Health and Care Bill

Lord Mackay of Clashfern Excerpts

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

[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.