Health and Care Bill

Lord Davies of Brixton Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 11th January 2022 Lords Chamber

[Lord Davies of Brixton (Lab)]

My Lords, I shall speak to my Amendment 21, and I support the other amendments in this group. Before I reach the meat of my remarks, it seems a long time ago, but two hours ago we were discussing mental health. I did not intervene in that debate, although the issue is very close to my heart. I totally support everything that was said in that debate, but I was gearing myself up for this contribution, not knowing that I would have a two-hour interlude.

This Bill in general is not the answer to the immediate and long-term crisis in the NHS and social care sector, but the particular concern I raise through my amendment is the widespread fear that the new arrangements being proposed will lead to the growth of the private provision of healthcare, with multi-million-pound private sector service contracts leading to the loss of the public service ethos of the NHS. I have no doubt that the Minister is well aware of these concerns. It is no secret; they have been widely discussed in the columns of the national press and professional journals. For example, Jan Shortt, the general secretary of the National Pensioners Convention, has said:

“This Bill truly represents a creeping backdoor privatisation of health care services, which despite government claims, will badly impact on the patient care across the UK.”


So I do not think that there is any question that these concerns exist.

The Government have promised that there are no plans to privatise the National Health Service, but that is quite different and distinct from the privatisation of healthcare services, shown specifically, or most starkly, by the increasing number of US-owned private companies which already provide them for the NHS and obviously seek an expanded share of the market. It is worth noting the not sufficiently reported or commented on fact that the Chancellor of the Exchequer, Rishi Sunak, was unable to attend a meeting with our hard-pressed services sector because he was busy in discussion—according to a report in the Financial Times—with US healthcare providers when he was in California recently. The Government should not insult us by suggesting that there is not an issue here of the growth in the provision of healthcare by commercial interests.

Even with the amendments to limit private companies being represented on integrated care boards, there is absolutely nothing here to stop private companies playing a part in other ways—for instance, clearly at the sub-system level via place-based partnerships and provider collaboratives. There is this whole word salad of different ways of describing these organisations operating at that level below, for or with the integrated care boards in providing services. This is the Trojan horse that will bring private provision within the walls of our publicly provided NHS.

NHS England states clearly in guidance:

“Independent sector providers can be members of a provider collaborative, but the extent of their participation may depend on the specific form and governance arrangements and the nature of a particular decision being taken by the collaborative.”


Dig through these words and they mean that we just do not know what arrangements will actually be established in this new world of provision. Guidance from NHS England also states:

“The Health and Care Bill, if enacted, will enable ICBs to delegate functions to providers including, for example, devolving budgets to provider collaboratives.”


It is this uncertain nature of the exact administrative arrangements that will apply under the new scheme that leads to the level of concern. As place-based partnerships and provider collaboratives are allowed to include private companies, the Government’s rhetoric about protecting the independence of ICBs is hollow. For all the talk from the Minister in the House of Commons of recognising that

“the involvement of the private sector, in all its forms, in ICBs is a matter of significant concern to Members in the House”—[Official Report, Commons, Health and Care Bill Committee, 14/9/21; col. 258.]

the Government have not taken the action needed to stop private companies exerting excessive influence in decision-making in the health service.

The defence against such developments will be in the hands of the ICBs, hence the concerns expressed today about their membership. This is the Minister’s opportunity to assure me, your Lordships and the many bodies outside this House which have expressed concerns that our concerns are misplaced. Simply dismissing them will not work. I note the remarks of my noble friend and maybe my amendment is not the best way of achieving my objective of getting the Government to put boundaries on commercial development within the health service, but I hope that the point of principle will be addressed and will not hide behind the limitations of my amendment.

[Lord Lansley (Con)]

My Lords, I would like to intervene on this group, in particular to support Amendment 19. I am grateful to the noble Lord, Lord Sharkey, and the noble Baroness, Lady Wheeler, for tabling it. As the noble Lord said, it gives us an opportunity to probe the arrangements for the commissioning of specialised services in the future. I hope my noble friend will be able to clarify that tonight and perhaps add further clarity as we go on.

I want to talk about this because I remember that a decade or more ago, even though the NHS was a single organisation with a single responsibility for specialised commissioning, most of this was in fact delegated to strategic health authorities. My experience was that, with the separate budgetary responsibilities of strategic health authorities and their ability to commission those services themselves, we ended up with considerable disparities and inconsistencies in the commissioning of specialised services. We know this must be the case because, after NHS England took over the responsibility in 2013, one of its most challenging tasks, not least in financial terms, was to secure a common specification and common service standards. The objective was of course not to level down, but level up, in the finest traditions of the present Government, and that levelling up was expensive. As we will all discover as time goes on, levelling up is expensive by nature. It was challenging to NHS England at a point when resources were highly constrained.

That having been achieved, we are all very clear that we do not want to go back to the bad old days but—I thought the noble Lord, Lord Sharkey, was very fair about this—there is a counterargument. Many patients, even if they have a less common condition, actually receive much of their healthcare locally, from local providers through local commissioning arrangements. They need to be integrated, and things such as access to chemotherapy for common cancers or diagnostics through the community diagnostic centres, as they are created, may be more appropriately commissioned for those patients by a local integrated care board rather than NHS England directly.

However, as the noble Lord, Lord Sharkey, referred to, there is the principle of setting commissioning at appropriate population levels. As I know from experience, the NHS can consume endless time and energy trying to work out the geography of these things and what population is right for what purpose. If nothing else, even if they multiply the tiers from place-based to ICSs to regional teams to NHS England, the present arrangements at least give specialised services a chance to be commissioned and led at an appropriate population level. For many specialised services, that is not at the level of an integrated care board, as the population may be too small for them.

We know that highly specialised services will be retained by NHS England. If some services that need to be integrated locally, for the benefit of patients, are with the ICSs, there is none the less a question, about which we need to hear more, on the extent to which NHS England will manage the commissioning by using regional teams to try to maintain national specifications and service standards through their own responsibilities.

An opportunity that has not been referred to and is not in the Bill, but may be useful in practice, is to learn from the experience and, I hope, capability of the specialised commissioning team at NHS England and have a specialised commissioning support unit. It could stand behind the regional teams or even the ICSs, if appropriate, to help them have the capability to commission effectively. Amendment 19 asks the right question: this responsibility should not be delegated to individual integrated care boards unless NHS England is clear that the capability subsists at that level. We have to accept at the start that it probably does not.

I referred earlier to outcomes which, for providers in the NHS, are often at their highest in specialist hospitals. We have a dozen or more specialist hospitals, of which the majority of services—up to 80% in one or more cases—are commissioned as specialised services. We want them to have a more coherent structure of commission; we do not want them to have dozens of contracts with integrated care boards, all over the country. I hope that NHS England, in the regime that puts commissioners and providers close to one another, at least looks out for specialist hospitals and says, “We should have a lead commissioner of these services”. It may well be that the lead commissioner is in NHS England and sets up the contract there.

My final point is on the very reasonable question asked by the noble Lord, Lord Sharkey, about budgets. Why were strategic health authorities differentiating in the way they did? Their budgets forced them into different decisions in different places and, over time, that increased the degree of divergence and inconsistency. The same will happen with ICSs, unless some very clear countermeasures are taken. They could be ring-fenced budgets or some other such mechanism, but the budgets might have to be held not locally but centrally, even if some of the functions are delegated more locally. We have to be aware that, when you start to shift and delegate budgets, it is very hard then to maintain national service standards. That should be done only when it is very clear that the safeguards are in place. I hope we can use the debates on the Bill as a mechanism to give those who rely on specialist services and the providers of them greater clarity and assurance about how they will go about that in the future.