Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I offer the support of the Green group for all the amendments in this group. My name is attached to Amendments 51 and 87 and it would have been attached to others had there been space. I can only commend the noble Baronesses, Lady Meacher, Lady Tyler of Enfield and Lady Finlay of Llandaff, for identifying a serious lacuna in the Bill and for providing practical, careful and sensible solutions to that.

The noble Baroness, Lady Finlay, said that the Bill was “by adults for adults”. The other amendments in the group address only half that phrase. It addresses the “for adults” part but not the “by adults” part, which is what my Amendment 103A aims to address. Young people are experts in being young people. We may think about the life experiences of a 12 year-old or an 18 year-old, but none of us really knows what it is like to be 12 or 18 at this moment. A phrase often used particularly by marginalised groups is “Nothing about us without us”—given the hour, I will spare noble Lords the Latin version.

Young people are undoubtedly a marginalised group in our society in that their voice is far too rarely heard. As I have reflected previously, they are hugely underrepresented in this place and in the other place. The under-18s do not have the vote. The under-25s in the voting population, for structural reasons that could be fixed but have not been, do not have the same kind of voice.

I entirely accept that, among paediatricians and social workers, there are many older people who have much expert knowledge, but it is crucial that we actually hear. My amendment seeks to address ICBs and sets out that, in statute, there should be an advisory board consisting of young people on every ICB. I believe that this is an important addition to ensure that young people’s voices are heard. It might be said that many ICBs may set up such a structure, but that is not the same as it being statutory, ensured in the Bill with a message from Parliament saying, “You have to listen to these young people’s voices”.

I doubt that I need to address this in detail, particularly with the occupancy of the Chamber for this group, but I want to mention the Children’s Society’s Good Childhood Report 2021, which looked at 10 to 17 year-olds. Among them, one in 15 were unhappy with their lives—the highest level in a decade. We know that children who are unhappy at the age of 14 are significantly more likely to display symptoms of mental ill health, to self-harm or, sadly, to attempt to take their own life by the time they are 17.

As the report makes clear, the pandemic is only part of this story. There is a climate emergency and a pervasive fear about the future that young people have lived their entire lives through. We are talking about people whose whole life experience, virtually, has been since the financial crash. One thing that we know addresses a sense of powerlessness, with all its negative effects on mental and physical health, is giving people a sense of empowerment—that is, a sense that they can take control of their lives, make choices and make a difference. I often see this with young climate strikers.

I believe that the measure proposed by my Amendment 103A would ensure that this group of amendments collectively addresses the two sides of the problem that the noble Baroness, Lady Finlay, identified. I want to take this forward and I invite noble Lords who are interested to talk to me about it. This should be included in the Bill. Let us hear from children and young people and make sure that ICBs listen to the children and young people they serve.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I very much agree with the noble Baroness and I support the broad thrust of these amendments. As this is my first intervention on the Bill, I should declare my interests as a board member of the GMC and the president of GS1 UK, the British Fluoridation Society and the Hospital Caterers Association. I am also a trustee of the Foundation for Liver Research.

I support Amendment 51 in the name of the noble Baroness, Lady Tyler. As she said, she, the noble Lord, Lord Bichard, who also put his name to the amendment, and I are members of the Lords Public Services Select Committee, which has just produced a report on vulnerable children. When taking evidence and listening to the arguments, it was sobering to hear that it is now estimated that the number of vulnerable children has accelerated, particularly during Covid, so that more than 1 million children are growing up with reduced life chances. Too many of them end up in our criminal justice system but, despite this, there is no government strategy to deal with vulnerable children.

The result is a lack of co-ordination both nationally and locally. Too many children fall through the gaps. Public services intervene far too late to prevent some of these children from getting into difficult circumstances. Although the amendment deals with only one aspect, it is but one aspect of a more general problem that we believe the Government need to address. The particular problem that we wish the Committee to take account of is the silo working that continues to be evident both nationally and locally, as well as the frustrating unwillingness of public bodies to share data even though it is abundantly clear from both the law and the Information Commissioner’s comments that they are perfectly able to do so.

I do not pretend that passing an amendment to the Bill will change everything overnight, but we look to the Government to be firm in their intent. It is unacceptable for public bodies, many of which have a direct relationship with government, to refuse to share information for all the miserable reasons of tribalism and managers not being willing to let go. We need to do something here.

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I hope the Minister will see the parallel here: a mandatory duty to improve is exactly what the Government want, and have committed themselves to by laying the Bill before Parliament. Therefore, it should be made clear in the statute. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Baroness, Lady Walmsley, brought us very persuasively to the point of Clause 14, which I must say I am extremely puzzled about, because it purports to set out the whole set of arrangements that have to be gone through before integrated care boards can be set up as statutory bodies. However, it appears that that has already been done.

I register a very strong protest with the Minister at the actions of NHS England in going ahead and establishing these bodies, issuing extraordinary edicts such as no local authority councillor being able to serve on an ICB. What right does a quango have to say that local authority councillors cannot be represented on ICBs? This is absolute abuse of parliamentary power, because quangos do not have the right to set out what should happen on governance issues at local level in the NHS without parliamentary endorsement.

NHS England has put out a note that says that, subject to parliamentary progress, arrangements for the new statutory bodies are to come in now, on 1 July. How can that be, when we have not even gone through the sections that deal with the composition of integrated care boards? It is quite possible that your Lordships might insist on Report that local authority councillors are members of the ICBs. That is not impossible, so what will happen? Will the Minister say that, despite what Parliament says, the ICBs will go ahead, or does it mean, as I read this legislation, that the Government have to start again?

Lots of issues will be raised in this and the next group, not least the outrageous governance issue, which says that NHS England basically appoints the chair and the chief executive officer is also at its disposal. There is no attempt locally to have a board that elects its own chair or one that is appointed independently; they are essentially place-people put in there by NHS England. These are matters that Parliament should decide. I accept that Parliament may say that it is happy to go ahead on that basis—but I strongly object to this clause. It is dishonest; it purports to go through a process from the start that says that this is how ICBs will be set up—but they have all been set up, the boundaries settled and the chairs nominated, without any proper public accountability process whatever.

I hope that, when we come to agree Clause 14, the Minister will think again and that he will issue instructions to NHS England to withdraw the letter that says that the new arrangements will come into place on 1 July. I do not understand how that can possibly be.

[Lord Davies of Brixton (Lab)]

My Lords, I speak to my Amendment 45. This is a disparate group of amendments, dealing with the issue of integrated care boards. I strongly support the comments already made. My amendment addresses another issue. There are questions about what the boards are; the issue is for whom they provide services, and how they are defined.

I have been made aware of a case that raises real questions about how this is going to develop. The case was reported in September, in the Manchester Evening News, about a woman who suffered burns while on holiday. She returned to her local urgent care centre in Rochdale and was advised that, because of long waiting times, she should go to another A&E in Bury. When she arrived there, she was told that that centre did not treat people from Rochdale, because of rules laid down by the integrated care board predecessor, which had established the rules in that part of Lancashire. She was left literally on the pavement, unable to obtain the care that she required.

That is a specific case under the existing rules, but it points out the lack of clarity in the Bill about how the integrated care boards will operate. The fear is that they will be membership bodies along the lines of health management organisations in the United States, which are responsible for providing services to members. That contrasts with the residential basis on which the NHS was based, at least up to 2012.

Proposed new Section 14Z31(4) gives the Secretary of State astounding power to set out which ICB is responsible for a particular individual’s care. I hope that the Minister will be able to provide some reassurance, but the problem with membership-based organisations is that, first, there will be cherry picking of patients and, somewhat counterintuitively, at the same time they will be competing for the less expensive patients. Without far more clarity through the Bill from the Minister, people will have reasonable fears over how these new organisations will work and how people will attain the services that they currently expect from a seamless provision of services. My amendment seeks to address the issue of it being a single service. We have these 43 ICBs, or whatever they are, but it is a single service, and patients can access services wherever it is best for them and not best for the service.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, I accept that but how can NHS England give guidance to say that no local authority councillor can be on the ICB? That is not for NHS England to say, and how can it do it prior to the Bill going through Parliament? It is for Parliament to decide these matters, not a quango.

[Lord Kamall (Con)]

I apologise to the noble Lord because I was coming to answer that point, but maybe in too long-winded a way. One issue that was clearly raised, and very strongly felt in the contributions from more than one noble Lord, was about banning councillors from sitting on boards. There is nothing in the Bill that expressly bans this. We recognise the points raised in this debate and will raise them directly with NHS England. It is not statutory guidance.

[Lord Hunt of Kings Heath (Lab)]

I am sorry but this is a very important point. They have made the appointments and are not going to start again, which of course they should, because this is an absolutely hopeless position. No one from NHS England has ever had the guts to come here to explain why they are making this decision, and who will believe it? The chair of the ICB is appointed by NHS England. They know that NHS England does not want local authority councillors on the boards. Who are they going to take notice of? They are going to take notice of NHS England. The Minister has to tell NHS England to stop sending out this ludicrous guidance and telling the NHS that the new arrangements will start from 1 July. It cannot possibly do so if we go through what is contained in Clause 14.

I sympathise with the noble Baroness, Lady Walmsley, but the fact is that we must have a three-month consultation process on the proposals. This is the problem we are in: none of this stands up because Parliament is being treated with absolute contempt by NHS England.

[Lord Kamall (Con)]

I hear the strength of feeling from the noble Lord. I will take this back to the department and discuss it with my right honourable friend the Secretary of State. I hope noble Lords are reassured by that. I may not get the perfect answer, but I will try. I understand the strength of feeling on this issue; no one can fail to do so. Let us put it this way: it was not subtle but direct. It is really important that, as the Minister here, I take this back and reflect the feeling of the House in my conversations with the Secretary of State, and his subsequent conversations with NHS England. I will take that back and look at the consultation process and the CCGs consulting all the relevant local authorities.

I understand the point made strongly by the noble Lord, Lord Scriven, that we have to be careful about prescribing in a top-down way how to work locally. I have always been a strong believer in localism and making sure that powers go down to a local level rather than being taken away. Let me again assure the noble Lords, Lord Scriven and Lord Hunt, and other noble Lords that I will take this back, because clearly there is concern. I had not appreciated the strength of that concern. At Second Reading the noble Lords, Lord Stevens and Lord Adebowale, said, “We are already doing this. It makes sense to go ahead and put it on a statutory footing”. But I have now heard the other side of the argument, and it suggests that I should go back and have a stronger conversation with, in effect, my boss—my right honourable friend the Secretary of State. I hope that gives some reassurance.

On Amendment 44, in the name of the noble Baroness, Lady Thornton, I assure your Lordships that we intend to provide as much stability of employment as possible while ICBs develop their new roles and functions. I hope that noble Lords are aware that there is already an existing commitment that staff transferring into ICBs will transfer across on their current terms and conditions in line with the NHS Terms and Conditions of Service Handbook. NHS pension rights will also be preserved. As a result, staff transferring into ICBs will not see any change to their existing conditions.

However, the Government are concerned about forcing ICBs to adopt conditions and practices that the ICBs do not believe work best for new staff. We believe that it is important to give ICBs flexibilities relating to staff terms and conditions; they are there for a reason. For example, when it is difficult to recruit and staff are going elsewhere, this would include allowing ICBs the flexibility to diverge from collectively agreed pay scales in order to attract staff from elsewhere or with unusual or valuable skills, or to reflect local circumstances. It will also give ICBs the flexibility to support joint working and bring in staff currently working in local authorities or foundation trusts, for example, supporting integration and the joint working approach that the Bill hopes to encourage.

I also note that ICBs having the independence and flexibility to choose whether to adopt collectively agreed pay conditions and pensions for new staff is not unique, as the noble Baroness, Lady Thornton, acknowledged. NHS foundation trusts, which are already free to exercise their discretion in adopting such conditions, overwhelmingly choose to honour and apply such terms to their staff unless there are good reasons to diverge.

On the proposals for very senior managers, existing procedures are in place to ensure that the most senior staff within the NHS are appointed with fair and equitable salaries. Proposals to pay very senior staff more than £150,000 must be similar to those for other equivalent roles or be subject to ministerial oversight.

The Government are in the process of finalising the procedures that will apply for ICBs. The specifics may differ but the effect and intention will be the same: to afford ICBs agency in setting pay at competitive rates so that we can continue to attract the most senior and experienced leaders, while putting adequate checks and balances in place to ensure appropriate use of taxpayers’ money and keep senior public sector salaries at an appropriate level. The Government believe that this amendment, which also asks for ICPs to approve annual salaries in excess of £161,000, is unnecessary. I am happy to have further conversations.

I now turn to the amendments on how the ICBs will function once established, starting with that in the name of the noble Lord, Lord Davies of Brixton, which relates to the question of treatment outside the ICB area. The new clause in question provides that NHS England must publish rules for determining the people for whom integrated care boards have responsibility. Importantly, this clause ensures that everyone in England is covered by an ICB.

We intend that the rules set by NHS England should replicate the current system for CCGs as closely as possible. This means that the ICB will be responsible for everyone who is provided with NHS primary medical services in the area—for example, anyone registered with a GP. It will also be responsible for those who are usually a resident in England and live in their area if they are not provided with NHS primary medical services in the area of another ICB.

It is important to remember that no one will be denied healthcare on the basis of where they live. We want to ensure that, under the new model, bodies that arrange NHS services—decision-making bodies—are required to protect, promote and facilitate the right of patients to make choices with respect to services or treatment. This means allowing patients to choose to be treated outside their ICB area. Choice is a long-standing right in the NHS and has been working well for some time. The Bill continues to protect and promote it. However, I am afraid that we have concerns about this amendment, as it places a requirement on providers rather than commissioners. It would not be reasonable to expect providers to provide services regardless of whether they were funded by an ICB to do so, and it is important that ICBs should be able to make decisions about with whom they contract and where they prioritise their resources.

On Amendment 53, in the name of the noble Baroness, Lady Walmsley, I hope I can assure the Committee that the Government are committed to ensuring continuous improvement in the quality of services provided to the public. As your Lordships will be aware, there is already a wider range of duties in relation to the continuous improvement of services. Clause 20 imposes on ICBs a duty as to the improvement in quality of services. Furthermore, the ICB must set out how it proposes to discharge that duty at the start of each year in its joint forward plan and explain how it discharged the duty at the end of each year in its annual report. I hope this goes some way to meeting the noble Baroness’s concerns.

Clause 16, which this amendment seeks to alter, recreates for ICBs the commissioning duties and powers currently conferred on CCGs in the NHS Act 2006. It ensures that ICBs have a legal duty to commission healthcare services for their population groups. It also recreates Section 3A of the 2006 Act, which provides the commissioning body with an additional power to commission supplementary healthcare services in addition to the services they are already required to commission. This power enables ICBs to arrange for the provision of discretionary services that may be appropriate to secure improvements in the health of the people for whom it is responsible—or improvements in the prevention, diagnosis and treatment of illness in those persons—so it is important that the clause remains as it is currently drafted.

The Bill will ensure that the existing local commissioning duties conferred by the NHS Act 2006 will transfer over to ICBs. This is set out in proposed new Section 3, which is also to be inserted by Clause 16 on page 13. I hope that the noble Baroness, Lady Walmsley, will be reassured that it rightly uses “must” rather than “may” when referring to the arranging of services. I can therefore assure the Committee that ICBs will continue to commission the services previously delivered by CCGs. That will ensure that service delivery for patients is not impacted.

Amendment 159 in the name of the noble Baroness, Lady Wheeler, touches on the important relationship between ICBs and ICPs. I remember that, when we had an earlier consultation, the Bill team had a diagram about how ICBs and ICPs would work together; It might be helpful if I ask for that to be sent to noble Lords so that all of us can have more informed conversations about the intentions of the amendments and the issues that noble Lords want to raise. I will make sure that that is done.

This amendment would add a requirement for the Secretary of State to make regulations to establish a dispute resolution procedure if an ICB fails to have regard to an assessment of needs, an integrated care strategy or a joint local health and well-being strategy in respect of the ICB’s area. The Bill was introduced to ensure that existing collaboration and partnership, working across the NHS, local authorities and other partners, is built on and strengthened; I recognise the concerns raised by the noble Lord, Lord Scriven.

We intend for these assessments and strategies to be a central part of the decision-making process of ICBs and local authorities. That is why we are extending an existing duty on ICBs and local authorities to have regard to relevant local assessments and strategies. The ICB and local authorities will be directly involved in the production of these strategies and assessments through their involvement with both the ICP and health and well-being boards at place—that is, at a more geographical level. As a result, they have a clear interest in the smooth working of the ICP.

More widely, there are several mechanisms to ensure that ICBs and local authorities will have regard and not intentionally disregard the assessments and strategies being developed at place in their areas. First, health and well-being boards have the right to be consulted.

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Moved by

[Lord Hunt of Kings Heath]

25: Clause 14, page 11, line 20, at end insert—
“ NHS Appointments Commission (1) There is to be a body corporate known as the NHS Appointments Commission.(2) The NHS Appointments Commission has the function of—(a) appointing the Chair and ordinary members of integrated care boards;(b) other duties as set out in regulations under subsection (3).(3) The Secretary of State must by regulations provide for—(a) the establishment and constitution of the board of the Commission;(b) the financing of the Commission;(c) the duties of the Commission.(4) The Commission must prepare and submit an annual report of its activities to Parliament.”Member’s explanatory statement
The amendment would provide for an independent commission to have responsibility for the appointment of the chair and ordinary members of integrated care boards.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, in moving Amendment 25, I will speak to other amendments in this group, which follows on from the previous group and the last comments made by the noble Baroness, Lady Walmsley. On day two in Committee, we had an interesting discussion about the composition of integrated care boards. My noble friend Lady Thornton and other noble Lords argued for specifying in some detail the composition of ICBs, including having representation from mental health trusts, public health, staff and the patient’s voice.

Equally, the noble Lord, Lord Mawson, discussed the problems that arise when members on committees are seen to represent what he called “other agendas”. The noble Baroness, Lady Harding, was supportive of that view, although she argued that

“we should think more about what we want the integrated care boards to do”.—[Official Report, 13/1/22; col. 1303.]

and how we will measure this, rather than exactly who is on them. I see the force of that argument; I for one am pretty uncertain about what exactly these integrated care boards are all about.

The noble Lord, Lord Hunt of Wirral, went to the heart of this when he raised an issue that has troubled me right from the beginning: the provision that NHS trusts and foundation trusts are to be members of the integrated care boards. As he said:

“Organisations that provide the bulk of NHS services”


are therefore brought into the work of commissioning. The current system is one where commissioners—CCGs—hold providers to account

“objectively determining whether they are best placed to provide a service and assessing their performance”

and, as he said, the question then arises as to how the new integrated care boards can

“continue to perform that role.”

He felt that the membership of provider appointees on those boards at least created a risk of

“a conflict of interest between the roles of those individuals on the board and any roles they may hold with provider organisations”.—[Official Report, 13/1/22; col. 1297.]

In response, the Minister said that

“each ICB must make arrangements on managing the conflict of interest and potential conflicts of interest, such that they do not and do not appear to affect the integrity of the board’s decision-making processes. Furthermore”—

this is a very relevant point—

“each appointee to the ICB is expected to act in the interests of the ICB. They are not delegates of their organisations, but are there to contribute their experience and expertise for the effective running of the ICB”.—[Official Report, 13/1/22; col. 1308.]

Up to a point, Lord Copper. I am now totally confused as to what ICBs are. I must admit that I thought that reason for having all the key local players around the table was to brokerage deals, sort out the flows of money and keep the show on the road, but the Minister’s vision seems to be for a rather more rarefied forum, where members of the ICBs have to leave their interests behind them and think Olympian thoughts in the interests of the greater good. However, when you think of an ICB, with members of a major trust sitting around the table, and local authorities represented not by their political leadership but by officers, how on earth can they leave their principal interests behind them? Surely the responsibility of the CEO of a trust or presumably of a local authority or the director of adult social care is to represent the interests of the organisations on that board.

I will give a couple of examples. On page 21, the Bill states in relation to new Section 14Z50 on the joint forward plans for an integrated care board and its partners that

“an integrated care board and its partner NHS trusts and NHS foundation trusts must prepare a plan setting out how they propose to exercise their functions in the next five years.”

That is fine, because that is probably one of the most important things that they have to do, but what are the trusts’ chief executives on the ICB expected to do? Are they expected to sit there and declare that it is a conflict of interests and therefore take no part in the discussion, or are they there to represent the interests of their trust, because the forward plan is very important to the success or otherwise of their organisation? It would be the same with the local authority representative, even though that representative, because they are an officer, will have to report back all the time to their political leaders to get the green light to what they have to agree to within the ICB board, which is why it is so stupid to keep local authority councillors off that board.

The Minister says, “Oh well, if it all goes wrong, we can use regulation powers to put it right”. But we are at the beginning of this process, and we need to get it right now. I very much ask the Minister to think again about the structure of ICBs and how on earth you can expect them to operate if the large trusts that they are supposed to commission serve round the table. It is really a nonsense in governance terms. Only NHS managers could have come up with this—and, oh dear, it was NHS managers who came up with it. Much though I love them and have represented their interests, I agree with the noble Lord, Lord Scriven, that accountability and democracy do not come very easily to them, and you can see that in the complete mess that we see before us today.

We then come to the question of whether these ICBs are accountable at all locally. I see no evidence of that at all; they are clearly part of a top-down managed hierarchy. How can you explain the reasons for the chair being appointed by NHS England and not by the board itself? How can the chair be removed from office only by NHS England? The chair should hold office at the confidence of the board. It should be the board that decides whether the chair is competent to continue, subject to external regulatory interventions, as of now, where that is necessary.

Secondly, why does the appointment of the ICB members have to be approved by the ICB chair? I am sorry that the noble Lord, Lord Scriven, is not here. If I, as leader of Birmingham City Council, for instance, decided that my director of adult social care should go on to the board of the Birmingham and Solihull ICB, what right does the chair have to give their approval or not to that appointment?

We have already discussed the nonsense of local authority councillors being left off, but let me just make one other point. If you were the chief executive of the local authority appointed to an ICB, where you are making big decisions about finance, does the Minister imagine that that officer will do it off their own bat, or does he think that every step of the way they will report back to the leader of the council and the cabinet member for social care? Of course they will.

The problem is that NHS managers think local government is run in the way the NHS is run; they think the officers are in charge. But they are not, because you have political, democratic leadership. It is the same with Ministers in government, which it seems is why they have got themselves into such a mess in relation to this governance.