Assisted Dying Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Warner

Friday 16th January 2015 Lords Chamber

[Lord Warner]

My noble friend referenced me in saying that doctors were overoptimistic. What I said was that one review of evidence has found that fewer than one in four patients outlived the prognosis when their clinicians predicted survival of six months or less. I said that that research rather suggests that doctors have a tendency to be overly optimistic about how long people will live, because it shows that when people thought they had six months to live, actually a large number of them failed to get through the six-month period.

[Lord Hunt of Kings Heath]

My Lords, like the Government, the Opposition are not expressing a view on the Bill, and we have a free vote on this side of the House. I ask the Minister to help me with an interpretation of the meaning of Amendment 13, particularly in relation to the meaning of the provision that one of the registered medical practitioners has to have had the person registered with them for at least six months. Does he take that to mean that a patient has to be registered with a general practitioner for the provisions of the Bill to apply? I am assuming that when patients are under the treatment of other doctors, such as hospital doctors, they are not registered with them. This is important. If I am right—and I am expressing no view on the merits of the amendment—it would be helpful to the Committee to know from the noble Lord, Lord Carlile, what would happen in circumstances where, for reasons which have been set out by other noble Lords, a person is not registered or has been removed, sometimes forcibly removed, from the list by the GP under the arrangements that apply. It would be helpful if he could clear up that point.

Care Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Warner

Wednesday 16th October 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, as I said on Monday, the principles which underpin this Bill are widely supported, although recent revelations around deferred payments have put a considerable damper on that. We have been concerned in our debates mostly with trying to improve the Bill. A major feature of discussions has been the capacity of local authorities to do what is required, including responsibilities around assessment, providing information, preventing needs for care and support, promotion of integration, provision of information and support, direct payments, promotion of diversity and quality in the provision of services, and dealing with provider failure. Another concern has been about the amount of resources that will be available to make the Bill effective—the more so when one considers the number of self-funders who will in the end receive support as a result of the introduction of the cap.

This is done in the context of a very tight funding situation for health and care generally. The Minister will be aware of reports from both the King’s Fund and the Nuffield Trust, and, more recently, from the NHS Confederation, which talked of the problems in healthcare and of there being basically no growth in real-terms funding in the next few years, together with a big increase in demand.

This is matched, and more so, by the additional costs which it is clear will fall to local authorities to meet the extra care responsibilities that they have been given. The Explanatory Notes to the Bill are rather disarming. They state:

“Most of the costs to the public sector associated with Part 1”—

which is what we are discussing—

“arise from introducing and funding a cap on care costs and from the proposed increase to the capital threshold. These are partly offset by consequential reduction in costs of attendance allowance and disability living allowance”.

The Minister cannot be in ignorance of the widespread concern among local authorities that, in essence, the Bill places many additional financial responsibilities on local authorities for which they have little confidence they will receive proper support from the Government. Let me give one example. We know that the settlement for 2013 provided £335 million so that councils can prepare for reforms in the system of social care funding, including the introduction of a cap, and a universal offer of deferred payment agreements from April 2015—this was in the guidance issued by CLG. That money was intended to cover assessment and reviews, capital investment in systems, capacity-building in individual councils, information and advice, and introduction of deferred payments from April 2015. However, my understanding from the Local Government Association is that that £335 million was not new money; indeed, it was top-sliced from the local government settlement. So the cost associated with funding reform should be seen as a new burden and funded as such. If that is only associated with the introduction—essentially with helping local authorities prepare for the provisions in this Bill—how much more will the additional funding responsibilities be when it is actually up and running?

There is widespread concern and doubt about local authorities’ capacity to set up the infrastructure to do the job, but the funding issue is even more important. That is why my Amendment 121 suggests that the Secretary of State asks the Office for Budget Responsibility to complete a review of the funding of social care that assesses the adequacy of current public funding of these services, the proposals for the funding of provisions in this Act, the implications of the Act and its funding for the NHS over the next five years and in particular the short- and long-term costs of setting the eligibility criteria at the level set out in the regulations.

The Office for Budget Responsibility has been established and we see many uses for it. This would be a very good way of getting an impartial view of the future costs resulting from the Care Bill and of the likely consequences for local authorities and the Bill’s funding. In the spirit of harmony and consensus which has prevailed over much of our discussions, I think it would be very good if the Government agreed to do this. It would provide us with a very good foundation and also help in taking forward the Bill and in terms of local authorities’ actual ability to implement the provisions. I beg to move.

[Lord Warner]

My Lords, I want to speak to Amendment 122 in my name. This requires the Secretary of State to publish a review of the working of Part 1 and its funding before Clause 15 is brought into operation.

I have tabled this amendment because of my continuing concern that the Government are sleepwalking into the introduction of the new arrangements in this Bill without adequate funding provision and they do not really appreciate the parlous state of adult social care funding. I think my noble friend was being rather generous in his remarks. The situation is very bad. I have a cutting about the Equality and Human Rights Commission’s report into home care, published last week, in which the commission made it clear that council cuts could be affecting the human rights of older people. This is a serious situation.

People are very supportive of the basic architecture of the Dilnot and the Law Commission’s proposals enshrined in this Bill, and are very supportive of the Government bringing this Bill forward, but they simply do not believe that the funding is in place effectively to implement the Bill’s good intentions. They remain unconvinced by the Government’s assurances on funding and I think this is hardly surprising because the Government’s social care funding strategy seems almost designed to confuse. We have Eric Pickles signing up to quite swingeing cuts to local authority grants which inevitably reduces social care funding substantially. We then see Health Secretaries having to scrabble around to slip NHS cheques to local government to mitigate some of the Pickles cuts. Of course I do not want to be ungenerous to Health Secretaries, and these cheques are better than nothing, but they do not make good the shrinking base budget of adult social care that has been taking place over many years.

People like to claim and use bits of the Dilnot commission’s report that they favour and fancy. I would like to draw attention to pages 14 and 15, where we said:

“We know that the funding of social care for older people has not kept pace with that of the NHS. In the 15 years from 1994-95 to 2009-10, real spending on adult social care increased by around 70% for older people while, over the same period, real spending in the NHS has risen by almost 110%”.

We showed in this report that in the four years to 2010, demand outstripped expenditure by about 9%. We went on to say that in the future this approach to funding was going to need to change. It has changed, but not quite as we had expected or intended.

Adult social care will start the next financial year with a base budget about £3 billion lower in real terms than in 2010. So the base budget for social care is underfunded. That is where we start from. Most of the discussion that has taken place about the implementation of the Bill takes no account of the base budget deficit from which we are starting. That deficit is due only to get worse because there is another set of proposals under the DCLG settlement in Spending Review 2013 for another 2.3% cut in the budgets of local councils, which can only take even more money out of the local government budget for adult social care.

I have no doubt that the noble Earl will say much the same thing as he did in Committee about the Government’s proposal for a £3.8 billion pooled budget for 2015-16 to join up health and social care services. I welcome that. Most people welcome that. However, as the Minister acknowledged in Committee, only half of that £3.8 billion is new money, and only half of the new money will be paid upfront to local authorities as they start to implement the proposals under the scheme. The assurance that that new money will be in place takes no account of the further reduction of 2.3% that I mentioned in the spending of local councils in 2015-16.

We have a situation where the base budget is highly deficient, further cuts are coming out of local government expenditure by councils, which can only have a further impact on that base budget in 2015-16, when the new legislation is due to be implemented, and we have no guarantee that the lion’s share of that £3.8 billion pooled budget will be in the hands of councils when they start to implement the scheme. That is not a situation to fuel people outside with confidence that they will have successful implementation of the legislation.

The Government can protest as much as they like but, at the end of the day, we need public documentation —preferably, I would say, by someone as independent as the OBR, but I would even settle for the Institute for Fiscal Studies. If I cannot have that, I would settle for legislation requiring the Secretary of State to put some of that information in the public arena and before Parliament before the Bill is put into full operation. People who are to implement it and the public need far more convincing than they have received so far that all will be well financially, to give people a reasonable chance to implement this highly desirable, on the whole, well constructed Bill, successfully when the time comes.

Care Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Warner

Monday 14th October 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, this is an important subject. Clause 34 provides for deferred payment agreements and loans. In such an agreement,

“the charges or loan advanced is repaid by the adult or from their estate at a later specified date, or on the happening of a specified event, such as the sale of property. The debt is normally secured against the person’s property to ensure repayment”.

I say at once that we welcome the support to be given to such a scheme. However, I hope that the noble Earl will be able to respond to my noble friend on the point that he raised. His essential argument is that the scheme as originally recommended has been severely restricted, as indicated in paragraph 150 of the consultation, whereby a person is eligible only if other assets are less than the £23,250 limit. Can the noble Earl confirm that figure? If so, can he estimate for the House how many people he thinks are likely to want to use the scheme? The 40,000 figure seems even more mythical if people’s other assets have to be reduced to such a level. We need to clear up that important point either today or, if the Minister is unable to do so, perhaps on Third Reading.

I wish to speak now to my Amendment 63. One worry which we discussed in Committee concerns how local authorities are to run these schemes, and that worry remains. My noble friend Lord Lipsey spoke in Committee of his concerns about the creation of administrative difficulties for local authorities because each local authority would have to design and implement its own scheme. There would be a risk not only that the amount of energy which each authority had to expend would be extremely wasteful but that some very poor quality schemes could be developed. My noble friend Lord Warner, when discussing the balance of arguments between a national scheme or local schemes, said:

“The worst of all worlds would be not to take hold of this issue and leave it to a marketplace of 152 different bodies”—

in other words, local authorities—

“without much guidance or assistance with compatibility of IT and issues of that kind”.—[Official Report, 22/7/13; col. 1065.]

In Committee the noble Earl seemed a bit reluctant to accept the need for national direction in this area. The fact is that only a minority of local authorities currently operate deferred payment schemes. The local authorities’ responsibilities that we have discussed in relation to the Bill are many and extensive, and I shall not go through the list again. There is no doubt whatever that there are worries about whether local authorities really have the capacity to implement the legislation as noble Lords require. Instead of these 152 local authorities having all to develop their own deferred payment schemes, surely there is a persuasive case for a model scheme to be drawn up based on the experience of local authorities which are already operating a scheme but which are in a minority at the moment.

I have little doubt that a model scheme would save money by reducing the work that an individual local authority would have to do. The scheme would be informed by best practice and individual decisions would still be left to individual local authorities because they would be given a model scheme to which they could make adjustments. I should have thought that that would help ensure that the use of deferred payments would be developed and expanded as effectively as possible. I very much hope that the noble Earl will be able to agree to this amendment.

[Lord Warner]

My Lords, I rise again as the keeper of the Dilnot tablets on the subject of deferred payments. If we had intended that access to a deferred payment scheme was to be limited to people with assets of less than £23,000, we would have said so in our report. That was not what we intended. I commend the report to the noble Lord, and I hope the House will forgive me if I just cite a few bits of it.

I refer the noble Lord to page 41 of our report. We said:

“Evidence submitted to the Commission suggests that the availability and use of deferred payment schemes is patchy”,

and we went on to explain that. The government consultation document suggests that it will continue to be pretty patchy as well because very few people are likely to come forward for this. We said—and this was a recommendation:

“At a minimum, the Commission recommends an extension to the current deferred payment scheme so that it is a full, universal offer across the country.”

That is what we said.

The Government have given the impression in various interviews—I have gone head to head with government spokesmen about this on a number of programmes—that they were going to support an extended deferred payment scheme and that it would be pretty much similar across the country. If you had a deferred payment scheme in Cumberland, it would look remarkably like a deferred payment scheme in Cornwall. It seems that we are getting into a position where none of this will be the case. It is pretty rough on the public if the Government and their spokesmen are giving the impression that they are implementing the Dilnot recommendations on deferred payment schemes when they are palpably not doing so under the present set of proposals as I understand them.

It is not too late for the sinner to repent—the consultation period is open until later this month. However, it is necessary to revisit this in terms of what government policy is on this particular issue, both in terms of access to a deferred payment scheme and on the issue of a model scheme. The two go hand in hand. It is no good having a model scheme if it is a model scheme for a handful of cases in different parts of the country. We need a model scheme that is actually available so that people who want to cope with the issue of how they fund their care can access a deferred payment scheme. It is always a risk when you are on a committee such as the Dilnot committee that, quietly and unobtrusively, the bureaucracies will nibble away at well intentioned recommendations. Some of us have had this experience ourselves, and some of us have done a bit of nibbling as well from time to time as civil servants, so we recognise nibbling when it is going on. We are in that position here.

It is down to the Minister to start some discussions about this issue, not to leave things to the marketplace, and not to give the public impression that there is going to be a widely available deferred payments scheme when, in fact, it is going to be available only to a fairly limited number of people.

Care Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Warner

Wednesday 9th October 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I support the noble Lord, Lord Best, in relation to Amendments 15 and 23. Obviously, we welcome the government amendments to which the noble Earl, Lord Howe, will speak shortly, but it seems that the amendments tabled by the noble Lord, Lord Best, point to areas where the government amendments do not really meet the needs. Amendment 15, on making available information about housing adaptations and on specialist and accessible housing as a key requirement of a local authority’s information service, was a clear recommendation of the Joint Committee. The noble Baroness has just illustrated why making such information available is so important. It could be very helpful in terms of avoiding the need for people to receive long-term care. We should not underestimate the challenge people face when simply trying to find their way through the system. We find it complex, so how much more difficult must it be for those with little experience of the care sector and the housing system? I believe that Amendment 23 is critical to the success of the Government’s own housing amendment. It would ensure a three-way integration that would be an explicit part of a local authority’s duty to promote efficient and effective local markets for meeting care and support. It would particularly ensure that it has regard to the importance of adults’ access to suitable living accommodation.

We know that many local authorities are doing this without any prompting from the noble Lord, Lord Shipley, or my noble friend Lord Beecham. I recently came across the housing for an age-friendly city programme. It seemed to be a really good illustration of how, if a recognition of the changing needs and support of older people is at your core, and you supply a range of care and support housing options as an alternative to residential care, it makes the essential connection between, for example, managing a long-term illness and living in the right accommodation, and the importance of extra care housing schemes that enable people to live independently for longer.

I also just came across a One Housing Group initiative in Islington. It is a scheme designed for 14 people who spend a maximum of 14 days in the centre as an alternative to acute NHS admissions. It has a drop-in centre and an emergency helpline, and this crisis recovery house helps 550 people a year. It keeps 87% out of hospital admissions. It was commissioned by the health service but it shows the interconnection between housing and health.

In responding to the noble Lord, Lord Best’s amendments, I hope that the Government might be prepared to reconsider this and come back at Third Reading with further amendments.

[Lord Warner]

My Lords, I am sorry that I missed the beginning of this debate but I was with the noble Baroness, Lady Masham, listening to Sir Bruce Keogh explaining how the mess around paediatric surgery was going to be sorted out.

I lend my support to Amendments 11 and 15. I remind the House that many years ago, in the good old days, housing and health were together in the same ministry; there was a united ministry covering both health and housing. We have lost something by that separation. I think that the NHS needs to be given a push on integration, so I very much like the amendment of my noble friend. Too often the NHS forgets that it could help itself by working more closely with other interests, and it would be a timely reminder in this piece of legislation to get that message across. As the noble Lord, Lord Best, has said, we have missed many opportunities over a long period of time, to bring housing into the party as the population has aged. All it has done is increase the burden on adult social care and the NHS. It would be a missed opportunity if we did not rectify some of that now.

--- Later in debate ---

[Lord Warner]

My Lords, I will make a few remarks about three separate subjects that are covered in this group of amendments. First, I congratulate the noble Baroness, Lady Barker, on her tenacity on the subject of advocacy. I very much support what the Government are doing to try to respond to that, because it is a view that many of us across the House have had for some time. The Bill was deficient in terms of advocacy for those who need that kind of help and support.

I will make one remark in relation to my noble friend Lord Lipsey’s remarks, which we will go into a bit more under the next amendment. I remind the Government of the mis-selling of pensions and insurance in the financial services sector. They would do well to dwell on that before they eliminate the idea of some regulation. I see the argument that not all types of financial advice need a regulated financial adviser. However, some types of that advice need a regulated financial adviser. My peace offering to the Government is the following. If they thought a bit more about this, given what happened in the financial services sector, it may be possible to separate out the types of financial advice and deal with it in regulation, where we need both regulated and unregulated people. At the moment, the Government are being too broad-brush in ignoring some of the complexities, particularly around equity release and deferred payments, which may be equally as complex as any of the pensions and insurance issues that were being rather gaily sold by untrained people in the financial services sector.

I take issue with the noble Baroness, Lady Meacher, on Amendment 21, drawing on my six years as a director of social services. In the 1980s, we set up a care management system where care managers did not have to be qualified social workers. These people were putting together packages of care after an in-service training course, which enabled them to deal with some very vulnerable people with quite complex needs. It is not necessary to have a social worker. Many local authority departments over the years have developed benefits advice services that run alongside their social work colleagues, which give financial benefits advice to vulnerable people who need to be helped to find their way around the social security system. I caution the Government against not going down that path. With all due respect to the professional advice that the noble Baroness, Lady Barker, has had, qualified social workers are not necessarily very good at giving some of the advice that we are talking about.

Even more to the point, we should not divert a scarce resource such as qualified social workers into this area of activity when we do not need to. I remind the noble Earl that we are seeing, in the children’s services, a 50% increase in the number of children coming into care in a four-year period. The real need for social work skills and resources is in some of those other areas of work that local authorities have to deal with. However modest the numbers may be—and this amendment does not limit them that much—we do not need to divert scarce social work resources into this area. They need to go into some of their higher priority work, particularly in the area of children.

[Lord Hunt of Kings Heath]

My Lords, we shall come to Amendment 20, in the name of my noble friend Lord Lipsey and that of other noble Lords, including me, in a moment. However, I want to ask the noble Earl about the point raised by the noble Baroness, Lady Barker, in relation to independent advocacy. The noble Baroness raised a pertinent point about what responsibility there is on a local authority to engage with the advocate. I hope that the noble Earl will provide the House with more information. Clearly, this is a step forward, which is to be welcomed, but one needs some assurance that the advocacy system will work effectively. It would be helpful to know what the noble Earl’s department thinks might be the appropriate response of a local authority where an advocate has come to the fore.

I have a great deal of sympathy with the amendment of the noble Baroness, Lady Greengross. It is one thing to provide information support grudgingly; another to be proactive in doing so. Perhaps the noble Earl would comment in particular on Clause 4, because there is a world of difference between Clause 4(1), in which a local authority must,

“establish and maintain a service for providing people in its area with information and advice”,

and Clause 4(2), which goes on to describe what type of advice. This does not assure us that a local authority will be effective in doing so. I should be grateful if the noble Earl would explain how this will be monitored. Will the Government have a role in reviewing the effectiveness of local authorities in providing that?

If one is resident in an area where the local authority does not seem to provide an effective information and advice service, what recourse does one have? I assume that there would be judicial review and the ombudsman, but those are heavy-handed approaches and it would be helpful to know whether the Government have thought through ways in which members of the public can draw attention to failures to provide effective information and advice in some local authority areas.

That might pick up on the amendment relating to the use of professionally qualified social workers. My noble friend Lord Warner, with a great deal of experience, has suggested that even in areas where there are complex needs, a qualified social worker need not necessarily provide this support. None the less, one wants some assurance that sufficient provision for support will be given. Again, it comes back to the issue of how we will monitor the performance of local authorities.

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[Lord Warner]

My Lords, I rise to support this amendment and, particularly, to talk about the first two prongs of it. I do this partly from my experience as a member of the Dilnot commission. I remind the House what that commission said on the subject of an awareness campaign. We made only 10 recommendations, one of which was a very strong one because we had been incredibly depressed by the evidence given about people’s understanding of the present system, let alone the new one. When you have 60% of the population thinking that social care is provided by the NHS, you have a bit of a problem explaining to people how the system operates. Since they have not even mastered the existing system, you have to make a really big effort to get across some of the messages about the changes to it.

You could argue that it is a bit like Africa: if you have never had a landline and go straight to mobile phones it might be easier to make the change. Many people will not carry a lot of baggage about the existing system, but we do need to work really hard on this issue. That is why we said:

“To encourage people to plan ahead for their later life we recommend that the Government invest in an awareness campaign”—

we used the word “invest” very deliberately—

“This should inform people of the new system and the importance of planning ahead. This campaign could be linked into the wider work to encourage pension savings”.

Those three sentences were worked over very carefully and we said exactly what we meant on those issues. We said them as strongly as that because we thought that, to some extent, the success or failure of the changes encompassed in the Bill depend on that awareness campaign. I have not seen the Minister’s reply, but I have a suspicion—because I know how health Ministers get briefed—that there will be something about how this is not appropriate stuff to put in the Bill. I can see that there is some strength in that argument but if we are not to put it in the Bill then the Minister has got to start to tell us, in detail, what the Government are going to do.

The Government have had more than two years to think about this. We were made to produce a report very quickly indeed: within 12 months. It is now more than two years since it was produced and I should have thought we could expect a reasonably detailed plan from the Department of Health about how it is actually going to make the public aware. It would be nice if the Minister accepted the amendment, but if he is not going to, we need to know: where is the budgetary provision for the awareness campaign; what work has been done on the selection of people to help run the campaign; when it will start and how long it will go on for. How much are you going to pay for this? Do you accept the idea that all good awareness campaigns have some kind of follow-up arrangements? The noble Lord, Lord Sharkey, has suggested an annual survey and I would not disagree with that. As he rightly said, these surveys are, from my experience, relatively cheap to do. Given the sums of money we are talking about in the Bill, this would be a very modest thing to do and there is certainly no point in having an awareness campaign if you are not going to check up whether there has been any increase in awareness.

There is a raft of issues where we need to have some detail from the Government on what they have been doing on this recommendation for a couple of years. If we have not got a very convincing story, we have to consider putting this in the Bill, to generate some energy and action in this area.

I turn to the second prong, which we have already talked a little bit about under the previous group of amendments. I strongly support what my noble friend Lord Lipsey said, and I want to return to the issue of mis-selling. We have had some serious problems in this country about the way the public has been sold financial products and we ought to be able to learn from history over that. It is not any old Tom, Dick and Harry who can give sensible advice to people about complex financial issues. The noble Lord, Lord Deben, is right: many of these issues are complex and you need a simple system to get to the advice, but the advice is not always going to be simple.

Let me illustrate that with the sort of circumstances that families and older people may be faced with. It is fairly common that an older person is going to give up their house; their spouse has died and they will have to give up the house. The family might well want to have a conference about what they do with that house. There are several options: they could keep the house and rent it for income; they could go for equity release; they could go for deferred payments; or they could go for a point of care plan, as my noble friend said. Choosing the best thing to do from some of those options is not straightforward; it will require someone who knows their way around some of these issues and can give advice to people and their families on how to make a sensible, good decision that fits their particular circumstances. The Government have to give more consideration to this.

I accept that not every issue will be complicated and there could be some circumstances in which the financial advice does not need to be given by a regulated financial adviser. However, the Government now have to do the legwork on separating the sort of situations where regulated financial advice is needed from those where one can be more relaxed about it. If we do not give guidance of some standing and credibility to local authorities, we put them in an invidious position because they will be damned if they do and damned if they do not. They need some advice on the sorts of circumstances in which they, to discharge their obligations under the terms of this piece of legislation, can point people clearly in the direction of advice that is likely to be appropriate to that person’s circumstances.

Lastly, I wish to make a point to the noble Earl about the Secretary of State’s new obligation under government Amendment 138 to have regard to the local authority’s requirement in Clause 1 to promote well-being. The Secretary of State is now pretty much in the same position as that of the local authority when he is producing guidance and regulations. It is at least an arguable case that he would not be fulfilling that requirement unless he put in place some credible arrangements for sound financial advice being given to people and he helped the public to understand the details of the arrangements of the new scheme that the Government were implementing. I am not a lawyer, but it would be worth a punt by going to lawyers to argue that the Secretary of State would be in breach of his new obligations if he took a cavalier approach to financial advice and awareness of the new scheme.

[Lord Hunt of Kings Heath]

My Lords, I, too, support the amendment. I thank the noble Earl, Lord Howe, for giving us an assurance that this matter can be brought back at Third Reading, which is very helpful to our debate.

As several noble Lords have said, many people find dealing with financial products very complex indeed. They also find the system of social care funding to be complex. How much more complex will it be when the Dilnot provisions in the Bill are introduced? My noble friend made the point that many people misunderstand the current system. Many people think that social care is free at the point of use until they suddenly reach a situation where either they or their relatives are faced with catastrophic issues around long-term care. Even in relation to Dilnot, my noble friend Lord Lipsey pointed out in Committee that many people think there is this cap of £72,000 but, as we know, it is much more complex than that. The £72,000 cap is based on the fee that the local authority will pay for people who are not self-funded, but we know that self-funders, in essence, subsidise those who go into care that is in one way or another funded by the local authority because they meet the means-test requirements. Of course it is not free because there then have to be hotel costs, which Dilnot estimated to be about £12,000 a year. This matter is therefore very complex and many people find dealing with financial issues very difficult.

Care Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Warner

Tuesday 16th July 2013 Lords Chamber

[Lord Warner]

My Lords, I support the creative thinking of my noble friend. The truth of the matter is that we certainly did not have enough time to go into the kind of detail that he has done, which he has explained very clearly. I have to confess that we were not aware of the nursing allowance. Perhaps we should have been. If we had been, I think that we would have justified the scrapping of it by saying that that would be used to help to finance our mainstream proposals.

Also, we said in our report that we thought that the Government should look again at the personal expenses allowance. We thought that it was extremely mean. In a way, it has not kept pace with inflation over the years and it now seems a rather derisory amount. Therefore, anything that could be done to improve that without increasing the cost of public expenditure would seem to us a good idea.

I commend my noble friend for his creativity. I hope that the Government will take his amendment away and look at it seriously to see whether something can be done with it, because I think that it is an improvement on our recommendations.

[Lord Hunt of Kings Heath]

My Lords, I, too, have a great deal of sympathy for the core of my noble friend’s proposal to change the means test to increase personal allowances to support people so that they have enough money for what he described as “small treats”. Like my noble friend Lord Warner, I should be interested in the noble Earl’s response to that point.

I also sympathise with my noble friend’s second proposal to help those with modest assets by making the means test less severe. It is clear to most of us that the benefits of Dilnot will go to the better off. I think that one must be sympathetic to my noble friend’s aim of trying to spread the benefits more widely. Of course, that comes with a cost, and my noble friend’s answer to that is the proposal to abolish the nursing care allowance or to phase it out. Perhaps the term is grandparenting; I am not sure of the phrase but the Lords reform proposals come to mind—the transition.

Whether that is the right approach must of course be subject to some debate, and I would certainly need some convincing about the phasing out of the nursing care allowance. However, I think that my noble friend has done us a service and I hope that we will have further discussions on it between now and Report.

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[Lord Warner]

My Lords, I intervene on this to talk very briefly about what the Dilnot commission said on this issue. I will quote just two sentences from page 22 of our final report, which are worth putting on the record. We said very clearly:

“The state-funded care element will be based on a local authority care package, but people will be free to top up from their own resources, should they wish. If someone moved to a different local authority, they would take with them a record of their contributions to date”.

That is a very clear statement of what our policy was. When we were taking evidence, there was not a lot given to us about the extent of top-ups.

If I fast forward to my time on the Joint Select Committee with other Members of this House, the issue of top-ups seemed to have changed quite significantly between the time when the commission reported, having considered all this, and the time that the Joint Select Committee was working on it. There were not good data, other than that many of us have been increasingly learning that the top-up levels have been quite considerable in some homes. There is clearly a problem with the cross-subsidising of people who are state funded from self-funders. The issue is now complex and I do not know how good the Government’s data are on the use of top-ups. We were clear that you could count towards the cap only what the state-funded element of that payment was, which would be determined by what the local authority would pay in its area for the care being provided. If we depart from that principle, we will end up in chaos—and probably end up with a much higher public expenditure bill.

There is an issue here that the Government need to think about, but in principle we should do nothing to stop people topping up if they and their family are prepared to provide for a higher level of care. The present rules were drawn up for a different time and on top-ups, the world has moved on. We need to get this straight before we finish this Bill.

[Lord Hunt of Kings Heath]

My Lords, I, too, would welcome a debate about top-ups and the Government’s present position and response to the Dilnot proposals, as enunciated by my noble friend Lord Warner. It would also be helpful if the noble Earl could give us a little thinking about how the Government expect this to work out in practice.

We start with the fact that a local authority has to have an assessment to add to the baseline to set the clock running, so as to get to the £72,000 cap. We have already discussed transparency and the problems arising where self-funders find that they have in fact been subsidising those people funded by the local authority. I would be particularly interested to know from the noble Earl what calculations have been undertaken by his department about the impact on self-funders when responsibility is taken over by the local authority once the cap has been reached. Has any work been done on the extent to which those self-funders will be forced to move home because the local authority will not fund them at the rate that they have been self-funding, while the home itself is requiring those people to move?

My noble friend Lord Lipsey referred to the general experience—we have seen it in the health service—that when very frail elderly people are forced to move from one care setting to another their life outcomes are very poor indeed. Clearly, it would be wholly unsatisfactory if, as a result of bringing in the £72,000 cap, we had the perverse incentive of forcing a lot of movements by frail, vulnerable people that would have a deleterious effect on their health and life outcomes.

That brings us to whether removing the top-up restriction would be an appropriate response. My noble friends have put forward a persuasive case. It is important that the Government should enable the House to come to a view on these matters, having made an assessment of how the introduction of state support for self-funders who have reached the cap is going to work in practice.

Care Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Warner

Wednesday 12th June 2013 Lords Chamber

[Lord Warner]

Clearly the noble Baroness has clarified matters, but whether she has reassured me is another question. I think the Government underestimate the profile of the Chief Inspector of Hospitals in particular. There is no doubt that this will be a very powerful and important post with an enormous profile. The idea that this person can be overruled by the chief executive and the board, as this legislation sets out, poses a problem I certainly want to think more about.

I also think that there is a gap here. Community health services are not clearly in anybody’s remit. I am sure my noble friend Lord Hunt would agree that if we were to identify one black hole where there is not a great deal of data on performance and quality, it would be community health services. It is an area that has not been probed well by independent inspection, and as far as I can see the game plan is to have no inspector looking into that area. Given everybody’s concern about integration, it seems a bit of a missed opportunity for there not to be some linking up there.

I want to consider this much further. It would be helpful if Ministers sent the Committee the job description for the three inspectors they propose. In my experience, it is rather difficult to appoint anyone to anything without a job description. It would be very helpful to our deliberations to have that before Report.

[Lord Hunt of Kings Heath]

It seems to me that unless this is sorted out there will be problems in the future, notwithstanding the calibre of the current leadership of the CQC, which I readily acknowledge. If the chief inspector does not have total operational independence when acting as chief inspector, I see a recipe for potential trouble. We will not reach Report until October, so there is plenty of time. My noble friend and I would be very interested to have at least some discussion about how the CQC will avoid the kind of conflicts that clearly we would rather not have, if at all possible.

National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013

Debate between Lord Hunt of Kings Heath and Lord Warner

Wednesday 24th April 2013 Lords Chamber

[Lord Warner]

My Lords, I would like to reassure the noble Lord, Lord Clement-Jones, that I will be speaking in this debate. I oppose the Motion in my noble friend’s name. He will not be surprised by that, although I know that he hoped that I would have more pressing engagements elsewhere. I should declare my registered interest as an adviser to two companies.

I begin, briefly, with some context in which these draft regulations sit. Much of the comment and briefing that I and, I suspect, some other noble Lords have received has an underlying assumption that, somehow, competition is bad for NHS patients. It would let in what are usually described as slightly distasteful people called private providers and should be prevented at almost any cost. Much of that seems to overlook the legal procurement framework that the NHS operates within now and within which it operated when I was a Minister some years ago.

The NHS has to operate within the terms of EU competition law, with certain constraints related to clinical services. NHS bodies operate under a set of process rules in how they conduct procurements. There are regulators that patrol the territory of competition with jurisdiction in relation to the NHS, namely the Office of Fair Trading and Monitor. That is not new. It is not a nasty invention by the coalition. We can get all fanciful about it but it has been around for some time. We may not like it, we may prefer it to be different, but that is the legal context in which the NHS has had to operate for some time.

I would argue—this may be rather uncomfortable for some of my colleagues on these Benches—that this contextual framework makes any persistent attempt to make NHS providers preferred providers, irrespective of these legal constraints, profoundly anti-competitive. I believe that it is vulnerable to successful legal challenge. We got quite close to that before the 2010 election. This set of contexts in which the NHS has to operate means that we have rather a complex area for NHS commissioners to operate in. They need a clear set of rules to guide their conduct on procurement and competition, and that is provided for in Section 75 of the legislation, which we passed after a great deal of discussion and debate. That is the context in which these draft regulations are being prepared.

They are also operating in another important context, one in which the NHS itself faces enormous financial and clinical challenges over the rest of this decade. It was the Public Accounts Committee under a Labour chairman that made it very clear that virtually every NHS trust was financially and often clinically unsustainable in its present form. Change is absolutely inevitable within the NHS, whether we have these regulations or not. A massive programme of service reconfiguration awaits the NHS to meet the unavoidable fiscal, demographic and morbidity challenges it faces. In the past two months, two acute hospital trusts have gone bust, and in my view another 20 may be well on the road to the same fate. The idea that we can somehow solve these problems without an injection of new providers with some new ideas and some better management techniques is fantasy.

[Lord Hunt of Kings Heath]

I am most grateful to my noble friend for his enormously helpful speech tonight.

[Lord Warner]

There is plenty more to come.

[Lord Hunt of Kings Heath]

I am delighted and I look forward to making further interventions. My noble friend and I very much agree on the need for a massive reconfiguration of services. We have argued that this needs to be done from the centre with authority and vigour, but what does the noble Lord say to the interventions of the OFT and the competition panel into perfectly sensible reconfiguration proposals? Does he not see that that is entirely consistent with the general direction in which the Government wish to take us, whereby in essence they are saying that the integrity of the marketplace is more important than reconfiguring these services?

[Lord Warner]

I am not prepared to second-guess the OFT before it has done its inquiry into this set of arrangements. I cannot see the point of having regulatory jurisdictions such as the Office of Fair Trading and Monitor if, every time they do something some of us disapprove of, we jump in and tell them they are out of line in undertaking that kind of investigation under the legislation on competition as it stands today. I am not prepared to engage with my noble friend in a discussion about whether the OFT has behaved reasonably. I would sooner wait and see what action it takes to investigate these arrangements, and that is the position that most of us had to take when these things happened while we were Ministers sitting in the same place as the noble Earl, Lord Howe, is today. We have to be a bit more statesmanlike about some of these things.

In the UK, we seem to prefer a situation in which we bail out what are in many cases public monopolies. We seem to forget that in our sister organisation of adult social care we have had a mixed economy for nearly 30 years, and that local government has quite amiably—

National Health Service (Clinical Commissioning Groups) Regulations 2012

Debate between Lord Hunt of Kings Heath and Lord Warner

Tuesday 16th October 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I refer noble Lords to the Register of Lords’ Interests and specifically to my chairmanship of the Heart of England NHS Foundation Trust. At the core of the Government’s changes to the National Health Service are the clinical commissioning groups to which a significant part of the NHS budget is to be allocated from the next financial year.

Those clinical commissioning groups face formidable challenges. They need to be authorised and established. They take office at a time when the NHS is attempting to cope with the £20 billion Nicholson challenge. They will face major reconfiguration challenges as the health service seeks to become more efficient in the use of its services. They also will come under great pressure to encourage integration across health and social care but will face also the almost conflicting pressure of increasing the marketisation of the NHS and coping with the bringing in of competition law to a much greater extent. Whatever one’s views about the changes to the National Health Service—I am one who does not take a particularly positive view, as the noble Earl will know—what is not in doubt is that clinical commissioning groups are at the heart of those changes and that the challenge that CCGs face, as we have come to know and love them, is formidable.

These clinical commissioning groups are a curious body. They ostensibly are public bodies to be given £60 billion of public money. They also can be seen as a federation of primary care providers which are given huge financial and commissioning muscle and from which members of the primary care federation can gain considerably. Given that, and given the obvious potential conflict of interest that surrounds clinical commissioning groups, it is clear that they should have the strongest possible corporate governance and effective boards. The regulations before us are therefore of considerable importance.

As the Explanatory Memorandum points out, the regulations set out,

“requirements on CCGs in terms of their establishment and governance”,

requirements in relation to the make-up of the board and requirements in relation to,

“the initial procedure for establishing CCGs and any changes to CCG membership and geographic area thereafter”.

The statutory instrument sets out that membership must include a registered nurse, a secondary care specialist and two lay people.

As I said during our endless debates on the Health and Social Care Bill, I find the very limited lay representation to be very disappointing. It is surely contrary to all good practice in public body appointments that lay people are in such a minority on public bodies to which so much resource has been expended. I doubt that it would pass the Nolan test. I well recall the failures that we have seen in boards over the past two or three decades where it has become clear that the non-executives have failed to discharge their challenge duty. After all, that surely is one of the main lessons of mid-Staffordshire. To have only two lay people who could represent the public interest on those boards seems to me to be a vital error.

I also say to the noble Earl that he failed to respond effectively to our debates on conflict of interest. I am sure that when he seeks to defend the drafting of this statutory instrument, he will talk about conflict of interest. However, the biggest conflict of interest is the fact that GPs will be in a majority on those boards, and GPs can gain financially from the decisions of clinical commissioning groups. That is why this whole structure is flawed.

My concern about the statutory instrument—one of the most peculiarly drafted that I have ever come across—is that people with local expertise are excluded from the clinical commissioning board. Because a registered nurse or a secondary care specialist have intimate local knowledge and provide services to patients in the area of a CCG, they are not to be welcomed; they are to be excluded. That is quite a remarkable decision. For a registered nurse or a secondary care specialist to become a member of a CCG they either have to be retired and therefore completely out of date or they have to live miles away and know nothing of the local area. What a remarkably stupid decision that is. It is compounded by Schedule 4 of the regulations, which excludes a local authority member from being appointed as a lay member of a clinical commissioning group. Why? What on earth is the justification for that?

Given the issue of accountability of clinical commissioning groups, surely having an elected member of a local authority on the board of each CCG would be to the advantage of that CCG. I have yet to hear any convincing explanation as to why they are excluded. Indeed, it is so ridiculous that if you are a GP who happens to be a local councillor, you are excluded from serving on the CCG board. I have had brought to my attention the case of one GP who has been a leading light in the development of his own clinical commissioning group only to be told that he is now ineligible to become a member of the CCG board. Today I met a local authority councillor from east Cheshire who has just been appointed a lay member of a CCG, but she has now been told that because she is a local authority member she can no longer serve on the board.

There are some inconsistencies in the statutory instrument. It looks as though Members of your Lordships’ House can serve on the clinical commissioning group governing bodies, as opposed to MPs and members of local authorities. From my reading it would seem that an elected police commissioner may also serve. That seems to me a trifle inconsistent, and I would be grateful if the noble Earl could clarify that for me.

In the Explanatory Memorandum, when it comes to consultation, we are told that the proposed framework for the established governance and authorisation of clinical commissioning groups was tested with a wide range of stakeholders. Can the noble Earl say a little more about that? Who, in fact, were consulted? I had not realised until I received a briefing that the Foundation Trust Network was not consulted on the details of the regulations. We all read with great interest in Pulse magazine of 24 July that Sir David Nicholson, chief executive of the NHS, said that he was open to relaxing the restrictions that I have mentioned. Was he consulted?

Why did the department not listen to the concerns of the Royal College of Physicians, which believes that the CCG boards should always include specialist doctors who work within the area covered by a CCG in order to help the integration of services across primary and secondary care? Indeed, why did it not listen to the BMA, which feels that the regulations are restrictive and are hampering effective secondary care clinician recruitment to CCG boards? Why did it not listen to the Royal College of Nursing, which says that the guidance makes an assumption that GPs from practices in a CCG should be allowed to sit on the CCG governing body, but automatically excludes any nurses employed by any significant local provider or member in general practice? The college says that that will make it difficult to appoint nurses with the necessary skills and expertise who have sufficient knowledge of the local challenges. The Royal College of Surgeons is also concerned.

I have another concern. Again, when I read the regulations, I had not noticed that, as the Foundation Trust Network has pointed out, if you are a member of a foundation trust you are ineligible to serve on the board of a clinical commissioning group. I believe that the total membership of foundation trusts is more than 2 million. My own trust has 100,000 members in its patch, and they are all excluded from serving on the board of a clinical commissioning group. That is a bizarre decision. I really do not understand how the department could have allowed that to creep into this statutory instrument.

I believe that the regulations are badly thought out and badly constructed. Essentially they will ensure that the board of a clinical commissioning group will be bereft of members coming from the local authority, hospitals or the nursing profession who have any intimate knowledge of the patch in which they serve. I urge the noble Earl to reflect on this. It would be much better if these regulations were withdrawn and new ones brought before your Lordships’ House. I beg to move.

[Lord Warner]

My Lords, I begin by congratulating the Minister on surviving the ministerial defenestration at Richmond House over the summer. I recall that some years ago a younger Bruce Willis played the title role in the film “Last Man Standing”. I welcome the Minister to his new role as an action hero. However, today’s regulations do not live up to this star billing.

My noble friend’s Motion of Regret contains many important reservations and I wholly endorse his remarks but there are other concerns as well. I will not repeat my noble friend’s remarks on the inconsistency of the CCG membership provisions but I would like to supplement them briefly. It seems bizarre to me to allow GPs with acknowledged conflicts of interest in a CCG area to serve on the CCG, though with appropriate safeguards and sanctions for failing to acknowledge those conflicts—sanctions which we discussed extensively during the Bill’s passage through this House—but not to allow specialist doctors to do exactly the same. This seems to me not to be in the best interests of patients because it appears to be punishing expertise of a specialist nature in terms of the development of services by commissioners in a particular local area.

My second point, which I want to dwell on a little longer, concerns the issues relating to accountable officers, which to a great extent, to my reasonably tutored eye, look remarkably similar to the roles of chief executives in PCTs. Has the Minister seen the information about CCG accountable officers in the Health Service Journal of 11 October? This reveals that 72% of the emerging 211 CCGs have chosen managers and not GPs as their accountable officers. Only 22% of the accountable officers are GPs—a drop in the 38% expected as recently as March 2012. This is because the job of the accountable officer looks remarkably like the job of a PCT chief executive and simply does not appeal to GPs. As I recall, the Government, when pushing for this legislation and these reforms, made much of the fact that they wanted to see GPs in a leadership role driving clinical commissioning in a reformed NHS. We seem to have ended up with a situation in which GPs as a whole are walking away from a leadership role in commissioning. That leaves the Government’s strategy of increasing clinical involvement in commissioning services, which I wholly support, in a very weakened state. It suggests that after all the upheaval of the poorly constructed Bill, which we spent months discussing, we will end up with more than 200 CCGs replacing 150 PCTs, but still with about 150 PCT chief executive equivalents running the show within CCGs. This is a bizarre outcome from the time we spent on the Bill. Did we really labour through the Bill for many months to achieve that outcome? Can the Minister confirm that the Health Service Journal data are correct? What proportion of the £60 billion a year going to clinical commissioning groups will come under accountable officers who are not GPs or doctors?

I have a few questions about service integration and CCG mergers. The new Health Secretary seems very enthusiastic about integration of health and social care and that is a jolly good thing. Can the Minister explain how excluding local authority personnel—both members and officers, such as a director of adult services—from a CCG board can facilitate joint commissioning of health and social care and the pooling of health and social care budgets, which seems to be attracting increasing support? How will such an arrangement incentivise CCG accountable officers to use resources for adult social care from the national Commissioning Board in such a way as to save the NHS money and provide a better service to patients? Indeed, can the Minister confirm that CCG accountable officers will not be criticised if they use NHS resources wisely to purchase social care that better serves the needs of patients when appropriate?

As the Minister knows, I am deeply sceptical about the need for and viability of having more than 200 CCGs, particularly given the likely service reconfigurations needed over the rest of this decade. I am therefore pleased that there is some provision in the regulations for mergers to take place. However—there is always a “however”—the list of factors to be taken into account before a merger can proceed, in paragraph 2 of Schedule 1, is extraordinarily daunting. There is a page and a bit of factors that have to be taken into account before a CCG—which may find pretty quickly that it is unviable—can move towards merger. They do not encourage CCGs to face up to financial realities and speedily reduce their number when needs must. Should the Government not be cutting this list of factors substantially rather than providing for a slow CCG death, as Schedule 1 seems to do?

I understand that the Minister may not want to answer all these questions tonight but perhaps he could write to me on some of these issues. I certainly support my noble friend’s suggestion that these regulations should be taken back, rethought through and re-presented to Parliament.

Health and Social Care Bill

Debate between Lord Hunt of Kings Heath and Lord Warner

Monday 19th December 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl. At heart, there are two key issues here. One is the independence of NICE—I am grateful for what the noble Earl said on that. I certainly support the change in status. The reason there is some anxiety about independence is that in two parts of the Bill the NHS Commissioning Board has powers of direction over NICE. We will come on to this in relation to Clause 231 on quality standards—it applies also to Clause 236 but this is where some of the concern comes from. I am very dubious about whether quangos, to put it kindly, should have power over NICE. That is where the concern comes from and why scrutiny by the Health Select Committee of the chair would be important.

The noble Earl has reassured us that the technology appraisals will continue and that, until value-based pricing is introduced, there will be a clear understanding that NHS bodies will implement the technology appraisals. He said that it would not be appropriate for those directions to the health service to be in the Bill, but can he clarify that the current order will be amended so that instead of directions to health authorities, primary care trusts and NHS trusts in England, clinical commissioning groups will appear in the title of the order? It is quite clear that although this will be done by secondary legislation, clinical commissioning groups will be required. I take his point about the need for discretion when it comes to primary legislation, but I would like to ask him about that point.

My third point to the noble Earl is about value-based pricing. One of the joys of talking about value-based pricing is that no one understands it, and, frankly, having read all the reports and the original OXERA report, I confess that I am still rather puzzled by it. It sounds good, but I caution the Government that the PPRS has served us reasonably well. It has allowed the Government to cap the profits of the pharmaceutical industry but has given them complete discretion about the price of individual drugs—the advantage being that prices set in the UK have then been influential throughout the rest of Europe. My concern about value-based pricing is that, combined with issues around the regulation of medical health research, it makes the UK a less attractive place for the industry to invest in R&D.

My noble friend Lord Warner toured the boardrooms of New York and New Jersey, and I followed him to sweep up—

[Lord Warner]

The mess.

[Lord Hunt of Kings Heath]

—not the mess, my Lords, but my noble friend’s vigorous discussions—because of the wish to ensure that those global companies continued to invest in the UK. The problem with the Department of Health is that while it sponsors the industry, its real concern, when it comes down to it, will always be the cost of drugs to the National Health Service—hence my concern that powers of direction by the NHS Commissioning Board will not be used in a way that is conducive both to the independence of NICE and to the continued R&D spend on pharmaceuticals in this country. I do not really want to institute a debate on value-based pricing at this point, but I hope that the Government will look very carefully at its introduction and all the consequences from it. Having said that, unless the noble Earl wishes to answer the point on direction, I certainly beg leave to withdraw.

Health and Social Care Bill

Debate between Lord Hunt of Kings Heath and Lord Warner

Wednesday 30th November 2011 Lords Chamber

[Lord Warner]

In moving Amendment 159 I shall also speak to Amendments 160 and 164 in my name. I start by emphasising that this is a package of amendments that relates to many concerns that have been expressed to me and others—namely, that we need to make very sure that we ensure the assessment of competence of CCGs is sound and open before they undertake the commissioning of services that this Bill will enable them to do.

My earlier Amendment 157 enabled us to debate the number and population size of clinical commissioning groups, both of which considerations have a considerable bearing on the issue of competence of CCGs. I will not rehearse those arguments again except to emphasise that if the Government go ahead with such a large number of clinical commissioning groups, as it seems may well happen, then it is even more necessary to tighten up the Bill’s provisions on proof of competence and the ability of the National Commissioning Board to reject applications where competence is in doubt. It is for those applicants to take on the role of a clinical commissioning group to prove that they are competent to take on this task and to safeguard the public money that will be entrusted to them.

Amendment 159 makes it clear that in submitting an application to the board, the clinical commissioning group applicant must demonstrate that it can meet the requirements of commissioning competence specified by the board. If its application does not do so then the board should be able to reject it out of hand. The onus is on that group to show that it is competent to undertake the commissioning. It seems to me that clinical commissioning groups will have had plenty of time to assemble their case and to prepare for their application. The Bill should make it absolutely clear that a demonstration of competence should be mandatory in submitting an application. If I can put it crudely, we do not want to see people taking a punt. They have to be able to demonstrate that they can actually do the job, otherwise public money and safety will be put at risk.

Amendment 160 is linked to Amendment 159. It requires that when the board publishes information for applicants, that information document must specify the competencies required to commission health services. This problem of specifying competencies in commissioning has bedevilled the whole movement towards commissioning over several decades. Mark Britnell’s attempts at world-class commissioning ran into the same problem—we were not sufficiently clear about what competencies would deliver good quality health services from commissioners. So this competency issue is at the heart of making clinical commissioning groups work. It is vital that the board is left in no doubt of its responsibility for doing this and that applicants are in no doubt that the competency hurdle that they have to clear is put very clearly to them before their application can be accepted. What we do not want to see, if I may put it this way, is a load of well meaning waffle coming out of the board about commissioning. We want to have articulated the competencies that have to be met before applicants can be successful. Amendment 164 rounds the whole process off in terms of applicants showing that they can discharge clinical commissioning group functions “competently”, which is the word which it adds to the Bill.

These amendments make it clear that Parliament regards competence in commissioning as the yardstick by which the success or failure of applications to become clinical commissioning groups will be judged. This issue should be uppermost in the mind of the board when it makes decisions, and wording that makes this clear should be on the face of the Bill. Competence in commissioning has been missing in the past and we are in danger of repeating the mistakes of the past by not making it absolutely clear in this Bill what is required of the applicants to be clinical commissioning groups. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I have a number of amendments in this group. I will start with Amendment 159A which questions why, on page 9, line 36, it is possible for non-providers of primary medical services to be eligible to apply to establish a clinical commissioning group. Particularly in the light of my noble friend’s comments on Amendment 159, one would surely only want applicants who had experience of providing GP services to be able to apply to form a clinical commissioning group.

Amendment 160A requires the board, before considering an application to form a clinical commissioning group, to consult with the general public, the relevant local authority, the relevant health and wellbeing board, and patients receiving primary medical services from providers within the clinical commissioning group. The noble Lord, Lord Greaves, raised some pertinent questions about transparency in the formation of clinical commissioning groups. It is extraordinary that there seems to be no process by which putative CCGs consult with their patients before they make an application. The decision is, essentially, being made by bureaucrats within the National Health Service system—who put constraints on CCGs,—and the GPs themselves. Where on earth are the public in all of this?

Health and Social Care Bill

Debate between Lord Hunt of Kings Heath and Lord Warner

Wednesday 30th November 2011 Lords Chamber

[Lord Warner]

My Lords, I am beginning to feel sorry for the Minister. He is getting a kicking from both sides of him, left and right, and in front. I am puzzled by this amendment and the arguments being put forward, both the one by my noble friend Lord Hunt, and the one in the names of the noble Baroness, Lady Williams, and the noble Lord, Lord Marks. The reason why I am puzzled is because I keep coming back and looking at this Bill, particularly at Clauses 17 and 20. I know that the Minister did not think much of my restrictions on the number of items in the Secretary of State’s mandate under Clause 20, but let us set that aside for the moment. Let us assume that the Secretary of State does exactly what my noble friend Lord Hunt does and lays out a very large number of items, and not what David Nicholson does, listing them on one side of A4.

The beauty of the mandate is that it has to be related to money and the Secretary of State can, in certain circumstances, change the mandate. He also has considerable powers to make standing rules changes under Clause 17. So I am slightly puzzled about the set of circumstances that my noble friend and the noble Lord, Lord Marks, are making for this additional provision. I am interested to hear what the Minister says about why this additional requirement may be necessary, because of the inadequacies of the combined effects and powers of Clause 20 and Clause 17.

[Lord Hunt of Kings Heath]

Perhaps I could try to answer my noble friend. There are two reasons why this is important. First, there is a real risk that the mandate will become so large and extensive to cover the Secretary of State—who wishes to transfer responsibility to the national Commissioning Board—that we will end up with a real fudge about who is actually responsible. Secondly, there are circumstances. Until last week, I do not think that many people knew that once a trust had allowed its waiting times to go beyond 18 weeks, there was a problem with some of them taking their eye off the ball. If a patient missed the target, often he might have to wait for weeks. It is quite possible that even if the mandate is as extensive as I suggest it might be, there will be circumstances in which the Secretary of State may need to intervene. It is not the case of having time to rewrite or edit the mandate, or look at the standing rules. The Secretary of State may need to intervene on the day that an issue arises. All that I want to do—and I suspect the noble Lord, Lord Marks, also wants this—is to make sure that the Secretary of State is able to intervene in circumstances that we cannot necessarily anticipate but, knowing the health service, we suspect will arise from time to time.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, my Amendment 154 brings us to a group of amendments which consider a number of interesting points about clinical commissioning groups and their relationship with GPs, other contractor services and local authorities. They also allow us an early canter at probing exactly where the Government’s policy on clinical commissioning groups currently is.

My first Amendment 154 is partly probing, but it is also to ask why membership of a clinical commissioning group is only confined to general practitioners or, in the jargon of the Bill, providers of primary medical services. What about the other contractor professions within primary care: the dentists, the pharmacists and the ophthalmologists? What about primary and community nurses? I would not in any way seek to undermine the potential leadership role of general practitioners, but they are part of a primary care team. It is rather unfortunate that other members of the primary care team were not considered worthy of membership of a clinical commissioning group.

I must say that I have yet to hear any rational explanation as to why GPs only have been singled out for this exalted membership of a clinical commissioning group. It would have been perfectly possible to have brought all the contractor professions and, I would hope, primary care nurses, into membership of a clinical commissioning group, and then to have a governance structure which none the less recognised the pivotal role of GPs but did not exclude the other professions. One could have had a weighted voting system or some other way of reflecting that yes, GPs are clearly a very important profession in primary health care, but they are not the only one.

I am curious to know why the Government did not adapt that approach, and how they expect clinical commissioning groups to really relate to the other professions. How can they bring them on board? I think of rural clinical commissioning groups and rural dispensing, and how there can be terrible tensions between GPs who dispense in rural areas and community pharmacists in those areas. If I were a community pharmacist, I would be rather concerned that the rural clinical commissioning group is not at all going to act in the interest of community pharmacy. It is almost bound to act in the interest of rural dispensing general practitioners.

I would be interested therefore, if the noble Earl, Lord Howe, could give some further explanation as to the construct of clinical commissioning groups. I should say to him that, having talked to dentists and community pharmacists, they are really concerned that they will be excluded from the decision-making process within clinical commissioning groups, and that it will be purely GP-dominated. Some of the people most concerned, and quite rightly, are primary care nurses, whose voice should be heard. One fears that the traditional approach will be to exclude them from those discussions when they have an enormous amount of expertise to bring to the table.

Amendment 158 is a probing amendment. It relates to the areas of clinical commissioning groups and argues that clinical commissioning groups ought to be coterminous with the boundaries of a local authority or contiguous group of local authorities.

I stress to the noble Earl, Lord Howe, that this is a probe. If health and well-being boards are to work well, there clearly needs to be an integration of public health and commissioning between the various groups at local level to make sure that they come together in a cohesive plan and at interventions. It is very important that clinical commissioning group areas at least do not go over into other local authority boundaries. There is an argument for coterminosity, but of course I do accept that in some areas that would make the clinical commissioning groups far too large and that is why I stress to the noble Earl that this is a probing amendment.

In the county, non-metropolitan district areas where you still have a two-tier system, I would have thought there is some concern about the involvement of the non-metropolitan district councils in the arrangements for liaison between local government and clinical commissioning groups. While it does not strictly come within the remit of this amendment, it is a matter to which I suspect we will want to return at Report stage.

Beyond that, this is a good opportunity to ask some serious questions about clinical group commissioning. It seems to be clear that there is now increasing anxiety among GPs that the likelihood of them having significant control of commissioning is becoming remoter by the day. The noble Earl will be aware of the BMA’s decision to come out decisively against the Bill. But I have also noted with great interest a press release by the NHS Alliance, which of course has been very much a flag waver for the Government, in which it complained about bullying taking place by the system in relation to clinical commissioning groups. The headline is that doctors leading the NHS reform changes report coercion and bullying in the way the organisations are being set up, which followed a survey of a number of pathfinder clinical commissioning groups. The survey asked: “Do you believe that your clinical commissioning group is being coerced or bullied in how you are setting up in ways that conflict with what you feel would benefit your local population?” Out of the 67 clinical commissioning groups surveyed, 60 per cent answered yes. So much for this hands-off approach that we have been promised. Clearly things have changed. When this started the assumption was that we would have a large number of clinical commissioning groups covering fairly small areas where GPs would actively be involved around the table in commissioning decisions. It has been made abundantly clear that CCGs would not be authorised unless they merged into much larger organisations covering very large population bases.

I wonder whether the noble Earl could perhaps say how many clinical commissioning groups he now expects to be informed. Can he also confirm that they are going to be forced to obtain external commissioning support? Indeed, they have been promised the delight of a bureaucratic procurement process for that support lasting, I understand, up to 12 months. So they are also clearly being leaned upon to use the private sector for such support and they are being forced also to merge commissioning for large-scale commissioning projects. No wonder some GPs are beginning to wonder what this is really all about and whether one beast is being replaced by another. Today Dr Michael Dixon, the chair of the NHS Alliance, told the annual conference about the challenges ahead for clinical commissioning groups or, as he called them, the nation’s future clinical commissioners. He said that they will be confronted by the demons of self-interest, factional politics, ignorance, laziness and raw emotion. They will be hated by all of those who have fed from the gravy train of the current system.

I am a longstanding admirer of Dr Dixon, not least because of his pressure when I was in government to give support to complementary medicine, which I suspect that noble Earl, Lord Howe, now enjoys as well. But I think he made those remarks because he knows, deep in his heart, that the game is up. Whatever one thinks of the Government’s reforms and whatever changes have been made as a consequence of the listening exercises, I had always clung to the thought that the Government were serious about giving GPs control of commissioning. It has become abundantly clear that this is not the case. GPs have been sold a dupe and so too has Parliament, I fear. I beg to move.

[Lord Warner]

I speak to Amendment 157 which is aimed at containing the number of clinical commissioning groups and their total operating costs. I have some sympathy with the remarks made by my noble friend, but before I go into the detail of these particular amendments, I want to give a little context.

My Lords, there has been a great deal of concern expressed by many people who are well versed in the background and activities of the NHS about the number and small size of clinical commissioning groups that might emerge. I do not condone bullying, but we have a problem. The smallest population size for a CCG that I have come across is 18,000 for Radlett, near Watford. I asked the Minister for the Government’s latest estimate of the number of clinical commissioning groups likely to be operational in April 2013. In his answer to me on 9 November, he said:

“It is too soon to estimate the number of clinical commissioning groups that will be operational in April 2013. There are, however, currently 266 pathfinder CCGs covering 95% of GP practices in England”.—[Official Report, 9/11/11; col. WA 58.]

So it is possible that there could be about 280 clinical commissioning groups when all practices are covered. This is far too many to be effective, for reasons I will explain in a moment. We are getting into an extraordinary position. It seems almost an article of faith, or really bold ministerial courage, for the Government to be embarking on this massive NHS reorganisation, at a time of great financial challenge, without knowing, 16 months before they go live, how many clinical commissioning groups—the bodies that will be handling large chunks of this money—will be in place. That seems a pretty racy way to live with a national icon like the NHS.

We will come to the competency tests for CCGs in later amendments. If those competency tests are to mean anything, a significant number of these groups could, presumably, flunk them. Or will all the geese suddenly become swans? What light can the Minister throw on the likely failure rate for clinical commissioning group applicants? When will we have more reliable data on how many clinical commissioning groups we are likely to end up with? For the purposes of discussing the amendment, I will assume that the Government anticipate having something of the order of 250 clinical commissioning groups by April 2013. For many of us, this would seem far too many, and totally fails to learn the lessons of history. As someone who had to learn the lessons of history in the area of commissioning the hard way, I want to share some of that experience with the House.

In 2002, the previous Government set up 302 primary care trusts to undertake commissioning. To some extent, in doing this, it was following the course that this Government are trying to pursue—of getting commissioning closer to local populations. That was one of the arguments for doing it and it is not one which I would quarrel with, in principle. But, like clinical commissioning groups, small PCTs were expected to be able to carry out most of the functions of a commissioner. They needed to have all the skills to undertake commissioning, they needed to be effective demand managers, they had to have the muscle to stop acute hospitals gobbling up too much of the money and they had to be able to secure a more appropriate balance between community-based and hospital-based services in their delivery. They failed, and their failures were shown by a number of reports by the Health Select Committee in the House of Commons. They failed because many of them were simply too small and there were too many of them for the commissioning capability nationally available to be able to staff and run that number of bodies. We are heading down exactly the same path with clinical commissioning groups. The manifestation of the failure of the PCTs was the financial meltdown of the NHS in 2005-06. This meltdown occurred after several years of 5 per cent real terms growth in NHS expenditure and in the middle of a financial year with 5 to 6 per cent real terms growth. This is not the situation that clinical commissioning groups will be faced with.

Health and Social Care Bill

Debate between Lord Hunt of Kings Heath and Lord Warner

Tuesday 22nd November 2011 Lords Chamber

[Lord Warner]

My Lords, this is probably not the best time of night to be concentrating on this set of amendments, because it brings us to the difficult and controversial issue of service reconfigurations. Let me start with why I think that we need to move upstream from the full-scale failure regimes which are provided for in this Bill, and with why I do not consider that one can rely totally on local commissioners and elected Health Secretaries to undertake the scale of service reconfiguration that the NHS requires, or as quickly as it requires. In making that statement I start from a position that the best predictor of future behaviour is past behaviour. In the field of service reconfigurations past behaviour has not been a speedy or easy process to start, let alone finish.

I do not want to spend long on why it is urgent, but the essence of this is the Nicholson challenge, which is £20 billion of productive improvements in the NHS in the four years to 2015-16. As the Health Select Committee has pointed out, no health system in the developed world has ever delivered this level of productivity. To say that it is a big ask is a masterpiece of understatement. The NHS’s track record on productivity improvement is, putting it at its best, modest, so we are dealing with a difficult set of issues, on top of which there are constant pressures from demography, advances in science and rising public expectations in the UK healthcare system and, indeed, in virtually every advanced healthcare system. That is what confronts the NHS.

It is crystal clear that the public and politicians are beginning to recognise more openly that the historic patterns of service provision built around district general hospitals do not meet current or future healthcare needs. They certainly have a capacity to gobble up resources without necessarily delivering the type of services that many patients of the NHS need and which could be delivered more cost-effectively but probably not using the present pattern of hospital configuration. What that means is that we are facing a situation where in many parts of the country we have to change those hospital services very rapidly indeed, and we have to make some painful decisions on those service configurations, which can often mean closing some services, doing some services in a different place, redeploying and retraining staff and, in some cases, in all probability making some staff redundant. That is why this is contentious territory and why it has proven difficult to do. We are now moving towards a financial situation where we cannot put off the job of reconfiguring these services much longer.

The difficult problem we have in the way this Bill is structured and in the way we are approaching this is that we are expecting this painful stuff to be done in a situation where we are saying that local clinicians and local people have got to face up to these difficult decisions. They have got to start the process, unless it gets so bad that Monitor is required to trigger a failure regime. In many cases, the problem manifests itself in an acute hospital, but often you cannot solve the problems of that acute hospital without looking at the wider health economy within which it is situated, so we have a situation which is asking quite a lot of local clinicians, certainly based on experience, to start the process of reshaping those services however right it is in principle to expect local people to take the initiative in these areas.

Historically, we have faced a situation where elected politicians in the form of MPs have found this extremely difficult territory—whether they are going to be Kidderminstered, or whether they are going to find themselves having a very small majority and feeling honour bound to carry a placard around outside the local hospital without making a change. That is not a criticism of them; that is a fact of life. Asking local elected politicians and local people to, in effect, fall on their sword to some extent in relation to changing these hospital services is a big ask. This amendment tries to face up to some of those realities. It suggests that waiting for things to fail, to get so bad that they trigger the failure regime, is putting Monitor in a pretty tough situation.

This amendment tries to move upstream from that and to advance the argument that Monitor, with the support of the national Commissioning Board, should be able to look upstream and see the hospital services that are heading towards failure—in this case, I have taken a period of 12 months before failure—and start to do something about it. In co-operation with the national Commissioning Board, Monitor could trigger an independent panel to work with local people to come up with a set of proposals for reconfiguring services within a reasonable timescale set by Monitor that would make those services sustainable financially and clinically for the future. That is not to say that local people should be excluded but we should have a trigger that brings in some facilitation to help them get there.

Fast-forward, then, to the end of that process. We have often talked about the Chase Farm example. Seventeen years is a bit of a long time to sort out an A&E department, but that is what it has taken. My noble friend Lady Wall is still struggling with what comes next. We have to have something better than that. Elected Ministers are also constituency MPs. They understand the problems that some of their colleagues face. Sometimes they even understand the problems that their opposition colleagues face in these situations. It is not surprising that they find it difficult to take decisions quickly, even armed with the current independent review panel. No stone is left unturned in trying to give local people an endless chance to stop progress. We call it public consultation but it is in fact a stopping of progression of the reconfiguration.

What my amendment also does is to say, at the end of that process, that the Secretary of State cannot be taken out of the loop, but if he is going to turn down this independent panel’s set of proposals for making services sustainable clinically and financially in a given area, he has got to give his reasons to Parliament for doing that and has to come up with an alternative proposal for making those services sustainable. That is why I think we badly need a process of this kind where there is a trigger, some independent facilitation and some lock on the ability of the Secretary of State to endlessly procrastinate or avoid taking a decision coming out of an independent panel.

I am the first to recognise that this may not be enthusiastically received by the elected political class. It is probably a bit much to stomach appointed Peers proposing this idea. However, I am putting this forward on a non-partisan basis in the hope that we can move forward in this area on a basis similar to the one that I am proposing. At the end of the day what I am doing is pinching something. This is not a totally original thought. I am pinching it from Canada’s experience, where in the 1990s the healthcare system in Ontario was literally going broke and they had to find a way of not bypassing the elected political class but facilitating a set of changes that made it easier for elected politicians to take difficult decisions. That is the purpose of this amendment and I move it in that spirit, as a constructive attempt to deal with what I acknowledge is an extremely difficult and complex problem. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, we are indebted to my noble friend for raising what I think is one of the most difficult issues the health service is going to face. There is no doubt that if the efficiency challenge is to be met, there has to be a major reconfiguration of services. Yet, as my noble friend has said, we know that this is often very difficult to undertake and get local sign-off. Both my noble friend and I enjoyed—if that is the word—experience as Minister for the health services in London, and both of us have been involved in some of the agonised discussions with the outer-lying hospitals and boroughs. The whole London area is littered with proposals that have been made for many years and which have not been put into effect. There are other examples up and down the country. The problem is that the health service no longer has the luxury of being able to rely on the uncertainties that are caused by the current system. Reconfiguration needs to take place, and rapidly, over the next two or three years.

I am enormously sympathetic to my noble friend’s amendment. It is interesting that in our previous debates the view has been expressed that ministerial intervention has often caused the problem. My noble friend would still push this substantive decision back to the Secretary of State. That is probably right, because in the end, however much the Government might wish to push this back onto the health service or onto the NHS Commissioning Board, I should have thought that the interest of MPs in reconfiguration issues would have sucked the decision back to the Secretary of State one way or another. We have to assume, therefore, that any process that is put forward does involve the Secretary of State.

I have no doubt that the noble Earl will say that we do not need to go down this route and that he is confident that clinical commissioning groups will be able to embrace reconfiguration of acute services and get sign-off from the appropriate or relevant local authority. I am sure that there may be some areas where that might happen, but of course, one has first of all to recognise that if a major reconfiguration is proposed, it will involve a number of clinical commissioning groups. The first test will be whether a number of CCGs will be able to come together to achieve a strategic outcome. Secondly, even if that happens, those clinical commissioning groups have yet to feel the heat of battle. They may well theoretically sign up to a reconfiguration, but they are inexperienced, I would suggest, in the kind of pressure that they will come under from politicians and the public. I suspect that one or two will find it very difficult to hold the line.

The other problem with the current proposals of the Government is that clearly they wish the NHS Commissioning Board to have a leadership role. However, the Commissioning Board will have much less legitimacy than Ministers when it comes to controversial decisions such as closures of accident and emergency departments. It is easy to see how these may come, in the end, to little fruition.

I certainly support my noble friend. The only question I put to him is whether his process is really tough enough. I wonder whether what really needs to happen is that every area of the country should be reviewed by some kind of independent body as to whether the configuration of services is safe and appropriate. It no doubt could have examinations in public, similar to the old strategic planning process that we have had in the planning system. I would favour a much stronger statutory approach to this, which forces each health economy to come to the table, to put their viewpoint, but then to have an outside group of experts who would then make strong recommendations to the Secretary of State. I fear that without such external views we will find it very difficult to make progress. I suggest to my noble friend that he should consider whether he might need something stronger to make this bite.

Health and Social Care Bill

Debate between Lord Hunt of Kings Heath and Lord Warner

Monday 14th November 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl for his response. I am, of course, very happy for this to be considered in the light of the debate in relation to the other clauses around the Secretary of State’s powers. I may not have convinced the noble Earl but he has convinced me that a “train crash” will inevitably occur given the ambiguity and confusion built into the Bill on the role of the Secretary of State and the national Commissioning Board. The more the noble Earl spoke about that, the more evident the ambiguity became. As regards the mandate, my noble friend’s amendment suggests that only five functions should be given to the national Commissioning Board with five other objectives. I think that he is supported in that by other noble Lords. He has probably forgotten about the innate ability of the wonderful civil servants at the Department of Health to write very long functions which could probably embrace the world. However, I understand where he is coming from.

[Lord Warner]

I well understand the Civil Service’s ability to use the semicolon to extend a sentence for a very long period.

[Lord Hunt of Kings Heath]

My Lords, my noble friend should refine his amendment by limiting the number of grammatical devices that can be used.

I raised this matter because of what the noble Earl said. I raised the reported intervention by the Secretary of State in relation to primary care trusts and the concern that because of their financial issues they are essentially putting in some artificial barriers in relation to patient treatment such as having a rule that on non-urgent treatment you have to wait a certain length of time before you can be treated, and other such mechanisms. When I asked the noble Earl how this would work in the future, he told me that it would be put in the mandate. Clearly, what will happen—

Health and Social Care Bill

Debate between Lord Hunt of Kings Heath and Lord Warner

Wednesday 9th November 2011 Lords Chamber

[Lord Hunt of Kings Heath]

Yes my Lords, but so was the overriding duty of Ofgem to the customer. The problem is how a regulator defines that responsibility. Since the Government are intent on this very foolish drive into competition, I believe that the risk is that the regulator will also be driven into thinking that that is its most important aim.

There are some real questions here, which I put to the noble Earl, about ensuring that there is sufficient concern, investment and leadership on the question of research. I would also ask the noble Earl how we protect and ring-fence the research budget. I ask him to think of the national Commissioning Board, faced with a hard winter, huge public concern and political pressure about funding, and the temptation to dip into the research budget. We all know that that happens. My noble friend Lord Warner and I were debating earlier who was responsible when there was real pressure on the training commissions. I thought it was my noble friend, actually, but we can continue to debate that.

[Lord Warner]

My Lords, things went downhill when I left at the end of December 2006.

[Lord Hunt of Kings Heath]

My Lords, with the greatest respect, I will not go into who left me the junior hospital doctors issue. He will recall that my first day as a Minister was actually the first day of Committee on the glorious Mental Health Bill, and that was a blessed memory, I must say.

My experience was that the health service let us down on training commissions, because at the time they were facing a financial difficulty and it was all too easy to cut those commissions. The result was that Ministers essentially took it upon themselves to put central controls back into the system. My concern is that if the NCB simply has research in its budgetary responsibility and there are severe pressures, it is just too easy to dip into it. The problem is also, as my noble friend Lord Warner said, that, as we know, sometimes research budgets take a little time to kick in, but once you do it you are funding for three, five, seven years. Again, in each financial year, an amount is probably available in the winter that had not been spent. The problem is that you will never get that resource back again.

The second point that I would like to put to the noble Earl is about clinical commissioning groups. How do we ensure that their commissioning decisions support research? My noble friend Lord Turnberg said that research is no cottage industry, but clinical commissioning groups are the epitome of a cottage industry. He also referred to the fact that GPs have little history of undertaking research and commitment to it. Yet we are handing them billions and billions of pounds, quite remarkably, on the basis of no evidence whatever that I can see that they are fitted to discharge that responsibility. I ask the noble Earl where we can have assurance that clinical commissioning groups will be prepared to invest in services where there is a strong research base.

The third challenge is to NHS trusts and NHS foundation trusts. The noble Lord, Lord Ribeiro, put his hand on it when he talked about the reduction in the number of clinical academic posts. I believe that NHS trusts have a great role to play in encouraging their clinicians and in encouraging joint posts with universities. Again, I worry that the focus on job plans and the productivity of clinicians will discourage research because the emphasis will be on patient throughput. How are we going to ensure that that does not happen?

Public Bodies Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Warner

Wednesday 1st December 2010 Lords Chamber

[Lord Warner]

The noble Viscount may wish to interpret this as a Second Reading speech, but I thought that I was asking a very serious question about why some of these bodies are in Schedule 1 when they are fundamentally not that much different from the Audit Commission, which is not in Schedule 1. I am trying to understand the Government’s criteria for including some bodies but not others in this Bill. That is the whole purpose of my speech. I say to him, with the greatest respect, that debating the detail of an order some many months after the passing of this Bill will be too late. Those of us who have experience of chairing and being a member of staff of some of these public bodies would say to him that, once you have signed the death warrant—that is what the Bill is—you have no hope of retaining a great deal of talent in some of these bodies. That melts away. It is a perfectly rational, human response to a death warrant being signed on the organisation that you work for. It is a bit late in the day, when we get to the order, to start having the debate about whether it was a good idea in the first place.

[Lord Hunt of Kings Heath]

This has been a very interesting short debate. I am grateful to my noble friend Lord Warner for allowing us to debate the Audit Commission and some of the matters that arise from consideration of it as far as the Bill is concerned. My noble friend has a distinguished record as a quango basher. He led the arm’s-length body review in the Department of Health, which I succeeded him on. That reinforces the view that we, on this side, are not at all opposed to the principle of looking at each of these organisations where it is quite clear that they ought not to continue or that their functions can be done in another way. We have no problem with that. We do have a problem, however, with the architecture of the Bill. There is the general principle of the Henry VIII clauses, a huge and unprecedented power given to Ministers. I have no doubt whatsoever that, if we as a party had brought this Bill before your Lordships’ House in the last Parliament, we would have had no possibility whatsoever of having it passed.

The second point is this. The noble Viscount is right to suggest that, when affirmative orders come before your Lordships’ House, consultation has to take place and impact assessments have to be published. However, we are right, at this stage, to scrutinise those bodies that are under threat in this Bill.

Also, as a distinguished member of the Merits Committee, the noble Viscount may well have observed the correspondence between the committee and the noble Lord, Lord Strathclyde—the Leader of the House—on the question of the use of the conventions as regards secondary legislation. The Cunningham joint select committee report, which was approved by this House, made it clear that there were circumstances in which it was quite appropriate for the House to seek to defeat secondary legislation. My judgment is that that would apply to this Bill, because the kind of skeletal Bill that the Cunningham committee described is exactly what we are debating today.

The noble Lord, Lord Strathclyde, seeks to reinterpret the convention as regards secondary legislation. Essentially, he does not accept that there is a convention that this House can seek to defeat secondary legislation in the circumstances described by the Merits Committee. That increases our nervousness about whether the scrutiny available to the House of Lords will be sufficient to meet the needs of this Bill. We would have had greater comfort if the noble Lord, Lord Taylor, who is leading this Bill through with his usual inestimable charm, had clearly indicated that the Government would not proceed with Clause 11 and Schedule 7 and would agree to use the super-affirmative procedure. If he had acknowledged that at an early stage, the passage of this Bill would be an awful lot easier. I suspect that that will be the end point of our debates in your Lordships’ House. He will know that there is profound unease about this Bill all round the House. We will continually come back to the point about the architecture.

--- Later in debate ---

[Lord Taylor of Holbeach]

We had this debate the other evening. If the noble Lord remembers, I corrected what I said from “convention” to “custom”. I think that that more closely fits what happens in this matter. It is for the House to decide how it deals with statutory instruments. It is not a matter of convention; it is purely a matter of custom. If the noble Lord is seeking to develop this argument, which may be connected to this amendment—I understand that it is certainly connected to the purpose of the Bill—I think that it would be important for him to bear that in mind.

[Lord Warner]

Whether it is a custom or a convention makes very little difference to the people working in these organisations. As far as they are concerned, if Schedule 1 goes through, they are for the chop. That is the end of those organisations. People will make their own dispositions. They are not going to sit around waiting for the customs and conventions—or whatever we want to call them—of this House to decide whether this House will or will not defeat an order many months later. Does the noble Lord accept that there is a problem of handling for many of the organisations in Schedule 1?

[Lord Hunt of Kings Heath]

Perhaps I may come in first and respond to the noble Lord, Lord Taylor, before he responds to my noble friend. In my remarks I made no criticism whatsoever of the noble Lord, Lord Taylor. He is quite right that he made the point about custom, but I was referring to the correspondence between the noble Lord, Lord Strathclyde, and the Merits Committee, which has been published in, I think, two reports of the Merits Committee.

Finally, having raised concerns about this Bill, we have been informed that we should be comforted by the fact that each order would be an affirmative order. I do not think that that is sufficient, nor do I think that the amendment that the noble Lord has tabled in relation to enhancing that is sufficient.

The problem is that at the moment we do not find the Government willing to hear the voices around this Chamber or to understand that at some point they will have to make some movement, as it is pretty plain that this Bill will not get through your Lordships’ House in its present form. Therefore, it would be in everyone’s interest for the Government to show willing and to sit down and listen to some of the genuine concerns that are held in the House to see whether we can find a constructive way through. The debate on the Audit Commission allows us to put those matters on the table.