of what she speaks given her background in the NHS. She is right about the validation of those lists and then the prioritisation, but although it is absolutely vital that we ensure that patients and those on the waiting lists are kept informed and included in the decisions and discussions about their care, her key point was about clinical decision making. In this context, the decision making and prioritisation must be clinically led.

I have spoken with the Royal College of Surgeons and others of the royal colleges about how we approach the issue. We should look at a number of factors. Is it possible with these new approaches to deal quickly with a large number of high-volume, low-complexity treatments that impact on quality of life? Equally, there are very complex treatments for which a month, a week or even a day longer can lead to more adverse clinical outcomes.

It is right that we go for clinical prioritisation. Although I am keen that we should keep people informed and engaged as participants in the process, it is vital that we see this issue as clinically led.

[Mr Mark Harper (Forest of Dean) (Con)]

I warmly welcome the funds that have been provided to the NHS to deal with the backlogs, particularly for those who stayed away from the NHS during the pandemic. Does the Minister agree that this is effectively a deal—a contract, if you like—with the NHS? We are providing the resources, which we voted for; it is the job of NHS chief executives to take those resources and now turn them into the healthcare that our constituents need. It is not their job to send their representatives on the radio to try to get us to shut down the economy. If we do not have an economy to generate the wealth, we will not have the resources that we need to fund our NHS.

[Edward Argar]

I always listen with great care to my right hon. Friend. He is right that we in this House, on behalf of taxpayers, provide the resources to the NHS and others to deliver the outcomes that we want for all of our constituents, but it is absolutely right that the NHS and others set out their plans for doing so, and that we hold the NHS to account for delivery against those plans. Ministers will draw up those plans in tandem with the NHS because, quite rightly, just as I will hold the NHS to account, I know that my right hon. Friend will hold me to account in this House. A key element of those plans for tackling the backlog must also be reform and innovation rather than simply more of the same.

[Chris Bryant (Rhondda) (Lab)]

I honestly despair. This announcement will not make the blindest bit of difference to the backlog. There will not be the kit in place anywhere near in time to make sure that people get their biopsies back in the next 18 months or two years. There will not be enough staff, because we are not training enough this year even to backfill the number of people who are leaving all of these professions this year. The problem will get worse, not better, unless the Government can tell us how they will make sure that more doctors, oncologists, pathologists and dermatologists stay in the profession and that more of them do more additional sessions a week, for instance, by increasing their overtime payments. The Government might want to sort out the pension problems, which mean that many people are leaving. They might want to provide some kind of golden staying-on bonus for people and make sure that they have a few extra days’ holidays. Most of them are not desperate for money; they are desperate for just a moment to be able to draw breath so that they can do a decent job. However, if we do not have the people, this is all a waste of money.

[Edward Argar]

I know that the hon. Gentleman genuinely feels strongly about this issue. He and I discussed it in a recent debate in Westminster Hall, and I think I am due to meet him to discuss the 10 points that he flagged up then as genuinely practical suggestions to help improve both retention and recruitment in the NHS workforce. He knows that I am always happy to do that. Hopefully, my office will have been in touch with him. If it has not been in touch, it will be, because I want to have that conversation with him.

On the hon. Gentleman’s key point, there are number of things. This is about not only tackling the urgent backlogs now, but building a system that is resilient for the future and that can actually tackle the broader challenges that we as a society face. That means more diagnostic capacity and more diagnostic capacity at an earlier stage, as some other countries have. I am quite happy to acknowledge that, under Governments of both political complexions, we could have done more, and that is why we are doing more now, and I say that to him gently. He talks about urgency; he is right. He also makes a very important point, which I tried to allude to in my earlier answer. If I did not land it clearly, I will attempt to do so now. He is absolutely right to highlight the risk of burn out and exhaustion, for want of a better way of putting it. As I said, it is very easy for people to say that X specialty was not working during the pandemic because that surgery was not happening, but you can bet your bottom dollar that the people involved were probably helping out—the anaesthetists and theatre nurses were—so we do need to address that point. I will be happy to see the hon. Gentleman.

[Dr Luke Evans (Bosworth) (Con)]

To answer one of the points just raised, one of the key problems with driving productivity is that about 10% of a clinician’s time is spent on chasing admin. Can the Minister confirm that some of this money will be put into dealing with the primary and secondary care interface, for example, so that people do not have to spend their time chasing letters and appointments and finding out what has been happening? Those things should happen as easily as they do in our phones.

[Edward Argar]

My hon. Friend is absolutely right, which is why part of this figure—£2.1 billion—is allocated for things such as ensuring that digital patient records and shared care records are rolled out across every trust. There has been an extensive roll-out, but there is more still to do.

[Neale Hanvey (Kirkcaldy and Cowdenbeath) (Alba)]

I hate to tell the Government but there has been a shortage of clinical radiologists for at least 20 years. It takes 12 years to train a clinical radiologist, three to six years to train a radiographer, three to five years to get a specialist nurse and the same for a biomedical scientist. While the investment in the infrastructure is welcome—I would never shy away from welcoming investment in the NHS—there is a very real problem with staffing these centres. What assistance will be provided to NHS trusts to mount an international recruitment drive, because we will have to go to the international market to recruit the staff to these centres?

[Edward Argar]

I am grateful to the hon. Gentleman for welcoming the capital and for his tone. Quite rightly, he highlights the workforce point again. I go back to what I said to the hon. Member for St Albans (Daisy Cooper): on the basis of the figures that I have, since 2010, we have increased the clinical radiology workforce by 48% and the number of diagnostic radiographers is up by 33%. We continue to build on that. The hon. Gentleman is right about the long lead time, which is why it behoves me to say that the increase in numbers is a reflection not just of this Government, but of the previous Government’s investment in this space.

[Chris Grayling (Epsom and Ewell) (Con)]

It is certainly true that vast numbers of NHS staff have done an amazing job in the last 18 months in my constituency and elsewhere, and in secondary and primary care. It is right that we are committing these extra resources to help them to get the job done, and it is certainly the case that in the past we have not trained enough professionals in this world. However, I echo the comments of my right hon. Friend the Member for Forest of Dean (Mr Harper): it is simply not right to have the profession at this stage—when we are all, as taxpayers, making a big new commitment to the health service—demanding more lockdowns and more restrictions. We have got to live with this virus. It is also not right, when these large amounts are found by taxpayers—with some doubts from some of them—that we hear the same representatives still turn around and say, “It’s not enough.”

[Edward Argar]

I entirely appreciate where my right hon. Friend is coming at this from. I hope that, in answering my right hon. Friend the Member for Forest of Dean (Mr Harper), I was clear that we hugely value the amazing work done by all our NHS workforce. This is about providing them with the money and resources they need to do the job, but also stimulating reform and innovation alongside that. The final point made by my right hon. Friend the Member for Epsom and Ewell (Chris Grayling) was about the calls by some for particular policy approaches to this winter by Her Majesty’s Government. He will have heard my response to that on various media outlets on Thursday morning.

[Dame Diana Johnson (Kingston upon Hull North) (Lab)]

We are all agreed across the Chamber on the importance of the workforce in the NHS and social care. Will the Government consider—alongside a decent pay rise—a covenant to protect and support our NHS and social care staff, akin to the one that they are introducing for the police and the one that we already have for the armed forces?

--- Later in debate ---

[Edward Argar]

The right hon. Lady makes a good point. It is an interesting idea and I will certainly reflect on it.

[Andrew Selous (South West Bedfordshire) (Con)]

Thousands of new homes are being built to the east of Leighton Buzzard and to the north of Houghton Regis. Does my hon. Friend agree that those residents deserve a plan for a rational and budgeted increase in general practice capacity?

[Edward Argar]

My hon. Friend is coming back for a second bite of the cherry after Health and Social Care questions last week. I am well aware that there is significant housing development in his constituency and in many others. We need to ensure that the GP and broader health facilities follow that development, and do so in a way where the local health system can predict it and plan to deliver on that basis.

[Sarah Champion (Rotherham) (Lab)]

Minister, any investment in the NHS is welcome, but let us be honest: this is just a drop in the ocean compared with what has been taken out over the last 11 years. I am very concerned that there is still a lack of parity between mental health and physical health. In Rotherham, the longest wait time for a child’s mental health assessment is 204 weeks; that is nearly four years. What will the Minister do to speed the process up and ensure that there is parity of funding?

[Edward Argar]

The hon. Lady knows that I have a huge amount of respect for her and her work in this House. She is absolutely right to highlight the need for parity of esteem not just to be a phrase, but to be made a reality in our constituencies and on our streets. That is why we have significantly increased funding for mental health not just in revenue terms, but in the capital terms about which we are speaking today—as I alluded to in response to the shadow Secretary of State, in terms of investing in eliminating mental health dormitories, but also in terms of new hospitals. I suspect that the hon. Lady was possibly alluding to child and adolescent mental health services. I am always happy to discuss that issue with her, as is the Minister for Care and Mental Health, my hon. Friend the Member for Chichester (Gillian Keegan).

[Steve Brine (Winchester) (Con)]

My good friend and the very excellent Minister is going to help me out here, because he said that we will hold the NHS to account for these plans. He knows that I have raised this matter in the House before, when we announced the £12 billion of funding. I know that there is a plan for the catch-up; I know that it has been agreed with the Department and I know that it has been agreed with the Treasury, because a Treasury Minister has told me from the Dispatch Box. How can we all hold our local health trusts to account when we have not seen that plan? Please can it be published?

[Edward Argar]

My hon. Friend asks a key question. I can reassure him that he will see that plan published in the coming weeks. I know that he will both study it carefully and hold me and the NHS to account on what is in it.

[Alex Cunningham (Stockton North) (Lab)]

The new money is very welcome, but North Tees and Hartlepool NHS Foundation Trust is having to spend millions of pounds every year just to keep University Hospital of North Tees safe and operating. It is doing a grand job. But the Minister knows the facts of this: we really do need a new hospital in Stockton. So will the new one be announced any time soon?

[Edward Argar]

I am grateful to the hon. Gentleman. Everyone loves a trier in this place, particularly on behalf of their constituents. I have met him to discuss this, as he alludes to. I think I am overdue giving him an update letter on where we are. As he will be aware, we have had significant numbers of expressions of interest in the opportunity to be one of the next eight hospitals. We look forward to making an announcement on them in the spring of next year. I cannot say any more than that—but, as ever, he makes the point on behalf of his constituents.

[Simon Fell (Barrow and Furness) (Con)]

I warmly welcome this funding announcement. A few weeks ago, I visited the biochemistry department in Furness General Hospital. It is one of the best in the country, so I am glad that there is this focus on diagnostics capacity. Can the Minister confirm that funding will go to centres that already have capacity and the will to do more, rather than creating additional units that may draw it away from them?

[Edward Argar]

My hon. Friend makes an interesting and important point. These will be new diagnostic hubs, but he alludes to a central point. For example, there could be a hub in the car park of an existing hospital where these services are delivered to allow it to deliver them in a covid-free environment, rather than having the same front door for A&E or similar. We are working through the exact detail of how these new hubs will be delivered, but we will be looking at how they can potentially fit with existing services.

[Cat Smith (Lancaster and Fleetwood) (Lab)]

Capital investment in our hospital estate is desperately needed at Royal Lancaster Infirmary—an incredibly old hospital site, which comes with its challenges. Does the Minister agree that closing two hospitals—Royal Lancaster Infirmary and Royal Preston Hospital—to make one new hospital is not creating a new hospital but is in fact a net loss of one hospital? He has a letter on his desk from me asking for a meeting to discuss the future of the hospital site at Royal Lancaster Infirmary. Does he agree that my constituents in Lancaster, which is a growing city, need to have a hospital that they can access?

[Edward Argar]

The hon. Lady will know that, while her local clinical commissioning group—her local health system—may well be considering various options, it has not put any particular option forward to me in that context. I look forward to seeing her letter, but I am certainly happy to meet her if that pre-empts my reply.

[Paul Bristow (Peterborough) (Con)]

My constituents in Peterborough will be thrilled with the £5.9 billion to clear the backlog and the extra cash for diagnostic services, but they will also be keen that that money is spent well. Will the Minister ensure that many more clinicians practise at the top of their licence doing the things that we need them to do, rather than spend their time doing things that clerical staff and more junior colleagues would be better placed doing?

[Edward Argar]

We need to make sure that our NHS workforce, which is diverse in terms of its skills and background, is able to work where those skills are most effectively deployed to deliver the best outcomes for patients. My hon. Friend is absolutely right: where are there are administrative tasks, which I do not in any way denigrate, that are better performed by an administrator than a clinician, we should be looking to deliver that.

[Jim Shannon (Strangford) (DUP)]

I commend the Minister for being assiduous and incredibly dedicated. We welcome money wherever it comes from because it is important to have it. In Northern Ireland we are very keen to see what that money will mean. Will similar money be provided for Northern Ireland through the Barnett consequentials? Will there be any direction as to how the money is spent—for example, to address this year’s non-elective surgery waiting list to give people their sight back, their ability back, and indeed, for some, their lives back? What discussions have taken place with Robin Swann, the Health Minister, in relation to that?

[Edward Argar]

I am grateful to the hon. Gentleman —my hon. Friend—for his question. The Chancellor will set out the detail of Barnett consequentials in due course. The hon. Gentleman knows that I speak to Robin Swann, to whose work I pay tribute, at regular intervals—almost fortnightly—about a number of things. I have not yet discussed the detail of this matter with him, and it will be for him as a devolved Health Minister to make those decisions, but I will of course discuss it with him.

[Mr Philip Hollobone (Kettering) (Con)]

My constituents in Kettering will welcome the extra NHS investment in diagnostics and elective care, but the best way to permanently increase elective capacity in Kettering is for permission to be given for the go-ahead for the redevelopment of Kettering General Hospital. In that regard, will the Minister impress on NHS England and NHS Improvement the urgent need to approve and give permission for the strategic outline case for the hospital redevelopment?

[Edward Argar]

For a brief moment, I thought my hon. Friend was not going to mention the new hospital at Kettering. Yes, I am very happy to have that conversation with NHS England colleagues as I continue to discuss the new hospital in his constituency with them at regular intervals.

[Rachael Maskell (York Central) (Lab/Co-op)]

Workforce planning failures have brought us to this point, but many of the patients on the elective waiting lists will be showing up in primary care, and with greater acuity as they wait longer for their treatments. What additional support will the Minister give primary care to manage people on all these waiting lists?

[Edward Argar]

The hon. Lady is right to highlight that primary care and GP practices are often the front door for the vast majority of these people on the waiting lists, and I pay tribute to the hard work of GPs up and down the country over the past year and a half to two years. She will have seen the announcement a few weeks ago by my right hon. Friend the Secretary of State, in which he set out further support that would be made available to help GP practices.

[Alexander Stafford (Rother Valley) (Con)]

Our GPs have done an amazing job across the country, but especially in Rother Valley, whether that is the Dinnington Group Practice, Swallownest Health Centre or the Stag Medical Centre. I note that there has been a 35% increase in the amount of junior doctors wanting to become GPs. Can we make sure that some of those new GPs and new applicants are in Rother Valley?

[Edward Argar]

We should make sure that general practice is an attractive career for newly qualified doctors wherever they are in the country. I suspect it will be for those individuals joining the profession to determine where they wish to practise, but I suspect my hon. Friend will do a very good job of explaining to them the joys of working in Rother Valley.

[Catherine West (Hornsey and Wood Green) (Lab)]

There are very worrying press reports about a lack of midwifery. Can the Minister put his hand on his heart and tell us that every single trust in the country has a safe ratio of staff to women giving birth?

[Edward Argar]

The hon. Lady asks a very important question. Patient safety, including in midwifery and births, is central to what we are about in this Government and in NHS England. That is one reason why we have seen more than 9,000 more nurses, midwives and health visitors recruited, but we need to continue to do more, and we will continue to do so.

[Cherilyn Mackrory (Truro and Falmouth) (Con)]

I am certain my constituents will warmly welcome this additional funding. There is currently unprecedented demand on health and care services in Cornwall, more now than at any point in the pandemic. The Royal Cornwall Hospital in Truro has escalated its operational level from operational pressures escalation level 4, or OPEL4, to “internal critical incident”. I welcome the meeting that the Cornish MPs had with the Minister last week. I have written to the Secretary of State to ask how we can get some additional support to help us to de-escalate this unprecedented situation.

[Edward Argar]

As my hon. Friend alludes to, I met her and other hon. Friends from Cornwall last week to discuss this matter. I appreciate the pressures facing the NHS in Cornwall, particularly after the pressures it faced over the summer, when other parts of the system may have experienced slightly less pressure, because of all the holidaymakers who rightly go to visit Cornwall. I look forward to working with her further on this and thank the staff of the trust for what they are doing. We recognise the challenges, which is why we are providing this extra capital funding, including capital funding from previous pots, to her trust. I am happy to have a further meeting with her and her chief exec, if she feels that would be helpful.

[Wera Hobhouse (Bath) (LD)]

The Royal College of Radiologists reports that, as of today, another 1,675 consultants are needed to keep up with current NHS demand. The Minister pointed earlier to a recruitment drive and said that 48% more have been recruited. Still, 1,675 consultant staff are needed. If he cannot give us the answer today, how on earth will he recruit these important people very soon? Will he come back with a statement very soon on how this situation will be resolved?

[Edward Argar]

What I said in response to the hon. Member for St Albans (Daisy Cooper) and other hon. Members was that we have seen the number of radiographers and radiologists grow steadily since 2010, and it continues to increase. I appreciate the point made by the hon. Member for Bath (Wera Hobhouse) about the rate of growth, but it is growing. We are recruiting and training more, so I think we are on track to continue recruiting more into that space.

[Robert Halfon (Harlow) (Con)]

I strongly welcome the new money for the national health service on top of the £34 billion that will be spent. Is it not the case that the new money—the many billions being spent on the NHS—is one of the reasons why we will be able to fund our new hospital programme, including the new Princess Alexandra Hospital in Harlow?

[Edward Argar]

The Princess Alexandra Hospital in Harlow has no greater champion that my right hon. Friend. I reassure him that, as he knows, it is on the list of 40 new hospitals that we are committed to building before 2030.

[Henry Smith (Crawley) (Con)]

I, too, welcome the significant extra resource for our national health service as we tackle the covid backlog. I seek an assurance from the Minister that more difficult to detect conditions, such as blood cancers, will be at the heart of what those diagnostic hubs will deliver.

[Edward Argar]

The purpose of the investment in diagnostic capacity is not only to tackle the backlog but to provide a long-term solution to allow diagnostic tests to take place for more people earlier in the illness and to detect illnesses at an early stage. We know that is a key part of tackling illness, preventing serious illness and aiding recovery.

[Duncan Baker (North Norfolk) (Con)]

I welcome the funding for the NHS, and I ask the Minister whether the funding will get down to our ambulance trusts too. Around the country, including in my constituency, waiting times are under huge pressure. What help will there be for winter ambulance pressures, particularly in North Norfolk?

[Edward Argar]

The funding is capital funding for diagnostic hubs and surgical hubs, which will ease pressure by allowing day surgery to continue but without taking up beds in acute settings and while allowing the flow of patients through A&Es. On my hon. Friend’s specific point, we have already announced and provided £55 million to aid our ambulance trusts this winter.

[Mr Speaker]

Can I say thank you to the Minister? In fairness, he had to answer the urgent question because of the actions of others. Hopefully the message has gone back to the Treasury that it ought to ensure that the House hears first. Hopefully there is a lesson that may have been learned; if not, we will continue with the same lessons.

Oral Answers to Questions

Edward Argar Excerpts

Tuesday 19th October 2021 Commons Chamber

[Nick Fletcher (Don Valley) (Con)]

4. What plans his Department has to build a new hospital in Doncaster.

[The Minister for Health (Edward Argar)]

We have now received applications from trusts to be one of the next eight hospitals in our new hospital programme, which will be the biggest hospital building programme in a generation. I understand that an expression of interest has been submitted, proposing developments at the Doncaster Royal Infirmary site. Although I cannot comment on this particular application at this stage, I can tell my hon. Friend that we aim to make our final decision in spring next year.

[Nick Fletcher]

It appears that every time that I am fortunate enough to ask a question relating to health and social care, another disaster has happened at Doncaster Royal Infirmary. This time, it is a second water leak in the women’s hospital. Given that there is a maintenance backlog of £514 million and the newest part of Doncaster Royal Infirmary is older than the town of Milton Keynes, does my hon. Friend agree that a new hospital is not a “nice to have”, but an absolute necessity for the people of Doncaster? Will he please also visit Doncaster Royal Infirmary, although, with ceiling collapses and water leaks, he may need to bring a hard hat and some wellies?

[Edward Argar]

I cannot comment on the selection process while it is under way, but my hon. Friend is a strong and powerful advocate for his constituents and for a new hospital in Doncaster. He has met me a number of times and continues to raise this matter in the House. I should perhaps have taken him up on his offer of a visit in the summer, when it was sunny, but I am still certainly happy to take him up on that offer.

If I may briefly be indulged, Mr Speaker—we do not often have the opportunity to do this from the Front Bench—let me say that I am grateful to the hon. Member for Tooting (Dr Allin-Khan) for her kind words about our late colleagues, James Brokenshire and Sir David Amess. The last time I saw David was a few weeks ago, when he posed for a photo that he wanted with me and then tried to impress on me the question of whether I would come to the wonderful town of Southend.

[Mr Speaker]

City.

[Edward Argar]

Hang on, sir! I was about to say that I would be delighted to visit what is now the city of Southend. My only deep sadness is that our friend will not be there to meet me when I do so. He and his family are very much in our thoughts.

[Aaron Bell (Newcastle-under-Lyme) (Con)]

5. What discussions he has had with the Secretary of State for Environment, Food and Rural Affairs on the (a) short-term and (b) long-term impact on public health of the ongoing odorous emissions from Walley’s Quarry in Newcastle-under-Lyme.

--- Later in debate ---

[Sir Edward Leigh (Gainsborough) (Con)]

9. What steps he is taking to reduce elective procedure backlogs in the NHS.

[The Minister for Health (Edward Argar)]

We have committed an additional £1 billion this year to increase elective activity and tackle the backlog, doubling the £1 billion already provided through the elective recovery fund. Over the next three years, we plan to spend more than £8 billion to fund the biggest catch-up programme in NHS history, which comes atop, of course, the record £33.9 billion increase in funding and the health and social care levy.

[Sir Edward Leigh]

Before asking my question, may I make a declaration of personal interest, namely, my age? People of my generation and older are finding more and more delays in elective procedures, but the response of the Government, as we just heard, appears to be to just pump more taxpayers’ money into the bottomless pit of the NHS, resulting in ever more waste and lower productivity. Why do the Government—this Conservative Government—not use innovative private sector solutions to relieve some of the pressure on the NHS? Why do they not do what the Major Government did—hardly right-wing extremists—and give tax relief for private health insurance?

[Edward Argar]

I have known my right hon. Friend for a long time and he is eternally youthful. As my right hon. Friend the Secretary of State set out, the record investment that we are putting into our NHS, particularly to address the elective procedure backlogs, goes hand in hand with innovation and reform.

To the specific point of my right hon. Friend the Member for Gainsborough (Sir Edward Leigh), the NHS is utilising the independent and private sector to carry out procedures for NHS patients. As he would expect me to say, however, tax breaks or similar are matters for the Chancellor, not me.

[Rachael Maskell (York Central) (Lab/Co-op)]

The thresholds of the elective recovery fund have a perverse impact, so hospitals with the least capacity are more unlikely to have the money to build their capacity. What steps will the Minister take to ensure that my constituents in York have funding from the Government to help build that capacity and have the elective surgery they need?

[Edward Argar]

In respect of the elective recovery fund and the thresholds, the hon. Lady recognised that they are an additionality alongside the record extra investment that we are putting into our NHS. We are putting more resources in, alongside reform and innovation, to deliver that increased capacity. The elective recovery fund is also designed to stimulate activity and to reward additional costs over and above that activity. We believe it is the right approach to generate that increased activity.

[Philip Dunne (Ludlow) (Con)]

The elective procedure backlog requires appropriate capacity for recovery and rehabilitation, much of which is provided by community hospitals, especially in rural areas. Is the Minister aware that on Friday, NHS Shropshire announced the imminent closure of Bishop’s Castle Community Hospital for patient safety reasons due to a lack of qualified nursing staff? Will he work with me to put pressure on the local NHS to develop a plan to recruit suitably qualified nurses and reopen the hospital as soon as possible?

[Mr Speaker]

On elective surgery.

[Edward Argar]

In the context of elective surgery recovery, my right hon. Friend makes an important point about the role that community hospitals play in helping to drive down waiting lists. I am grateful to him for drawing that to my attention and I will look into the specific situation he raised. It is important that, alongside providing a service, it is a safe service. I am happy to work with him to see what can be done in that situation.

[Emma Hardy (Kingston upon Hull West and Hessle) (Lab)]

Delays in procedures are causing increased pressure on our adult social care system. In September, East Riding of Yorkshire Council told my constituent that there was not a single carer to be had for her mum in the whole of the East Riding, and that the family’s options were to put their mum into residential care or to deal with it themselves. I spoke to those on the Conservative-led council to check whether that was true, and they said yes. They are facing a huge shortage of carers and they asked for my support in lobbying their Government for increased funding for social care. Will the Government give East Riding of Yorkshire Council the extra funding it needs to raise the wages of carers and try to attract some of them back to the profession?

[Edward Argar]

The hon. Lady is right to highlight that, essentially, social care and the NHS go hand in hand; they are two sides of the same coin. That is why we have made ambitious proposals, and will bring forward further proposals, for furthering the integration of those two sides.

The hon. Lady raised a specific case to illustrate her point. I, or perhaps more appropriately the Minister for Care and Mental Health, my hon. Friend the Member for Chichester (Gillian Keegan), would be happy to meet her to discuss the details of that situation.

[Jerome Mayhew (Broadland) (Con)]

12. What steps his Department is taking to build new hospitals.

[The Minister for Health (Edward Argar)]

I am grateful to my hon. Friend for his question. In October 2020 the Prime Minister announced details of 40 schemes that we will be taking forward in line with our manifesto commitment to deliver 40 new hospitals by 2030, supported by an initial £3.7 billion investment for them.

[Jerome Mayhew]

This seems to be the crumbling hospital corner of the House, as we have already heard from my hon. Friend the Member for Don Valley (Nick Fletcher) about his concerns. In Norfolk, we have the Queen Elizabeth Hospital, which is physically crumbling, and the ceilings and roofs are held up by wooden staves and acrow props. Although it is not in my constituency—it is in the constituency of my hon. Friend the Member for North West Norfolk (James Wild)—it serves the entire county, and eight Members of Parliament have written in support of the bid. Could I invite the Minister to visit the Queen Elizabeth Hospital to see for himself the state of its structure?

[Edward Argar]

I am very grateful to my hon. Friend, who quite rightly recognises and highlights the work that my hon. Friend the Member for North West Norfolk (James Wild) has put into championing the cause of this hospital. I understand that it has put in an application to be one of the next eight hospitals, which will of course be considered very carefully. I am very happy to visit Norfolk as well, but I would also highlight that one of the key issues at this particular hospital is the existence of RAAC—reinforced autoclaved aerated concrete—planks, for which we have already provided £20 million for remedial works this year.

[Valerie Vaz (Walsall South) (Lab)]

As well as building new hospitals, the Government appear to be downgrading existing ones. Will the Minister meet me to discuss the downgrading of Walsall Manor, so that I can explain it to constituents and whistleblowers?

[Edward Argar]

I am always happy to meet the right hon. Lady. However, I would say to her that decisions such as that are NHS-made, clinical decisions. That is the framework through which they should be viewed, but I am always happy to meet her.

[Sara Britcliffe (Hyndburn) (Con)]

Will the Minister agree to meet me in Hyndburn to discuss plans for Accrington Victoria Hospital, making sure we are utilising our fantastic and historic building to its full potential?

[Edward Argar]

The short answer is that it looks as though I may be going on tour in the coming months, and I am delighted to accept my hon. Friend’s kind invitation.

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

With a £9 billion maintenance backlog, examples of which we have heard this morning, it is truly mind-boggling that the Department’s priority has been to try to change the definition of what a new hospital is, so let us cut out the spin on 48 new hospitals. Can the Minister tell us, of those 48—if we take out all the projects under way before the announcement was made, and those that are new wings, extensions or refurbishments of existing buildings—exactly how many new hospitals will be built by 2030? It is not 48, is it?

[Edward Argar]

I am grateful, I think, to the shadow Minister. We have a very clear definition of a new hospital, which I believe is shared by the public. It also leans on VAT notice 708 and its definition of what constitutes a new build or a refurbishment. To his specific question, we are committed to our manifesto commitment of 40 new hospitals by 2030—we build, the Opposition complain.

[Andrew Selous (South West Bedfordshire) (Con)]

T1. If he will make a statement on his departmental responsibilities.

--- Later in debate ---

[Ian Lavery (Wansbeck) (Lab)]

T9. A constituent of mine, David Brydon, suffered an horrendous accident at home, falling down the stairs and severing his spinal cord. His family were really encouraged to learn that a pioneering treatment—the ARC treatment, as it is known—is being trialled at Queen Elizabeth Hospital in Glasgow. However, they were severely disappointed to learn that because he lives in England, he does not have the opportunity to access the treatment. Will the Minister meet me to see if we can come to some sort of a resolution for Mr Brydon, please?

[The Minister for Health (Edward Argar)]

I am very grateful to the hon. Gentleman. This is what this House does best: raising and highlighting particular cases. I am very happy to meet him to discuss this very challenging case.

[Jeremy Hunt (South West Surrey) (Con)]

I would like to ask the Secretary of State about pressures in emergency care and comments that the new chief executive of NHS England made to the Health Committee this morning that we have shortages of 999 call handlers. Is he concerned about the time it is taking to answer some 999 calls? Do we have those shortages? What are his plans to address them if we do?

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 [email protected].

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

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.

--- Later in debate ---

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.

--- Later in debate ---

[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).

--- Later in debate ---

[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 (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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

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.

--- Later in debate ---

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.

--- Later in debate ---

[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.)

Future of the National Health Service

Edward Argar Excerpts

Wednesday 22nd September 2021 Westminster Hall

[The Minister for Health (Edward Argar)]

It is a pleasure to serve under your chairmanship, Ms Bardell; I think that I do so for the first time.

Although I suspect that it is fair to say that the hon. Member for Leeds East (Richard Burgon) and I are not fellow travellers in the same direction on many things politically, I congratulate him on securing this debate on a very important subject. Although his speech was long on opinion and perhaps short on fact, I do not think that anyone could doubt the passion or the sincerity with which he spoke, whether one agrees with everything he says or not. I pay tribute to him in that respect.

I think it is clear to everyone in this Chamber, as I hope it will be to people watching on Parliament TV and those who read the transcript of our debate, the genuine affection and respect that every Member of this House has for our NHS and those who work in it. It is right that I join the shadow Minister, the hon. Member for Tooting (Dr Allin-Khan), and others—I often do so on these occasions, because this cannot be said too often—in paying tribute to those who work in our NHS, including the shadow Minister herself. On the occasions when she and I see each other across the Dispatch Box, I always try to make that point.

A number of key themes have emerged today. The legislation is currently in Committee, and I know that a number of Opposition Members have argued that it should be paused or even scrapped. I have to say that the former chief executive of the NHS, Lord Stevens, said that about 85% of the Bill is exactly what the NHS asked for, wanted and wanted done now—ideally, the NHS wanted it done two years ago, before the pandemic.

In the evidence sessions of our Bill Committee, which continues to meet, we heard NHS Providers, the NHS Confederation and the Local Government Association all saying, “This is the right Bill at the right time.” I should acknowledge that some of those witnesses said there were certain elements that they would question or challenge, but they said it was the right time to pass this legislation. In fact, in a joint statement the NHS Confederation, NHS Providers and the LGA said,

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

At the heart of this legislation is the principle of integration underpinned by evolution. Colleagues across the House who have served with me since 2015 will know that I am not by nature revolutionary, so the legislation is evolutionary in what it seeks to achieve, but it seeks to achieve greater integration. I think it was the hon. Member for Liverpool, Wavertree (Paula Barker) who spoke about accountability needing to be upwards, downwards and sideways. With these proposals we seek to do exactly that: to achieve greater integration at a local level within the NHS and, at the ICP level, to achieve greater integration with local authorities.

[Margaret Greenwood]

What would the Minister say to the British Medical Association council, which passed a resolution overwhelmingly

“calling for the Health and Care Bill to be rejected, arguing that it is the wrong time to be reorganising the NHS, fails to address chronic workforce shortages or to protect the NHS from further outsourcing and encroachment of large corporate companies in healthcare, and significantly dilutes public accountability”?

[Edward Argar]

I will turn to those key points in a moment, but first I will address the specifics. The point I made to the Chair of the BMA council in Committee was that, if I recall rightly, every single piece of legislation on the NHS, including the National Health Service Act 1946 that brought it into place, has been opposed by the BMA. I challenged him to tell me which pieces of legislation the BMA had supported, and he said he would write to us. I have yet to get that letter; I am sure, knowing Dr Chaand Nagpaul as I do, that he will write to us, but in the Committee he was unable to say which piece of legislation—including Labour legislation in 1999, 2001, 2003 and 2006—the BMA had supported.

[Margaret Greenwood]

Will the Minister give way?

[Edward Argar]

I will make a little bit of progress, because I want to address the hon. Lady’s allegations about privatisation and workforce. If we have time at the end, I will of course seek to let her come back in.

On allegations or suggestions of furthering privatisation, I know it is tempting for some, even when they know better—and they do—to claim that this is the beginning of the end for public provision. It is not, and Opposition Members know it. There have always been key elements of the NHS that have involved private providers, voluntary sector providers and so on.

What is instructive is the extent to which that was accelerated when the Labour party were in power. The shadow Minister talked about the 2012 legislation and any qualified provider, but that was not brought in by the 2012 legislation; it was brought in by the Gordon Brown Government in 2009-10 under the term “any willing provider”. The name was changed, but nothing substantive changed from what the Labour Government had introduced in terms of the ability to compete for contracts.

The other point I would make is that one of the key changes allowing private sector organisations to compete for and run frontline health services came in 2004, under the Labour Government, when the tendering for provision of out-of-hours services by private companies was allowed.

[Bell Ribeiro-Addy]

So often—not only from Conservative Ministers, but from hon. Members generally—we hear about things that Labour did in the past. I remind the Minister that the Conservatives have been in power since 2010. We are telling him what we think the issues are with the NHS, and we do not want to hear about what Labour or the ghosts of Labour Prime Ministers past did. We want to know what the Conservative Government, who have been in power for 11 years now, are going to do to improve our NHS.

[Edward Argar]

I appreciate why Opposition Members might not want to hear what Labour Governments did in the past, given the extent to which they massively accelerated the privatisation of our NHS. To address the hon. Lady’s point directly, we do believe that there is a role for private providers, the independent sector, voluntary organisations and others in providing healthcare services in this country.

Workforce is an issue that a number of colleagues have rightly raised. I am afraid I cannot say to the hon. Member for Tooting and others that, among other things, I am taking on responsibility for mental health in my new portfolio. However, following the departure of my hon. Friend the Member for Faversham and Mid Kent (Helen Whately) to the Treasury, as of about three days ago, I will be assuming responsibility for workforce alongside the other responsibilities in my portfolio. I look forward to working with her and the hon. Member for Ellesmere Port and Neston (Justin Madders), who I believe is the shadow Minister, as well as meeting with Opposition Members who take a close interest.

The hon. Member for Rhondda (Chris Bryant) spoke with typical wisdom on that matter and made a number of very powerful points. At the risk of a negative impact on my career prospects—although the reshuffle has just happened, so hopefully I can get away with it now—I agree with a lot of what he said. He highlighted that, were it not for a prompt diagnosis, he would not be here. For what it is worth, I think I speak for everyone in the Chamber—if not on all points, then certainly on this one—when I say we are all extremely pleased that he is still with us. He is a man of great integrity and strong beliefs, and I look forward to working with him. We meet on a number of things. I am happy to meet with him to talk about his suggestions and how they might factor in to how we move forward, in the spirit of bipartisan and constructive discussion.

[Chris Bryant]

Get on with it.

[Edward Argar]

With the meeting or the job, or both? A number of hon. Members have raised “Agenda for Change” and pay and conditions. I hope I can reassure them, as I sought to do with the hon. Member for York Central (Rachael Maskell). It is not our intention that integrated care boards depart from “Agenda for Change”. The Bill is drafted in such a way as to seek to replicate what is currently there. On Second Reading, I offered to have a meeting with her. I would be very happy to have that meeting, if she gets in touch.

On funding, this Government have passed legislation increasing NHS funding by £33.9 billion by 2023-24 and put £2 billion into elective recovery. In addition, the Prime Minister announced a massive cash injection into our NHS a couple of weeks ago.

I want to give the hon. Member for Leeds East a little time at the end, so I will just make a couple of quick points. The hon. Member for East Kilbride, Strathaven and Lesmahagow (Dr Cameron) is right: we are always happy to learn from our Scottish friends. In response to the hon. Member for Strangford (Jim Shannon), that is a matter of medicine supply which I discuss regularly with the Northern Ireland Health Minister, and it is absolutely vital that we seek a resolution. I believe that the previous approach by Lord Frost is the right one to find a sustainable way forward.

[Dr Cameron]

On sharing best practice, I meant to mention that artificial intelligence technology is being used by NHS Greater Glasgow and Clyde and has reduced the heart failure diagnostic waiting times from 12 months to six weeks. I know that Lord Bethell will be visiting to find out more about that. I wanted to highlight it to the Minister today, because I think that technology can support NHS staff workload as we move forward.

[Edward Argar]

The hon. Lady has rightly highlighted the benefits of technology, while my hon. Friend the Member for Bolton West (Chris Green) highlighted the need for us to continue to move with the times and seize those initiatives. I fear that my noble friend Lord Bethell will not be visiting, as he left the Government at the end of last week. However, I have received a very kind invitation from the hon. Member for Central Ayrshire (Dr Whitford) to come and see how the NHS in Scotland is innovating and driving change. I look forward to taking her up on that invitation as soon as I can.

[Chris Green]

Just as medical devices and drugs innovate change over time, does the Minister agree that the place where the NHS operates and works must also change? Whether those are local surgeries or hospitals, they have to move with the times. In that context, would he also turn his mind to any needs that Bolton Royal Hospital may have in terms of new hospital infrastructure?

[Edward Argar]

My hon. Friend makes a fair point about the need for us to create the conditions—the physical spaces with the technology—in which the workforce, which is the heart of our NHS, can work. He makes a subtle—or not so subtle—plea for his own local hospital. He will not be surprised that I will not comment on the detail of that.

To finish my response to the hon. Member for Strangford, the Command Paper recognises the challenges posed by the current arrangements in the Northern Ireland protocol around the supply of medicines and other goods, for example. The approach that the hon. Member set out, of removing medicines and medical devices from the orbit of the protocol, is reasonable. I hope that discussions between the European Commission and Lord Frost are productive, and that a consensus can be reached on the way forward.

I have to take issue slightly with the hon. Members who raised the role of Sam Jones, one of the Prime Minister’s advisers. They focused on one particular aspect—that for a brief period she worked for an independent provider. What they did not do, which is extremely unfair to a dedicated public servant, is highlight that she worked for NHS England, running new care models; that she has been an NHS paediatric and general nurse; that she was the chief executive of Epsom and St Helier University Hospitals NHS Trust; that she was the chief executive of West Hertfordshire Hospitals NHS Trust; and that she was the Health Service Journal chief executive of the year for 2014 and was highly commended for her work in driving forward patient safety. I gently say that it ill behoves Members of the House to attack public servants, who cannot answer for themselves in this Chamber, with partial references to their careers rather than recognising that they have contributed a huge amount in the past.

The hon. Member for York Central was absolutely right to highlight health inequalities as one of the greatest challenges—not the only challenge—that we face as a society and as a health system. The measures on integration and change in the Bill will help us tackle those health inequalities. I suspect that on Report and Third Reading she may test and challenge me on those assertions and assumptions, but she is absolutely right to highlight the centrality of health inequalities.

The hon. Member for Liverpool, Wavertree (Paula Barker) spoke about residential care and the link to social care. While I am not the social care Minister, everything that I do in my role as Health Minister must have an eye to social care. I was a cabinet member for adult social care in the dim and distant past, when I had rather more hair, and I also sat on the primary care trust, as it then was, at that time. I recognise the need for those two parts of the system to work together to achieve the best outcomes for our constituents. She makes a valid and important point.

I found what the hon. Member for Wirral West (Margaret Greenwood) said about the US experience of great interest and instructive, but it is utterly divorced from what the Bill and the Government are doing in respect of our NHS. It was an interesting reflection on what is going on in America, but it certainly does not bear any resemblance to what is happening or will happen in this country.

[Margaret Greenwood]

Does the Minister not recognise that, where we have a postcode lottery and the increased rationing of care—my constituents are very aware of the rationing of care, and a number of Members have spoken about what happens when people cannot get the treatment that they need on the NHS—there is the spectre of an individual, private insurance-based system? Members of his own party have in fact argued for such a system. People need to be mindful of just how dangerous for us all it would be to introduce a private insurance-based system.

[Edward Argar]

Will the hon. Lady forgive me? I was not questioning the integrity of what she said, but I was suggesting that there was no risk of that system as she described it developing in this country.

I will sum up, because I want to give the hon. Member for Leeds East a little more than two minutes, if I can. We are determined to continue supporting our NHS; this Bill, this legislation, the funding announcements we have made and the reforms we are putting in place do just that. We want to create an NHS that is fit for the future, renewing the gift left to us by previous generations, building on that gift and strengthening our NHS as it evolves to meet the challenges of the future. We remain the party of our NHS; we will give it the support it needs—as we always have done.

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.

--- Later in debate ---

[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?

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.)