Health and Care Bill (Sixth sitting)

Justin Madders Excerpts

Committee stage
Tuesday 14th September 2021 Public Bill Committees

Question (this day) again proposed, That the clause stand part of the Bill.

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

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

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

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

[The Minister for Health (Edward Argar)]

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

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

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.

Clause 6

Support and assistance by NHS England

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

[Edward Argar]

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

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

[Justin Madders]

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

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

Proposed new subsection (2) talks about providing

“employees or any other resources of NHS England.”

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

[Edward Argar]

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

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

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

Question put and agreed to.

Clause 6 accordingly agreed to stand part of the Bill.

Clause 7

Exercise of functions relating to provision of services

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

[Edward Argar]

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

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

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

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

[Justin Madders]

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

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

[Karin Smyth (Bristol South) (Lab)]

Further to those points about clarity around the exercising of powers, the move to give NHS England that power is entirely sensible. The medical, dental, ophthalmic and pharmaceutical services have had a lower profile in our constituencies over the last few years, as I think we would all agree. It is important to give them the profile they need to be integrated into the system, because they have certainly not been so far.

The evolution of delegating that power to CCGs came late in the day, and remains muddled around the commissioning of primary care services. Therefore, while allowing the delegation of function is entirely sensible, it is not clear, as my hon. Friend the Member for Ellesmere Port and Neston has said, when or how that delegation will be sought. I think the Minister was referring to the involvement of the Secretary of State, but I am not sure in what circumstances the Secretary of State would be doing that, and why this would not be when NHS England, or NHS England regions, decides that the ICB is of a maturity to accept commissioning responsibilities.

One assumes that NHS England believes that at the moment some of those putative organisations are mature enough already; will some of them start doing that on day one, six months in or a year in? How will we know and how will they be resourced to do it? Is it a transfer of power? How NHS England and the local ICB, without representatives of medical, dental, ophthalmic and pharmaceutical bodies, will be taking that on board is all very opaque.

--- Later in debate ---

[Edward Argar]

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

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

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

[Justin Madders]

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

[Edward Argar]

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

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.

Clause 9

Funding for service integration

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

[Edward Argar]

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

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

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

[Justin Madders]

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

[Edward Argar]

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

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Clause 10

Payments in respect of quality

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

--- Later in debate ---

[Justin Madders]

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

[Edward Argar]

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

Question put and agreed to.

Clause 11 accordingly ordered to stand part of the Bill.

Clause 12

Role of integrated care boards

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

--- Later in debate ---

[Edward Argar]

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

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

[Justin Madders]

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

Question put and agreed to.

Clause 12 accordingly ordered to stand part of the Bill.

Clause 13

Establishment of integrated care boards

[Justin Madders]

I beg to move amendment 49, in clause 13, page 8, line 34, after “board”, insert

“NHS trust, NHS foundation trust, trade union, patient representatives and local authority”.

This amendment would ensure that trusts and local authorities are consulted before any changes are made to the number, shape and size of ICSs.

There are two big themes on integrated care and the White Paper in the Bill and associated documents. Our points are aligned with those of local authorities, using the integrated care partnership as the vehicle to bring the planning of services, such as social care and housing, into the wider framework. It is also the development of the concept of place.

Local government, as we know, does place; the NHS probably does not do it in quite the same way. The clue is in the name. The “local” in local government means that it has always done community engagement; it already has to integrate multiple public services around the needs of a defined population. It is fair to say that the NHS has operated in a very different way in the past and can appear to have a different geography for every service that is accessed.

The Bill settles on 42 as the magic number of areas that the NHS is divided into, which could be influenced by “The Hitchhiker’s Guide to the Galaxy” and the ultimate question about life, the universe and everything. That might make more sense than what has been put forward so far as the optimal configuration for the integration of services. The view of many of those who we have spoken to is that 42 is too many for the commissioning of most acute and tertiary services, and too big for the commissioning of primary and community services and social care. Like a lot of things, it is a compromise. It is a fudge. It is an accommodation between competing interests and views.

There is very little explanation in the Bill—in fact, we have zero explanation—about how place will work. We need to understand more about that from the Minister. How will place fit into the commissioning framework? I hope we can have some further guidance in the Minister’s responses. For us, the concept of place is just that—a concept. It is not really pinned down or articulated clearly in the legislation.

As Members will be aware, the NHS has had local government as its key partner in healthcare from the outset. That is recognised by various bodies. For a long time, boundaries were not an issue. We sometimes forget just how intimately involved the NHS and local authorities were at the outset of the NHS. That has obviously changed over the years. It would be fair to say that the current integrated care system boundaries are really a product of the NHS and the way that they have been imposed implies a great weakness in the whole Bill. It is supposed to be about integration between local authorities and the NHS, but it is almost all about what the NHS wants and what it thinks is the best outcome. It should have been co-produced with local government, not presented as a fait accompli. Is the Minister able to tell us how much local authorities and mayoralties were involved and consulted in the design of ICS boundaries?

There is a dilemma here. In our view, starting this way, with boundaries that do not always reflect the natural communities that they are meant to serve, will store up problems. We are less than impressed by what has happened to date, and while we might well be stuck with the 42 configuration that we have now, that does not mean that we agree with the process. I use the term “process” in the loosest possible way. We do not believe it should be a template for the future. Amendment 49 seeks that, in future, any changes in ICS boundaries should be decided in consultation and conjunction with trade unions, local authorities and trusts, and that they are consulted before any further changes to the shape or size of ICSs are made.

The problem we see is how the big acute trusts fit into the system. It has been a problem faced in places such as Scotland and Norway, which are further down the integration pathway. As would be expected, the big trusts dominate, but while they might take 80% of the budget, the vast majority of interactions for the patient are in primary and community care and, of course, in social care. All of those sit far more comfortably in the local authority footprint, as the National Health Service Act 1946 accepted. It is even simpler to consider place in terms of districts and wards or even super-output areas. Those terms are all very familiar to local government, and local authorities already take them into account when they consider how to deliver their services. When the Pandora’s box is opened, we assume place is aligned with something that has already been defined, and we do not try to invent yet another new geography, as has been attempted with ICSs.

I would like to hear from the Minister what the impact might be of further revisions to the boundaries. I understand that Ministers have looked at that and they have apparently changed some but not others, without publishing any real rationale. I note that there have been some cosy fireside chats, after which various changes have emerged. That reminds me of how the Conservative party used to anoint its leader, but it is hardly a transparent or open way to do things.

Let us do the job properly, transparently and openly. No ICS should have a boundary that has not been agreed with all the relevant local authorities. I have had some information from the Minister in reply to a written question about discussions that he has had with hon. and right hon. Members, and I am grateful for that. However, I am still waiting to see all the evidence and civil servants’ recommendations that he had to hand when he made his decisions. One of the main themes during the evidence sessions was the concern that the Secretary of State and Ministers could make decisions for party political, or other less than noble, reasons. Of course, I do not accuse the Minister of doing that, but when decisions of this magnitude are taken in this manner, such questions will be asked.

Whenever we have changed the boundaries of parliamentary constituencies, there has been an extremely lengthy process. When my own local authority, Cheshire West and Chester, came into existence, I recall that regulations were approved by Parliament. I know that because I lived through the trauma of that change; for the record, I should state that my wife is a member of that local authority. The point is that the contrast between what happens with that sort administrative border change and what has happened here is stark. I should also make it clear that I have another hat on. As the Minister will know, there have been many discussions about the ICS area in Cheshire and Merseyside, and, as I understand it, the configuration will be reviewed within the next two years. I am sure that the hon. Member for Eddisbury agrees with me that any decision on that should be made with more transparency than we have seen to date, not less.

As an aside, it is probably worth saying that if we pretend that everything can be resolved on a single footprint, we fail to acknowledge that there are regional arms of what is pretty much a national ambulance service, some trusts operate multiple services across clinical commissioning groups, and even tertiary services are commissioned by NHS England for large population areas. Acute care will not be commissioned at place or even ICS level, so we need to think about a simple place-based model for the rest. In terms of transaction volumes, the vast majority of care services, and indeed wider public services such as education and housing, are already provided on a local authority footprint.

At this point, I will mention our proposals for elected chairs, which I will come to shortly. With the right boundaries, it would be a lot easier to enact that. Proper co-location brings healthcare into line with the rest of the public services—local authorities, police and fire. It makes no sense at all for ICS boundaries not to be coterminous, and I do not think the Minister should disagree with me on that. The boundaries need to match those of combined authorities and mayoralties, and they should be set by local authorities and their partners, not just by the NHS. In terms of transactional volume, the vast majority of patient care interactions are in primary, community and social care, and for the patient they are all classed as local.

This veers into a bigger debate about devolution, mayoralties and combined authorities. The trend is one way. If we start with a blank sheet of paper, the answer is obvious: align along existing populations and boundaries. This matter should have been discussed well before the switch from sustainability and transformation partnerships to ICSs; indeed, that should have been done when the STPs were formed. That was the time to develop a proper and open process and deal with concerns. That is history now, but at least with this amendment we may be able to avoid repeating those mistakes.

--- Later in debate ---

[Edward Argar]

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

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

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

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

[Justin Madders]

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

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

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

--- Later in debate ---

[Dr Whitford]

Does the shadow Minister think that the fact we have heard today that Cheshire and Merseyside could be reviewed as quickly as in two years’ time might undermine some of the commitment on the ground? If people feel that it will all change again in two years, the engagement may be weakened.

[Justin Madders]

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

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

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

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

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

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

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

Amendment, by leave, withdrawn.

[Edward Argar]

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

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

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

(a) NHS England,

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

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

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

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

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

--- Later in debate ---

[Edward Argar]

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

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

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

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

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

Amendment 10 agreed to.

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

This amendment is consequential on Amendment 10.

[Justin Madders]

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

“Accountability

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

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

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

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

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

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

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

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

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

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

[Dr Whitford]

Is the hon. Gentleman talking about clinical outcomes? One of the issues is having national clinical standards against which every unit and every area should be able to benchmark itself. In Scotland, we have standards for 19 of the commonest cancers, which are continuously audited. I was directly involved in developing the breast cancer ones in 2000. We have data that goes back over two decades, which means we can see improvement. It is clinical outcomes that need to be the focus, and they need to be agreed nationally: it should not be for every local ICS to decide what it measures and how. Otherwise we cannot say, “We are getting rid of variability, we are saying that a patient with this disease in Newcastle will get as good treatment as they would in Liverpool or Wolverhampton.”

[Justin Madders]

The hon. Lady is right; we still have a national health service and we should have national standards, and they should be tagged to clinical outcomes. Of course, it would be down to the individual ICBs to deliver against those outcomes, but it is right that those performance measures should be comparable across different areas.

A robust system of reporting is easier to understand and is probably the most important thing from a patient’s perspective. It is so important that it should land on the Secretary of State’s desk. We will talk later about how ICBs can be more accountable to their communities, but this is very much about how ICBs can be accountable to this place. I hope the Minister will accept the amendment.

[Karin Smyth]

I rise to support the amendment, particularly in relation to outcomes. The Government do not accept having reducing health inequalities as an aim. In my round-up of 20 years of CCGs and all the rest of it, the driver over the past 15 years has been to put primary care at the centre of those organisations, recognising that 90% of patient contacts are within primary and community services.

We heard from representatives of GPs last week, and I have spoken to my local medical committee as well. They are very fearful—we can dispute whether the evidence exists for whether clinical outcomes are better as a result of these organisations’ being supposedly primary care-focused rather than dominated by the acute trusts, and whether that actually worked, but as a policy intent the Government are very firmly moving away from that position—and wondering what their real outcomes would be.

Were the Government to move along the lines suggested by my hon. Friend the Member for Ellesmere Port and Neston, a regular review of and look at outcomes in our local areas would perhaps help with that particular problem and highlight the driver that we need from community and primary care, as well as just looking at the financial dominance of the large acute trusts.

--- Later in debate ---

[Edward Argar]

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

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

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

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

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

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

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

[Justin Madders]

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

Amendment, by leave, withdrawn.

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

[Edward Argar]

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

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

--- Later in debate ---

[Edward Argar]

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

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

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

Question put and agreed to.

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

Schedule 2

Integrated care boards: constitution etc

[Justin Madders]

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

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

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

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

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

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

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

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

[Edward Argar]

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

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

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

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

[Justin Madders]

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

Amendment, by leave, withdrawn.

[The Chair]

Unless anyone wishes to move amendment 1, we now come to amendment 31.

[Justin Madders]

I beg to move amendment 31, in page 119, line 28, leave out from “for” to end of line 29 and insert

“an initial chair to be appointed by NHS England, with the approval of the Secretary of State, for a period of no more than 2 years and for subsequent chairs to be elected by the voters in the area for which the integrated care board is established in accordance with regulations made by the Secretary of State for that purpose.”

This amendment would require the first Chair of each Integrated Care Board to be appointed by NHS England, with the approval of the Secretary of State for a period of no more than 2 years and for subsequent chairs to be chosen through local election.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 50, in page 119, line 29, leave out

“, with the approval of the Secretary of State”.

Amendment 51, in page 119, line 29, at end insert—

“4A The constitution must provide for all members of the integrated care board to be consulted, and for any views expressed to be taken into account, before a chair is appointed.”

Amendment 52, in page 120, line 2, at end insert—

‘(1A) The constitution must provide for all members of the integrated care board and of the integrated care partnership to be consulted, and for any views expressed to be taken into account, before a chief executive is appointed.”

This amendment would ensure the involvement of the integrated care board and the integrated care partnership in the appointment of the ICB chief executive.

[Justin Madders]

Amendment 31 is about the ICB having an elected chair. Amendment 50 relates to the Secretary of State’s approval to remove the chair from the ICB, amendment 51 relates to consultation on an ICB chair’s appointment and amendment 52 relates to ICB and ICP members and consultation on the ICB chief executive’s appointment. I hope there were not too many “ICB”s and “ICP”s in that statement, but I will now set out some detail on the intention behind each of the amendments.

I would like to make some general points about integrated care boards. I would also like to put some specific amendments to a vote—unless, of course, the Minister does surprise me, and concedes on some of these points. Many things have been said about ICSs, ICBs and ICPs that do not appear in the Bill. In discussing this matter, some care has to be taken in distinguishing between what is actually in the Bill as it stands and what is not. In particular, the NHS document on the ICS design framework came out in July. Is anything in that document to be regarded as interpretation of the Bill? Perhaps more pertinently, is anything in the design framework ruled out by the Bill or inconsistent with it? There is a huge contradiction in all this. Many actions have already been taken, such as fixing boundaries and appointing chairs, that presume that this Committee does not have a say—that this Committee is not going to change anything. That is almost contempt of Parliament, but we are where we are. No doubt the Minister will be able to justify why he feels it necessary to instruct the NHS to get on with these things before legislation has been passed. To be fair to him, that is what they have been doing for the past five years as they have been trying to avoid Lansley, but we are in a different world now.

For us, the most significant issues are ICB composition, ICB constitutions generally, and the vexed issue of what people on an ICB actually take responsibility for. In each of those areas, we have tabled specific amendments. As we know, ICBs are the latest in a long line of commissioning models: we have had GPs, PCGs, PCTs, larger PCTs, cluster PCTs, CCGs, merged CCGs, and now ICBs. Just maybe, if we do not get this right first time—if we have to keep reinventing the wheel—the problem here is that it is always the NHS making decisions about itself. Various retrospectives have shown that CCGs and PCTs have had virtually no impact on the design of services, or in terms of innovation or better allocation of resources based on need, and it is certainly difficult to show that they have had much impact on outputs. It is worth pointing out that in some cases, these ICBs will be allocating billions of pounds of public money—in theory, at least—so when we are talking about a multi-billion-pound venture, it has to be free of vested interests. It has to be open and transparent in a way that, I am afraid to say, has not been a hallmark of the Department in recent years.

We know that many of the NHS witnesses said in their evidence that they did not want more prescription. As we have already touched on, we are probably going to have some debate about where on the spectrum we land in terms of prescription, with one end being a totally prescriptive environment and the other being a totally permissive one. As it stands, the Bill is too close to the permissive end, in this area at least; as I have already said, we do get some prescription when it suits the Department in other areas. We consider that prescription is not an imposition: it is a vital safeguard to make sure that things are done correctly, and that there is proper accountability of roles and positions. Legislating for the removal of conflicts of interest to ensure that these bodies are more representative and accountable is not a frivolous or minor matter. These are not optional matters: they are fundamental in a democratic society. We should take this opportunity to widen public and patient involvement and end what is increasingly looking like a much more internal model than perhaps was envisaged when the White Paper came out—a pattern, I have to say, that is possibly being set from the top.

In our view, each ICB should have an elected chair so we are going to push amendment 31 to a vote, because we believe it is a really important principle that we should be exploring further. There are two justifications for that, the first of which is negative: we simply do not trust those who make these appointments. We have seen far too many family members and friends appointed within the wider NHS who, it would be fair to say, have not come with CVs that obviously lend themselves to being part of the NHS family. In fact, the NHS has already announced who the chairs will be for two thirds of these ICSs, showing a complete disregard for the work of this Committee, particularly when it was decided that councillors did not even need to apply. There are a number of former councillors on this Committee, not least myself, the shadow Minister, and the Minister himself. Perhaps we might not be the best people to judge who could go on those bodies as chairs, but I certainly think that councillors have a legitimate claim to be suitable people in a number of circumstances. We need to take control of this; we need to have a democratic system.

The positive argument for electing someone is that it signifies that there is some accountability. It also speaks to a trend that we want to see continue moving forward, improving genuine representation of the public and of patients. We have elected police and crime commissioners, and we increasingly see Mayors and other elected figureheads having growing powers over services in defined geographies. We have already touched on how ICSs may not mean much to people in the street, but if there is someone at the top who has been elected by the people of an area, that gives everyone a sense of ownership and identity—there is a tangible body there that they have some stake in.

Let us take the example of Cheshire again, as it is the one I am familiar with. The annual budget for the police authority is in the region of £200 million. We of course do not have sight of the equivalent for the ICS at the moment, but let us say it will be significantly more. Cheshire CCG’s budget is about six times that at the moment, and we have to throw in the whole of Merseyside on top. To my mind, we will have a rather unsatisfactory situation where someone is directly elected to represent our interests in police and crime, but no equivalent in health, where billions and billions more is spent.

We recognise that this is a departure from what has been worked on in the NHS to date, which is why the amendment would allow for a period of two years from the initial ICB appointment to enable the Government and probably the Minister to work through the detail of how elections would work, and the precise role and powers of a democratically elected chair.

As a country, we are being told constantly that we are taking back control. That should be put into practice. Local communities should be given a real say in who runs their health services. Throughout the evidence sessions, it was far from clear with which individual the buck stops.

Amendments 50, 51 and 52 reflect our concerns about the frankly arrogant way that the membership of ICBs has been formed to date. If we do not get our wish for a directly elected chair, we still think there is a clear need for more local accountability for the appointment and removal of ICB chairs. As the Bill stands, there is a danger that the chairs are answerable only to the Secretary of State—not to the partnership, not to the community and not to the patients.

Why does the Secretary of State need to approve the chair? Is the chair there to represent the Secretary of State or to represent the ICB? As we have already covered, there is a less than glorious record on appointments by the Secretary of State. Let us take him out of the equation and ensure, as amendment 51 would do, that members of the board are consulted and their views taken into account before any chairs are appointed. After all, we would not want them to be appointed and then not have the confidence of the other board members. One of the questions that is hanging in the air is what would happen in the situation where the chair does not have the confidence of the board. There does not seem to be any clear mechanism for dealing with that situation, which we hope would not be a regular occurrence.

We could have the absurd situation where all those who work with the chair on a daily basis simply did not think that the chair was leading the organisation as they should, but because the chair retained the confidence of the Secretary of State—someone who might meet the chair once a year, if they were lucky—they remain in post. I think we can all see that that would be a very unsatisfactory situation. What does the Minister say should happen in that scenario? What would happen if members of an ICB or ICP clearly object to the appointment of a chief executive? If the Minister does not have an answer to those questions, perhaps he could support our amendments, although I may be tempting fate in even suggesting that.

Will the Minister at least set out what role his Department will have in such situations? What does he define as failure for an ICS? In what circumstances would NHS England terminate the appointment of a chief executive? How will removing the chief executive lead to improvements if, for example, the reason for “failure” is systemic issues around workforce and funding, which we will be coming on to later on? Let us make sure that the system works properly from the outset and that the leaders in it have the confidence of all those who work within it.

--- Later in debate ---

[Justin Madders]

We have had an interesting debate, and I think we have seen the stark differences in approach. Certainly, Labour colleagues see the proposal as an obvious thing to do. As my hon. Friend the Member for Bristol South said, the NHS will account for about 40% of all Government expenditure, so it seems obvious to want some kind of accountability for how it is spent on a local basis. The Government have decided to split the NHS up into 42 areas, so this seems an obvious thing to do, but I appreciate that the Minister comes at this from a completely different perspective. It might say something about the culture of the NHS and perhaps the insularity in how it does things.

When the Minister talked about not being here in two years’ time, he was of course referring to the inevitable promotion that he is due. Perhaps he will be promoted to the Home Office, in which case he will be dealing with police and crime commissioners. Perhaps at that point he will be persuaded of the benefit of having locally elected individuals responsible for services. Of course, we did not have police and crime commissioners until the coalition Government decided to import them from America, and although there is certainly a degree of scepticism about them, if they are a good thing for policing, I see no reason why the NHS should not embark on a similar route.

I envisage some tension between those who sit on an ICB who have some democratic mandate, perhaps from the local authority, and those who do not. Would they be seen to have greater legitimacy? Would their vote carry more weight than other ICB members, because it could be argued that, in the eyes of the public, it would? I think that we are storing up problems for further down the line. If we are to see this levelling up—this renaissance of place—in towns and cities up and down the country, we will need a focal point in all our public services, and none is more important than health and social care.

The Minister suggested that those involved in NHS England might not be appointing people in the most straightforward manner. I was certainly not implying that in my comments, because, as he conceded—this makes me wonder why he is not prepared to support amendment 50—all these appointments still require the approval of the Secretary of State. That is the bottom line. If that is not necessary and the Minister has full confidence in NHS England to make the right appointments, we do not need the Secretary of State’s approval, so the Minister can support amendment 50.

Turning back to amendment 31, which I will press to a vote, we think that a focal point of local accountability is vital. When something goes wrong, when decisions are made that people are unhappy about, or when people just want answers, they need a figurehead that they can go to. They need someone they can hold to account at the ballot box, as is our democratic tradition in this country. I do not think that they will get that with ICBs. If the Minister does not support the amendment, I really think this will be a missed opportunity, and I hope that in future years he will think again on this point.

Question put, That the amendment be made.

--- Later in debate ---

[Edward Argar]

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

[Justin Madders]

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

[Edward Argar]

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

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

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

[Justin Madders]

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

[Edward Argar]

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

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

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

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

--- Later in debate ---

[Justin Madders]

I would like to speak to amendment 33, which is grouped with amendment 30. I will try to address the real concerns that were so eloquently described by the British Medical Association. It said that there are huge risks and absolutely no benefits from having out and out private companies sitting on integrated care boards. Nothing in the Bill remedies that conflict to allow those companies to sit on integrated care boards at the same as allowing them to comply with their statutory duty to their shareholders in manner that anyone could feel comfortable about.

We know that spending in the private sector before the pandemic in 2019-20 was £9.7 billion. I accept that those figures before the pandemic are probably the fairest to cite, but that sum is still double what it was a decade earlier under the last Labour Government. We have seen the creep from the private sector in recent years and we need to put an end to that.

Amendment 33 is not about the amount spent on private providers but about who runs the NHS, not just who profits from it. For us, there is a complete and utter incompatibility between the aim of a private company and what we say should be the aims of the NHS and ICBs. I can do no better than refer to the evidence of Dr Chaand Nagpaul, who last week said:

“We forget at our peril the added value, the accountability, the loyalty and the good will that the NHS provides. We really do.

We only have to look back at the last year. Compare the vaccination programme run by the NHS and delivered by NHS staff to Test and Trace. Even with Test and Trace, compare the £400 million that Public Health England had to the billions that went to the private sector, and local public health teams reached 97% of contacts compared to 60% for the others. I am saying that it does matter. Your local acute trust is not there on a 10-year contract, willing to walk away after two years. It is there for your population; it cannot walk away.” ––[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 90, Q113.]

Those final words sum up our concerns perfectly. Put a company on the board and their interests last as long as their contract. Of course, their interests may not be the same as the NHS’s during that period anyway. With that clear and, we believe, unanswerable concern about conflicts of interest there must be a solution in the Bill. As it stands, there is not, and that is what amendment 33 seeks to remedy. We hope that the Minister recognises the opportunity that this presents and goes one step beyond his colleague, Lord Bethell, who said in response to a written question:

“We do not expect independent providers to have seats on the ICB.”—[Official Report, House of Lords, 18 August 2021; Vol. 814, c. 56.]

What he expects and what is actually in the legislation is not the same.

We have already seen in the south-west private providers lining themselves up to have a big say in how local NHS systems are run. If it is the Government’s position that they do not expect private companies to sit on the board, do they say that because they do not believe it will happen, or because they do not want it to happen? If they do not want that to happen, they should support the amendment. If they do not support it, and if they refuse to join us in trying to legislate to stop private companies getting involved in the running of the NHS, all the people who believed that the Government were determined to increase private sector involvement in the NHS will be entitled to say, “We must be right.”

When presented with the opportunity to put a halt to further private involvement, not only did the Government not support the proposals from Labour, but they actively voted against them. All the words about what the Government expect will count for nothing because when it comes to the crunch, the Government will have sided with the private companies, some of which, let us not forget, have actually sued the NHS when they have not got their own way. Is that the kind of collaboration and integration that we want to see in ICBs? Remember when Circle walked away from Hinchingbrooke because the contract was too tough. Was that in the spirit of joint working? No, it was not. We should be absolutely clear in this Committee and support the amendment that says that private companies should not be running or having a say in the running of ICBs.

[The Chair]

I suspend the sitting until after the Division.

--- Later in debate ---

[The Chair]

We now come to amendment 33 to schedule 2, which has just been debated. Justin Madders, do you wish to move the amendment formally?

[Justin Madders]

In the light of the Minister’s concessions, we wait with interest to see what we can work together on to achieve the aim that appears to be shared across the Committee, so we will not move amendment 33.

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