Health and Social Care Bill

Lord Beecham Excerpts

Wednesday 29th February 2012 Lords Chamber

Moved by

[Lord Beecham]

162A: After Clause 59, line 3, leave out from “be” to end of line 4 and insert “established as a Special Health Authority”

[Lord Beecham]

My Lords, as the noble Baroness might have said, but did not quite, Public Health England has been conjured out of the ether rather than having been approached in the way one might normally have expected as regards a subject to be included in the Bill. The body constitutes a significant change of policy and direction which ought to have brought before us by the Government and not left to the noble Baroness and others to raise as a consequence of their failure to do so.

It is instructive to look at the comparison between the executive agency model which the Government have chosen to adopt and the special health authority model to which my amendment refers. I say immediately that I agree entirely with the noble Baroness’s analysis of the situation as it will obtain under the Government’s proposals—not legislative proposals—in terms of the independence of the organisation. I share many of her doubts about other aspects, including the impact on the income which is currently derived—to the extent of, I think, £150 million a year—by the existing organisation: namely, the Public Health Agency.

The critical definition of the role of Public Health England was provided in a debate in the House of Commons by the Minister of State, Paul Burstow, who said:

“In legal terms, Public Health England and the Secretary of State are the same thing, and Public Health England will not be provided for in primary legislation”.—[Official Report, Commons, 7/9/11; col. 412.]

That set the tone of what has subsequently emerged as the Government’s policy. There are Cabinet Office guidelines on the attributes of executive agencies. They are effectively threefold. The first is that an executive agency is independently accountable within the government department. Secondly, an executive agency has to be financially viable. Thirdly, and critically, executive agencies should be,

“clearly designated units … which are responsible for undertaking the executive functions of that department, as distinct from giving policy advice”.

One would imagine that the giving of policy advice in the area of public health would be a prime function of the body charged with the responsibilities that we anticipate will fall to Public Health England. As an executive agency, it would not be in a position to offer that critical element which is so indispensable to a proper development of policy and monitoring of policy in this arena.

As to the structure of the organisation, the noble Baroness has rightly referred to the curious proposal that the chief executive will establish an advisory board. Public Health England’s Operating Model states:

“The Chief Executive will establish an advisory board to provide external challenge and expertise”.

I stress “external”. The most recent document, with the snappy title Building a People Transition Policy for Public Health England, states in terms that:

“Staff in Public Health England will be civil servants whose conduct will be governed by the Civil Service Management Code”.

It goes on to say, as the other document indicated, that there would be,

“an advisory board to provide external challenge”,

and the,

“current intention is that the chief executive will chair the board, which will”,

as the noble Baroness indicated,

“include at least three non-executive members”.

That is the model that the Government seem to prefer. However Public Health England will have a huge role. Its incorporation within the department will virtually triple the size of the department. It will have enormous responsibilities, ranging from managing disease outbreaks to running specialist reference laboratories and regional laboratories, and providing—critically—information and intelligence support in respect of, for example, cancer registries and public health observatories. These are massive responsibilities and there will be no legal or constitutional separation from ministerial control.

In this arena, as we debated and determined when we were talking about the position of directors of public health within local government, there is a critical need for independence. I am grateful to the Government for reinforcing this—it is to be seen in the arrangements made for local government. However, what is good for local government in this respect does not appear to be good for central government because that independence is patently lacking. I will allude to the position of staff as civil servants a little later.

Contrast that model of the executive agency with the position of special health authorities. They are defined as,

“health authorities that provide a health service to the whole of England”.

They are exemplified by the National Blood Authority, and,

“are independent, but can be subject to ministerial direction”.

There are 10 such bodies at the moment, including the Health Research Authority, the National Treatment Agency and the NHS Litigation Authority. Ironically, they will include the NHS Commissioning Board when it is formally constituted. The employees are public servants, not civil servants, and are not therefore subject to the Civil Service Code. That has some interesting implications.

I must refer to the recent case of Professor John Ashton of Cumbria—a distinguished director of public health who had the temerity to join 400 of his professional colleagues in writing a letter, under the auspices of the Faculty of Public Health, critical of the Government’s proposals in this area. He received a rebuke from the primary care trust that employs him. I do not know whether or not he is right, but he believes that it may have been instigated by the department. I know that the Secretary of State has indicated that he had no role in it, and the noble Earl seems also to be indicating that the department had no role. I accept that of course, if that is what is being said. However, it is interesting that the primary care trust nevertheless felt obliged to take the step of rebuking Professor Ashton and calling him to a meeting. If that is indicative of how a serving, distinguished and leading public servant in the realm of public health is treated under the present dispensation, one wonders what would happen under the regime that is being established, which will be even less accepting of the independent nature of the role of its chief officers.

The question of independence remains very much at issue. I concur with the questions raised by the noble Baroness in Committee about income-raising. We received some rather broad assurances that all would be well. Half of the Health Protection Agency’s income is raised externally—as I said, in the region of £150 million. The Government said that they would set up a mechanism to ensure that income-generation activities of the Health Protection Agency can be maintained. When the Minister replies, perhaps she can tell us how far the Government have got in developing proposals to establish that mechanism.

Finally, when we were debating this in Committee, the argument was advanced—it has also appeared in other places—that because the function is not limited to England, because there are implications for disease control and the like which cannot be confined within the national borders and potentially reach to the territories of the devolved Administrations, somehow we cannot establish it as a special health authority. That seems to me to be hardly an insuperable obstacle. Have any approaches been made to the devolved Administrations to see whether they would have any objection to there being a special health authority? I should have thought that they might prefer a special health authority, given that it would not be, as Mr Burstow, described it, simply a manifestation of the English Secretary of State. I may be wrong, but I wonder whether the Government have taken any steps to ascertain the views of the devolved Administrations. If it were not unacceptable to them, I can see no objection to creating a special health authority for that purpose.

Although I warmly endorse the thrust of the amendment moved by the noble Baroness in having an independent chair, I would go a step further to have a completely independent special health authority in place of what the Government propose. She clearly wants to discuss matters further. I hope that the Minister can give an assurance that she will take the matter away to consider it. I apprehend that it is unlikely that the noble Baroness will seek to take the opinion of a fairly empty House tonight, but there might be an opportunity at Third Reading. This is too important a matter to be left in abeyance for a decision to be reached by default.

I commend the amendment moved by the noble Baroness, but seek to extend it in the way that my amendment describes. I beg to move.

[The Deputy Speaker (Baroness Pitkeathley)]

It may be for the convenience of the House if I point out that, as Amendments 162A and 162B are amendments to Amendment 162, we have to dispose of them first and then come back to Amendment 162.

--- Later in debate ---

I give noble Lords every assurance that our proposals are designed to produce an agency that we can all be proud of. I hope that noble Lords at least understand the philosophy behind organising it in this way and trying to move public health centre stage and in the line of sight of the Secretary of State. We are firmly committed to making it a success. To that end, I, my noble friend Lord Howe and my right honourable friend the Secretary of State would be very happy to meet my noble friend Lady Cumberlege and other noble Lords to talk through these important issues in greater depth. I hope that noble Lords will accept that and not press their amendments.

[Lord Beecham]

My Lords, I thank the noble Baroness for her reply to my amendment. The noble Baroness, Lady Cumberlege, will no doubt speak in relation to hers. I am afraid that I do not find the response convincing in a number of respects. In the first place, on the status of Public Health England as an executive agency, she did not really deal with the Cabinet Office guidelines, which I remind your Lordships state that an executive agency should be a clearly designated unit responsible for undertaking executive functions of the department that established it as distinct from giving policy advice. If, as I apprehend, it is the intention that Public Health England should give policy advice, it should not be an executive agency. If on the other hand the Government’s position is that it should not give policy advice, it is a significant departure from what we have hitherto understood the role of Public Health England to be and certainly from the current arrangements. That would not be acceptable to this side and, I suspect, to other Members of your Lordships’ House.

In anticipation of the Minister’s reply, I raised the question of income. She referred to the possibility of raising income but did not set out in any detail the proposals which we had anticipated being forthcoming in light of the Government’s previous statement that they would explain clearly how the income-raising capacity of the organisation would be maintained.

[Baroness Northover]

I thought that I had said clearly that there is no point of principle preventing Public Health England applying for research funding from external national and international partners, including charities, commercial companies, the EU, DH, UK research councils et cetera. There is no reason why this new organisation should not be as eligible as the previous one to apply for that research funding.

[Lord Beecham]

That evades the question of why the Government said they would be bringing forward proposals in that respect. If it was axiomatic that revenues could be raised in that way, presumably that would have been stated at the outset.

In any event, the further point I anticipated the noble Baroness would raise relates to the devolved Administrations. She referred to the 2006 Act as if that were immutable—which, of course, it is not. If it was thought that the position of the devolved Administrations was in some way a barrier to creating the agency because of the provisions of the 2006 Act, then this legislation could have amended that Act. Again there has been no indication in response to my question about whether this issue has been discussed with the devolved Administrations. As I say, I cannot imagine there would be any disadvantage to them in establishing Public Health England as a special health authority.

I regret that the thrust of my amendment has not adequately been dealt with. In the circumstances, I cannot do more than withdraw my amendment to the noble Baroness’s amendment. I do not know whether she is content with the offer of talks. If I were in her position, I would be asking for a little more than only an offer of talks: I would be asking for some assurance that the Minister will take the matter away and consider it with a view to something happening at Third Reading. Without that assurance I fear that we will get no further forward than we are now—and that is not a satisfactory position for outside organisations such as the Faculty of Public Health, others in the professions or many Members of your Lordships’ House. However, in the circumstances, I beg leave to withdraw Amendment 162A.

Amendment 162A (to Amendment 162) withdrawn.