Health and Care Bill

Lord Kamall Excerpts

Lords Hansard - Part 1 & Report stage
Tuesday 1st March 2022 Lords Chamber

Moved by

[Lord Kamall]

2: After Clause 2, insert the following new Clause—
“Spending on mental health
(1) The National Health Service Act 2006 is amended as follows.(2) After section 12E insert—“12F Expected mental health spending(1) The Secretary of State must, in respect of each financial year, publish and lay before Parliament a document—(a) stating, by comparison with the previous financial year—(i) whether the Secretary of State expects there to be an increase in the amount of expenditure incurred by NHS England and integrated care boards (taken together) in relation to mental health, and (ii) whether the Secretary of State expects there to be an increase in the proportion of the expenditure incurred by NHS England and integrated care boards (taken together) that relates to mental health, and(b) explaining why.(2) The Secretary of State must publish and lay the document before the financial year to which it relates.”(3) In section 13U (annual report), after subsection (2A) (inserted by section 29 of this Act) insert—“(2B) The annual report must include—(a) a statement of the amount of expenditure incurred by NHS England and integrated care boards during the year (taken together) in relation to mental health,(b) a calculation of the proportion of the expenditure incurred by NHS England and integrated care boards during the year (taken together) that relates to mental health, and(c) an explanation of the statement and calculation.””Member’s explanatory statement
This amendment requires the Secretary of State to publish any governmental expectations as to increases in mental health spending by NHS England and integrated care boards, and requires NHS England to include in its annual report information about such spending.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

My Lords, in moving Amendment 2, I will speak to Amendments 57, 78 and 109 in my name. We have heard impassioned and compelling arguments here and in the other place for the need for greater emphasis on mental health in the Bill. We have listened and, as a result, have taken action. The result is the package of amendments brought before the House today. I take this opportunity to pay tribute to the many noble Lords across the House who have contributed to the development of these amendments and the advice we have received.

Let us first turn to defining health. I assure your Lordships’ House that this Government remain fully committed to delivering parity of esteem between physical and mental health. We want to support everyone’s mental health and well-being. We are very aware of the impact that the pandemic has had on a number of individuals and communities, particularly the impact on mental health and mental health services.

Amendment 109 removes any potential confusion as to whether references to health within the NHS Act 2006 include mental health. We have made it absolutely clear with our amendment that references to health includes mental health as well as physical health. I know noble Lords will acknowledge that it was our view that the current references to health in the Act would have included mental health, but this amendment is important because it sends a strong signal that health must not just be associated with physical health. Mental and physical health are equally important, and our legislation reflects that fully.

On the transparency and accountability of mental health funding, the Government remain committed to our ambitions in the NHS Long Term Plan to transform mental health services in England. The NHS Long Term Plan committed to increase spending on mental health services in real terms by at least £2.3 billion a year by 2023-24. For each year of the current spending review period, the spend on mental health will increase as a share of the NHS budget. This is in line with the Government’s ongoing commitment to grow investment in mental health services faster than the overall NHS budget. Our amendment seeks to bring added transparency to this commitment and will better enable Parliament, stakeholders and the public to hold the Government to account for meeting this commitment.

The Secretary of State will be required to publish and lay before Parliament, before the start of each financial year, a document setting out the Government’s expectation on mental health spending for the year ahead. This document, a Written Ministerial Statement, will set out whether the Secretary of State expects there to be an increase in the amount and proportion of expenditure incurred by NHS England and integrated care boards, taken together, in relation to mental health, with a supporting explanation. There will also be requirements for NHS England and ICBs to include in their respective annual reports information about such spending to clearly demonstrate performance against expectation.

I am very grateful to the noble Lord, Lord Stevens, as well as the noble Baronesses, Lady Hollins, Lady Merron and Lady Tyler of Enfield, for supporting amendments related to transparency and accountability of mental health funding in Committee, and for their constructive engagement since. I hope I have reassured noble Lords that this Government are committed to delivering parity of esteem between physical and mental health. I hope that our amendments address the issues and concerns previously raised and that the House will pass them today. I beg to move Amendment 2.

[Lord Stevens of Birmingham (CB)]

My Lords, continuing the outbreak of consensus, a large number of mental health stakeholders welcome the fact that the Government have accepted these amendments, which draw heavily on amendments a number of noble Lords brought forward in Committee. I think I said at that point that they would represent a spine-stiffener for the Government in their commitment to ensure that mental health sees a growing share of the growing NHS budget and an accountability booster for the NHS. I think they do that.

However, before the Minister concludes on this item, will he say whether, when setting the mandate for NHS England for the financial year ahead—the mandate that will therefore be laid at some point within the next 30 days—the Government might set the mental health waiting time standards, the very welcome consultation on which concluded last week, in a way that other amendments in this group would look to advance? None of that should detract from the fact that these amendments have wide support outside this place and will make a real difference to mental health in the years to come.

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[Baroness Merron (Lab)]

My Lords, if the role of your Lordships’ House is to improve the Bill, I feel that this set of amendments will achieve this. I am grateful to the Minister and his officials for responding to the points which were made so powerfully in Committee and in meetings outside this Chamber. The range of amendments will take us further.

The Minister talked about the introduction of transparency and accountability, which are key in the efforts to improve the provision of mental health services. However, of course, improving transparency and accountability is not an end in itself; it is purely a way of getting us to the right place. What will be important is what this delivers. A step along the way to improving mental health services is definitely being made, but there is an awful lot more to do. For example, the Centre for Mental Health estimates that some 10 million additional people, and that includes 1.5 million children and young people, will need mental health care as a result of the pandemic. It would of interest to understand a little more about how the Government intend to make progress on this once the Bill receives Royal Assent. Will we see a recovery plan in the area of mental health services, backed by a long-term workforce plan, something which we will return to later?

On the policy to bring practice into line with aspiration, and on the funding for and redoubling of effort towards achieving parity, while we are talking about this on a national level, it would also be helpful for the Minister to clarify that it applies to all areas of the Bill’s implementation and that the new bodies set up by the Bill will be expected to treat mental health equally from the outset. For example, it would mean ensuring that the decisions about resource allocation, capital spending, waiting times and priorities were all taken on the basis that mental health must be valued equally with physical health.

The noble Baroness, Lady Tyler, was right to point out that we do not start in a neutral position, because we know that waiting times are considerable, standards of services need massively to be improved and the workforce needs to be strengthened in order to deliver those services. It is therefore extremely important that the Minister in putting forward these amendments undertakes to see the job through, so that we do not just have transparency and accountability for their own sake but we deliver for the many millions who will rely on those services.

[Lord Kamall (Con)]

My Lords, I once again thank not only noble Lords who spoke in this debate but those who engaged with us throughout the process. As the noble Baroness, Lady Merron, said, if the role of this House is to improve the Bill, we have learned much. As a relatively new Health Minister, I have learned so much from the various meetings that I have had with noble Lords, not only on this issue but on many others across the health and care spectrum.

I thank noble Lords who have engaged with me personally but also with my officials to make sure that we closed the gaps as much as we could. I am pleased to hear support from your Lordships for the package of amendments that I have brought forward, and I am grateful.

I stress that this package of amendments should be considered alongside the amendment placing a duty on ICBs to have an appropriate skill mix and experience necessary to deliver all their functions—I hope that noble Lords will look at those in that context—as we expect skills pertaining to the delivery of mental health services to be considered when meeting this duty at the ICB level as well as below that at place level. Many noble Lords have discussed the importance of place.

Amendment 184 would require the Government to report on our plans to improve mental health standards. Access to services is at the heart of the mental health commitments in the NHS long-term plan. The department, NHS England and NHS Improvement regularly report performance against existing waiting time standards in mental health, including improving access to psychological therapies services, children and young people’s eating disorder services and people experiencing a first episode of psychosis.

As noble Lords have acknowledged, last week NHS England and NHS Improvement took another step to strengthen mental health standards, publishing a consultation response following the mental health clinically led review of standards consultation. As noble Lords will know, this sought views on the proposed introduction of new measures, including five new waiting time standards, to support our ambitions to ensure that patients have timely access to community mental health care.

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Moved by

[Lord Kamall]

4: After Clause 4, insert the following new Clause—
“Duties in respect of research: business plan and annual report etc
(1) The National Health Service Act 2006 is amended as follows.(2) In section 13L (duty in respect of research), after “functions,” insert “facilitate or otherwise”.(3) In section 13T (business plan), in subsection (2)(a), after “13G” insert “, 13L”.(4) In section 13U (annual report), in subsection (2)(c) (as amended by section 69(4) of this Act), at the appropriate place insert—“section 13L;”.”Member’s explanatory statement
This Clause provides that NHS England’s duty to promote research etc includes doing so by facilitating research. NHS England is also required to explain in its business plan and annual report how it proposes to discharge or has discharged its duty to facilitate or otherwise promote research etc.

[Lord Kamall (Con)]

My Lords, in moving Amendments 4, I shall also speak to Amendments 23, 58 and 79 in my name. Before I start, I really should acknowledge the contribution and engagement of a few noble Lords, in particular the noble Lords, Lord Sharkey and Lord Patel, and my noble friends Lady McIntosh and Lady Blackwood for their constructive engagement with me and my officials.

We have seen the power of research as we have made our way through the pandemic, and research will continue to be essential. I agree that research needs to be embedded in the very DNA of the NHS. Earlier this week, I chaired a round table with a number of research charities and other stakeholders, and we all talked about the importance of embedding research into the NHS. A bit like the challenge I had when I was in academia, when you wanted more time for research but at the same time were told to get on with your day job of teaching students, likewise many clinicians are under the same pressures in terms of the day-to-day delivery of healthcare while wanting time for research.

We know that informed research helps to improve healthcare and health outcomes. It brings benefits to patients, staff, the NHS and the wider economy. We believe that integrated care boards will play a leading role facilitating and enabling research and fostering a culture and environment for research to flourish. To this end, the Bill currently places a duty on each ICB that it

“must, in the exercise of its functions, promote … research on matters relevant to the health service, and … the use in the health service of evidence obtained from research.”

I have, however, heard clearly from noble Lords that they want to see a step change in research. That is a request, or a plea, that I agree with, so rather than directly funding or conducting research, ICBs will primarily facilitate and enable it. However, ICBs will also have the power to conduct, commission or assist the conduct of research. This could include hosting or being a collaborating partner in research infrastructure.

I also heard from noble Lords, particularly the noble Lord, Lord Sharkey, that it is not clear what a duty to promote research should involve. To that end, I have tabled Amendments 4, 23 and 79 to clarify that the meaning of “promote” includes “facilitate”. I once again thank the noble Lord, Lord Sharkey, for his engagement. This highlights that facilitation is a subset of the range of activities meant by promoting research while retaining the breadth of a duty to promote research.

The duty is broad and could be met in a number of ways. For example, when exercising its commissioning functions, an ICB may select providers which have a proven track record of being research-active or can demonstrate the intention and capability to participate in research. The provision is also flexible so that bodies can develop the processes and structures that work most effectively, but we anticipate that ICBs would have dedicated research offices or teams to support their role in research and to encourage the conduct of research.

To ensure that research is fully embedded in local systems, we expect ICBs to consider research when preparing, with the responsible local authority, a joint strategic needs assessment articulating local research needs where they identify them. We would also expect ICBs to ensure that the joint local health and well-being strategy sets out how research needs can be met by the ICB. We have tabled Amendment 35, which is to be debated in the next group, to ensure that the research duty, along with other duties, is given particular consideration during ICBs’ planning of their strategies. We have also tabled a package of amendments to provide increased transparency, accountability and oversight of the research duties.

During the debate in Committee, my noble friend Lady Harding remarked that

“what gets measured gets done”.—[Official Report, 24/1/22; col. 47.]

We agree. Amendment 4 requires NHS England’s business plan to explain how it proposes to discharge its research duty and requires its annual report to contain an assessment of how effectively it discharged this duty. We have tabled similar amendments for ICBs. Amendment 55, also to be debated in the next group, would require that ICB annual reports must explain how the ICB has discharged its research duty. Amendment 58 would require that the NHS England’s performance assessment of each ICB includes an assessment of how well it discharged its research duty. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I take this opportunity to thank my noble friend for listening and acting in the terms set out in the amendments in this group, which I support on research as far as they go. I have to express my disappointment that my noble friend has not seen fit to extend his bonhomie to NICE. I have therefore tabled Amendment 29, and I am delighted to have the support of the noble Lords, Lord Hunt of Kings Heath and Lord Patel. As set out by the noble Lord, Lord Kakkar, our thoughts are with the noble Lord, Lord Patel, who is unable to be with us today, and we wish him the speediest possible recovery. It is a great shame that he cannot be here today because we would all wish to pay tribute to his work historically as the forerunner of NICE. We are grateful to him for it. It is a great disappointment to me that he is not able to be here in person.

I also support Amendments 171 and 178 in the name of the noble Lord, Lord Hunt, but I shall leave the noble Lord to set them out.

My noble friend has set out that the government amendments set a responsibility on integrated care boards to respond annually and to measure the research work that they have done. Quite frankly, I am a little concerned and gobsmacked as to why my noble friend is not insisting that integrated care boards do the same as regards NICE. The key provision of my Amendment 29 is:

“Within 28 days of any medicine or device receiving market authorisation from NICE, an integrated care board must update its formulary to include that medicine or device.”


I have set out other provisions, but the other one to which I draw attention is in proposed new subsection (3), which says that every year an individual ICB must report

“in a publicly accessible format”—

to me that would mean it being accessible on its website—

“all medicines and devices that have been added and removed from their formulary over the previous year and maintain an active list of all medicines and devices available on their formulary.”

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[Baroness Thornton (Lab)]

My Lords, I do not intend to speak about this for very long, because I feel that I am the least well-equipped person in the whole Chamber to do so—possibly with the exception of the Minister, which is often the way and is how I felt when I was a Minister; I would stand up to speak about research and other huge subjects and everybody else in the Chamber who had spoken certainly knew a lot more than I did, and that is the case here.

Noble Lords may recall that the starting point at Second Reading and in Committee was that there was no place for research in the Bill at all—so I congratulate noble Lords who picked this up and ran with it, and, indeed, the Minister and the Bill team on taking it on board and producing these amendments. That is helpful; as the noble Lord, Lord Kakkar, said, it is about the future and it is exactly the right thing to do.

I also agree with the noble Baroness, Lady McIntosh, and my noble friend Lord Hunt in their disappointment on the issue of NICE. They are quite right about the access and availability of medicine and devices to healthcare practitioners and that the system is still uneven; also, of course, nobody is asking how we are doing and whether it is working. It is a shame that these aspects have not been included in the Bill, but I suspect that the noble Baroness and my noble friend will probably live to fight another day.

[Lord Kamall (Con)]

My Lords, I am grateful to all noble Lords who have spoken thus far in this debate. I also thank the noble Baroness, Lady Thornton, for expressing her confidence in my ability to understand these issues; I fear that she may be right.

Turning first to Amendment 29, it is firstly important to note that it is the MHRA, not NICE, that licenses these medicines in the UK. NICE makes recommendations on whether the price that the NHS pays for treatments represents value for money. Access to effective new treatments for NHS patients is a priority for the Government. That is why we have committed to maintain the funding requirement for NICE appraisal of recommended treatments.

The standard contract also stipulates that providers must ensure that formularies include all NICE appraisal-recommended treatments. NICE’s guidance on developing and updating local formularies also clearly states:

“When a NICE technology appraisal recommends a medicine, adopt the medicine into the local formulary automatically, if clinically appropriate and relevant to the services provided by the organisation. This process should take place within 3 months.”


I believe that this represents a robust legal framework for ensuring compliance with NICE’s appraisal decisions. A stronger legislative requirement to include all NICE-recommended treatments on formularies within 28 days of a NICE decision would remove any flexibility both to vary the timescale where there are barriers to implementation, or where a product was not relevant to a particular organisation.

Turning to Amendment 171, NICE rightly operates independently from the Government, and key to this is setting its own procedures for developing guidance and recommendations. This includes setting its own discount rate, taking into account the wider policy and fiscal implications. NICE recently carried out a comprehensive review of its methods and processes for making appraisal recommendations, and the changes that NICE is introducing will ensure that its processes are fairer, faster and more consistent. I assure noble Lords that NICE already aims, wherever possible, to make timely recommendations on new medicines with draft guidance around the time of licensing, and final guidance within three months of licensing. However, NICE’s ability to issue guidance depends on an evidence submission from the manufacturer. It would not therefore be appropriate to place a requirement in legislation for a specified timeframe when that is dependent on other organisations.

This amendment would also require NICE to take account of a company’s membership of the Voluntary Scheme for Branded Medicines Pricing and Access, or the statutory scheme, in making its recommendations on medicines. These schemes have a very different purpose from NICE appraisals, which ensure that new medicines are clinically and cost effective, and they are time-limited, so would create significant disparities between medicines launched at different times.

I turn now to Amendment 178. I hope I can assure the noble Lord that arrangements are already in place to regularly review and monitor delivery against priorities and objectives, including through accountability meetings, engagement with external partners and public board meetings. The Government believe that regular monitoring through existing arrangements is the right approach and do not consider that a requirement to carry out a review is necessary. I assure the noble Lord that the changes recently introduced by NICE will make its methods and processes fairer, faster and more consistent, will ensure that they are suited to new and emerging types of technology, and will provide more equitable access for those with severe diseases. The vast majority of cancer medicines covered by the previous end of life flexibilities would also be covered by the severity modifier.

Placing requirements on NICE through primary legislation to use specified processes would fetter its independence to determine its own methods and processes, and it would be unfair to operate two different approaches at the same time. The amendment proposed by the noble Lord could also impact negatively on cancer medicines that were not eligible for the end-of-life flexibilities in their first appraisal but may be eligible for the severity modifier.

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Moved by

[Lord Kamall]

5: Clause 5, page 3, line 15, leave out “The reference in subsection (1)” and insert “In subsection (1)—
(a) the reference”Member’s explanatory statement
This amendment is consequential on another amendment which provides that references in new section 13NA of the NHS Act 2006 to effects of a decision in relation to certain matters include its effects in relation to inequalities with respect to those matters.

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Moved by

[Lord Kamall]

8: After Clause 6, insert the following new Clause—
“Information about inequalities
(1) The National Health Service Act 2006 is amended as follows.(2) After section 13S insert—“13SA Information about inequalities(1) NHS England must publish a statement setting out—(a) a description of the powers available to relevant NHS bodies to collect, analyse and publish information relating to—(i) inequalities between persons with respect to their ability to access health services;(ii) inequalities between persons with respect to the outcomes achieved for them by the provision of health services (including the outcomes described in section 13E(3)); and(b) the views of NHS England about how those powers should be exercised in connection with such information.(2) NHS England may from time to time publish a revised statement under subsection (1).(3) In this section “relevant NHS bodies” means—(a) integrated care boards,(b) NHS trusts established under section 25, and(c) NHS foundation trusts.”(3) In Schedule 4 (NHS trusts: constitution etc), in paragraph 12, after sub-paragraph (1A) (inserted by Schedule 4 to this Act) insert—“(1B) The annual report must, in particular, review the extent to which the NHS trust has exercised its functions consistently with NHS England’s views set out in the latest statement published under section 13SA(1) (views about how functions relating to inequalities information should be exercised).” (4) In Schedule 7 (constitution of public benefit corporations), in paragraph 26, after sub-paragraph (1A) (inserted by Schedule 4 to this Act) insert—“(1B) The reports must, in particular, review the extent to which the public benefit corporation has exercised its functions consistently with NHS England’s views set out in the latest statement published under section 13SA(1) (views about how functions relating to inequalities information should be exercised).””Member’s explanatory statement
This Clause requires NHS England to describe the powers of certain NHS bodies to process information relating to inequalities and to express its view on how those powers should be exercised. The annual reports for the bodies will need to state how far the functions have been exercised consistently with those views.

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[Baroness Brinton (LD) [V]]

My Lords, it is a pleasure to follow the introduction from the noble Baroness, Lady Thornton, of her Amendment 9, which I signed. It is the first of a group on the structure and membership of integrated care boards—including the Commons amendments to which she referred. We agree with the noble Baroness and have concerns about the possible loophole of sub-committees. Before I go into that, I will add my thanks and congratulations to my noble friend Lady Walmsley on her excellent proposals for a skills audit and thank Ministers for agreeing to them. I hope that the Minister will reflect on some of the other amendments in this group that seek to ensure core representation from certain key groups within the NHS.

In Committee we had a lengthy debate on the roles and responsibilities of those who may have current or past connections with private sector providers. A key element of that debate revolved around the duties of board members and sub-committee members of the ICB to have its duties at the heart of all they do as they commission using public money. In his response to that debate, the Minister said that

“each ICB must make arrangements on managing the conflicts of interest and potential conflicts of interest, such that they do not and do not appear to affect the integrity of the board’s decision-making processes. Furthermore, each appointee to the ICB is expected to act in the interests of the ICB.”—[Official Report, 13/1/22; col. 1308.]

Amendment 9 seeks to clarify exactly what is meant by “each ICB” by looking at the structures for those that make decisions—which includes sub-committees. The noble Baroness, Lady Thornton, described the difficulties in the example of Virgin Care that demonstrate the loophole she spoke of.

I want to go back a step to the principles behind conflicts of interest. In 1995, the then Conservative Government adopted the seven Nolan principles of public life, which are applied to all who hold public office. Members will know very well that these key principles of personal and corporate behaviour are a golden thread running through the public service that any officeholder delivers, and health bodies are specifically included in the rubric of Nolan. All seven principles are absolutely intrinsic to how an ICB and its members will operate, whether at board or sub-committee level. To pick just two, they must have integrity, including not to

“act or take decisions in order to gain financial or other material benefits”,

and they must

“act and take decisions in an open and transparent manner”.

Amendment 9 expresses exactly the type of arrangement that a public-facing body, even a sub-committee that commissions public services, should have in place. I ask the Minister: would any Government not want conflicts of interest in respect of sub-committees of ICBs to be clear, unambiguous and strong? Is he really arguing that each board should not have that wall of protection in ensuring the integrity of its decision-making processes, as set out in proposed new subsection (4)(a)? Does he think that it is appropriate not to have an appointment process that avoids the appointment of anyone who would be perceived to have a conflict of interest, as in proposed new subsection (4)(b)? Does he also not agree that anyone who has a conflict of interest or potential conflict of interest should not have information that

“might be perceived to favour the interest or the potential interest”,

as set out in proposed new subsection (4)(c)? If the Minister cannot answer those questions, I fear that some noble Lords might be concerned that the Government have abandoned the Nolan principles for some people on sub-committees who will make decisions on commissioning many millions of pounds of public funds. I look forward to his response.

[Lord Kamall (Con)]

My Lords, with the leave of the House, I hope that noble Lords will find it helpful for me to speak early in this debate, since we believe that government Amendment 31 addresses some of the concerns raised by noble Lords. I shall, of course, listen carefully to the rest of the debate and respond in full at the end.

In speaking to Amendment 31, I thank noble Lords from across the House for the wide-ranging discussions in the Chamber on membership of ICBs. We are grateful for the discussions. Many noble Lords have offered their gratitude to the noble Baroness, Lady Walmsley, for the suggestion on the skills mix. We accept the spirit of these amendments and agree that it is important that ICBs are populated by members with the appropriate range of skills and expertise. I know that noble Lords have heard this many times, but it is also important that we do not over-prescribe, as ICBs should have the flexibility to design their boards to meet their needs, while also ensuring they have the skills and experience necessary to properly discharge their functions.

We have listened, and I hope that the amendments we have brought forward, which require ICBs to consider these skills, knowledge and experience, address those concerns while also ensuring balanced, workable boards. When the amendments refer to the necessary skills, knowledge and experience, that is in relation to the discharge of all the ICBs’ functions, including those related to mental health, children’s health, public health, public and patient involvement, engagement with the voluntary, charity and social enterprise sector, and digital innovation and integration. Therefore, these amendments would help to ensure confidence that ICBs have the necessary skills and expertise to discharge these functions, while allowing them to retain discretion in how they deliver this. This approach has been welcomed by stakeholders, including the Allied Health Professionals Federation, which represents 12 professional bodies representing allied health professionals.

The second, connected amendment would ensure that an ICB reports on how it has discharged this new duty in its publicly available annual report. This will allow public scrutiny of ICBs and create confidence that they are drawing on an appropriate range of skills, expertise and knowledge. This is in addition to governance of ICBs being clearly set out in their constitutions, which will also be published and signed off by NHS England. As I have said, I shall listen carefully to the rest of the debate, but at this stage, for these reasons, I commend these amendments to the House.

[Lord Bradley (Lab)]

My Lords, I rise to speak to this group of amendments, but particularly to move at the appropriate time my Amendment 12. Again, I declare my health interests in the register, especially as a trustee of the Centre for Mental Health and an honorary fellow of the Royal College of Speech and Language Therapists.

As we have heard, we had considerable discussion about membership of ICBs in Committee. I argued in an amendment that membership of ICBs should include a representative of a mental health trust. I also supported amendments stating that allied health professionals—who make up about a third of the health and social care workforce, within which speech and language therapists are a crucial service—should also have membership on the board. However, as we heard, the Government rejected the arguments, principally on the grounds that they made membership too prescriptive and inflexible.

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[Lord Mackay of Clashfern (Con)]

My Lords, one has to start with the definition of the functions of the integrated care board in the Bill. It says:

“An integrated care board … has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act”—


that is, in accordance with all the provisions of the Act. The idea that you must identify some of them in order that the thing should be perfect strikes me as damaging to the nature of the definition. For example, we had today at Question Time a Question about experts in eating disorders. Ought it be said that we must have an expert with clinical experience of dealing with eating disorders? Is it perfect without that? This is the nature of the board that is being set up: it has a generalised responsibility for all that the Act provides in relation to its area.

So far as Amendment 9 is concerned, it seems to me that the requirement in respect of conflicts of interest is part of the construction of the board itself. Therefore, it must be a restriction, if you like, on every committee and sub-committee of the board, because they are all part of the board and therefore subject to that definition.

[Lord Kamall (Con)]

My Lords, despite what the noble Baroness, Lady Thornton, said at the beginning about this perhaps being the end of the harmonious start to our debates so far, I feel that this has been a helpful and constructive debate. I am grateful to noble Lords for bringing these issues before the House.

Let me start with Amendment 9, as I understand the wide interest in the membership of the committees of the board and potential conflicts of interest. We firmly agree that conflicts of interest must be handled carefully, and have included multiple references to that in the Bill. We also recognise the concern that ICBs should not allow private providers to control commissioning decisions, which is why we added the amendment relating to private providers in the other place, in paragraph 4 of Schedule 2.

Furthermore, in the helpful discussions we have had with noble Lords since then, there has been mutual recognition that we need to balance the importance of protecting the core values and public nature of the NHS while not overly restricting the membership of ICBs. I am pleased that the amendment to Schedule 2 balances on that tightrope and gives appropriate reassurance. We think that it is reasonable to allow private providers and social enterprises to sit on some committees and sub-committees of the ICB, as barring them risks blocking sensible integration and joint working.

I am also aware of the mixed reactions to this amendment from stakeholders. Many noble Lords will have seen the NHS Providers Report stage briefing, which states that

“there could be circumstances where a local private or voluntary sector provider would be well placed to join a joint committee with a focus on integrated service delivery whereby the usual arrangements to identify and manage conflicts of interest would, and should, apply.”

It goes on to say:

“It does not seem reasonable … therefore to further restrict the membership of those committees in a way which is prescriptive in law.”


Further, the NHS Confederation stated in its Report stage briefing that this amendment

“risks critically undermining integration by reinforcing a rigid, out-dated purchaser-provider split and derailing the fundamental purpose of these reforms.”

As it so eloquently put it:

“The current reforms aim to facilitate collaborative working by bringing all partners in local areas around the table to plan the most effective and the most efficient way to deliver care. This, by its nature, involves bringing providers of services, alongside commissioners, into committees and sub-committees of the ICB to plan how care is delivered”.


Potential conflicts of interest are inevitable in commissioning, especially when we are looking to increase integration and bring multiple bodies together. The ICBs will be required to manage conflicts of interest as part of their day-to-day activities. That is set out in the Bill and will be part of their constitution as well.

For all committees, the board of the ICB will have to determine what functions they exercise, their membership, and the level of oversight of their decisions. The board of the ICB cannot delegate a function and claim to be no longer responsible for how it is discharged, and will be held to account for this by NHS England.

Also, ICBs will be clear and transparent about interests, and how they are being managed. We think that transparency will prevent poor decision-making. New Section 14Z30 makes it clear that an ICB must maintain and give public access to a register of interests for members of its committees or sub-committees. There must be arrangements in place to ensure that conflicts are managed not just for ICB members but within committees. The constitution of the ICB must also include the arrangements to be made to discharge the functions under new Section 14Z30 and a statement of principles to be followed by the board in this regard. This will all be supported by guidance from NHS England. We are quite determined to tackle conflicts head on and not shy away from this issue.

[Lord Hunt of Kings Heath (Lab)]

My Lords, if NHS England is determined to tackle conflicts of interest head on, why is it building them into the whole structure of integrated care boards? Let us think about an integrated care board discussing future strategy: it would inevitably discuss where the priorities will be. That inevitably means that money will follow the priorities. At what point in those discussions do the major providers, who will be sitting round the table, have to withdraw from because of a conflict of interest? At heart, this ambiguity is built in, so it is not surprising that my noble friend wants to see consistency right through the system, including the sub-committees.

[Lord Kamall (Con)]

I thank the noble Lord for that intervention because I was just about to come to it. I should add that new Section 14Z30 very clearly requires ICBs to manage conflicts of interest at sub-committee level.

We think that the approach we have outlined will be more appropriate and possibly more effective than simply barring individuals with a conflict of interest—which, I encourage noble Lords to note, would also include NHS Providers and local authorities— from all committees with a commissioning function. First, this approach is broader than what the noble Baronesses might have intended. Secondly, many committees will have a range of functions, and commissioning may be only a small part of their activity. This approach risks creating a series of duplicated committees with similar interests to enable commissioning decisions to be taken in line with the amendment. This risks undermining one of the very purposes of this reform: to reduce bureaucracy and increase integration.

On Amendment 10A, we are clear that chief executive pay should be value for money. The pay framework is based on our ability to attract the highest-quality candidates. ICB roles, such as the chief executive, are some of the more complex in the health system. Experienced chief executives of trusts already exceed the suggested £150,000 per annum remuneration. Therefore, we do not believe it would be realistic to expect them to take a pay cut to take up a role with such a portfolio.

I remind noble Lords that putting the salary of an ICB chief executive into the Bill would be inappropriate. Such a lack of flexibility would be extremely unusual for a senior position and risks salaries declining in value over time, precisely as ICBs take on more responsibility as they become more established. This would fundamentally weaken ICBs’ ability to recruit and retain senior management. I also warn that directly tying pay to performance is likely to make it significantly harder to recruit chief executives to more challenging ICBs—precisely the organisations that we would want to recruit the very best leaders.

I hope I can reassure noble Lords that the recruitment process will ensure that only the most qualified people can take up these roles. All ICB chief executive appointees across England need to demonstrate how they meet—

[Lord Lansley (Con)]

I am sorry to interrupt my noble friend. I do not think we have debated Amendment 10A; it is not in this group.

[Lord Kamall (Con)]

I wish my noble friend had stood up the moment I mentioned Amendment 10A. I can only apologise. I have received advice to agree with what my noble friend said. I shall very quickly move on and I thank him for his vast experience of this.

Let me move on to a couple of issues raised about mental health. We expect mental health trusts to play a critical role in ICBs and ICPs. The Bill sets out a minimum requirement. It does not specify what sort of care NHS trusts or NHS foundation trusts deliver. As we said earlier in the debate, we hope that ICBs by local agreement go beyond the minimum requirements. We clearly want to see parity of esteem between mental health and physical health.

Noble Lords mentioned public health. The department and NHS Improvement publications have stated an expectation of an official role for directors of public health in ICBs and ICPs. This recognises the vital advisory and leadership roles of directors of public health in the system-wide effort across all domains of public health, which is amplified by the shift to a more preventive, collaborative and integrated systems focus on improving population health. We are working very closely with stakeholders to shape this official role in relation to ICBs.

Can I just check that we talked about Amendments 14 and 32? Yes, we did. This is a more interactive session than many noble Lords would have expected. Perhaps it will do as a sort of novelty. I believe that Amendments 14 and 32 are aligned closely with the skills mix amendment, and I hope that will go some way to satisfying concerns.

On guidance, I am able to reassure your Lordship’s House that NHS England’s regional teams are having ongoing discussions with CCGs and will deal with ICB leaders about the potential membership of the ICB board on establishment. These discussions are focused on ensuring that the board will be effective in discharging the statutory duties of the ICB. Looking beyond this, NHS England is able to issue guidance to ICBs and will engage with them—to understand what issues are emerging during the initial period of operation —and their committees and how they are working with stakeholders. In some areas, NHS England is already developing draft guidance. For example, the proposal is that each ICB will be expected to have a named lead with responsibility for commissioning for learning disability and autism.

On regulations, we think the rules as currently set out in the Bill, and with the addition of the new skills mix amendment, are sufficient and will give ICBs the space they need to develop effective systems in their area. The Bill already includes a regulation-making power that covers any provision related to ICBs’ constitutions, including ICB membership. Therefore, if we deem it necessary in future to be more specific about ICBs’ membership requirements, we retain the ability to do so through regulations. I hope I have been able to provide some assurance—sufficient assurance—to noble Lords and that they will not move their amendments when they are reached.

[Baroness Bennett of Manor Castle (GP)]

I do not believe that the Minister has directly addressed Amendments 10 and 13. I am aware of the time, so perhaps he will agree to write to me about them.

[Lord Kamall (Con)]

That is a very wise suggestion by the noble Baroness, and I will acquiesce to it.