Health and Social Care Bill

Lord Trefgarne Excerpts

Thursday 8th March 2012 Lords Chamber

[Lord Harris of Haringey]

My Lords, this is a complicated group of amendments. There are, I think, 50 government amendments in this group that completely change the direction of this part of the Bill. Of course, we do not have the benefit of a Committee consideration of these changes, which is unfortunate, given the nature of the changes that are envisaged.

In fact, what we are being confronted with is an almost extraordinary volte-face by the Government about how local healthwatch organisations are going to operate and proceed. As it stood, before these amendments, the Bill provided local healthwatch with a very clear structure and very clear governance. It defined membership and it defined their role. As such, the arrangements were better than LINks, better than PPI forums and, in one or two respects, better than community health councils. It was a very clear statement. There remained the problem that local healthwatches were going to be the creatures of local government without the benefit of ring-fenced money and with the potential issues around conflicts of interest concerning social care. I am reminded that on 15 October 2007, the noble Earl, Lord Howe, clearly took the view that it was inappropriate for a local authority to be host to a LINk. Presumably, the same arguments that influenced his thinking then apply on this occasion.

We have been offered guidance on conflicts but, again, it is not clear how this will work, which is something that we could have pursued perhaps in detail in Committee. The amendment refers to having regard to the guidance on conflicts, which I suspect will not necessarily be strong enough for the sorts of conflicts of interest that potentially could arise. We also have the enormous concession, to which I referred earlier, of Amendment 226ZG, which enables HealthWatch England to write a letter if it feels that something has gone wrong.

That is where we were but now the Government, without explanation or consultation, have decided that local healthwatches will no longer be statutory bodies. We are told that that is all in the name of the need for flexibility. The noble Baroness has mentioned repeatedly the briefing which took place yesterday evening, to which, incidentally, I was not invited. Even had I been, I would not have been able to attend because the meeting clashed with the regular meeting of Labour Peers, which one would think that the Government would wish to avoid. At that meeting various papers were tabled which referred to the importance of flexibility but we are not clear as to what that flexibility will deliver.

In moving the amendment the noble Baroness talked about the Government’s proposals in the Bill as creating a series of “unaccountable quangos”. I recall previous briefings which I attended with Ministers and the Bill team when it was explained that there would be guidance about how the membership of local healthwatch was going to be derived and to demonstrate that these were going to be accountable bodies and not unaccountable quangos. Somewhere along the line, in the past few weeks, there has been this amazing change of attitude, which does not seem to follow the benefit of any real explanation or consultation with those who might take an interest in it.

That underpins the amendments spoken to by the noble Baronesses, Lady Cumberlege and Lady Jolly. The noble Baroness, Lady Cumberlege, highlighted the difficulty that would arise between members and staff. The noble Baroness, Lady Jolly, talked about the importance of lay leadership. In terms of the changes, the Government are going to make it more difficult for there to be lay leadership and the role of members versus staff will be blurred still further. Indeed, the staff will be the dominant influence.

This is not a matter on which there has been consultation. I have received a note from the National Association of LINks Members, which states:

“Ministers say that they are ‘not convinced’ that LHW needs to be a stand-alone, statutory body corporate. It is not ministers who will be relying on LHW to get them a fair shake but the old, sick, vulnerable, frightened and marginalised and these, along with the rest of the patients and the public, are the ones who need to be ‘convinced’ that we have a model that will work”.

It says that it is not convinced. It points out that local healthwatch should,

“have a standard ‘platform’ of presence everywhere in England, not merely through logos, straplines and brands”—

which the Government’s amendments will make happen—

“but through a locally elected membership, a single ‘address’ and identifiable staff that it has appointed”.

It says that only:

“Statutory, body corporate status would deliver this”.

It continues:

“Government says it does not want a top-down model but it is making top-down decisions, and these fly in the face of all the evidence of the past three and a half years of LINks, all the advice of all the LINks’ members of the government’s own HealthWatch Advisory Board, of the National Association of LINks Members, all the advice of many, many LINks all over England. ‘Being heard’ has simply vanished from the national scene. The government pontificates on what it does not practise. It legislates but it does not listen”.

It suggests, although I could not possibly automatically agree, that:

“What the Government actually fears is 152 statutory LHWs, with genuine independence, with real clout and public buy-in, a separate identity, and powerful and committed membership”.

If that is the concern, where do we go from here? I am taken with the sage advice your Lordships received from the noble Earl, Lord Howe, when we debated the creation of LINks, the slightly ill-fated proposal by the previous Labour Government. The noble Earl, in his typically courteous but forceful way, said then—given these government amendments, you can simply substitute HealthWatch for LINks:

“We have come to a group of amendments most of which in their different ways relate to the same problem. I use the word ‘problem’ as the most neutral term I can readily think of for what many of us regard as a most serious and regrettable weakness in this part of the Bill; namely, the absence of even the slightest hint of a statutory identity for LINks. There is a complete lack of any descriptive reference to what a LINk might look like and practically no definition of a LINk”.

That was the noble Earl, Lord Howe, talking about the creation of LINks. Yet today he has brought forward amendments—admittedly he has delegated this to the noble Baroness, Lady Northover, who is acting as his mouthpiece on this occasion—that will do precisely what he complained that the previous Government did.

Of course he said much more than that. I will not burden the House by repeating all the remarks he made in October 2007, but if we substitute HealthWatch for LINks every time it appears, we will get the flavour. He went on to say:

“As the Bill stands there are no provisions for LINks to have any form of governance arrangements; it is left completely open as to how a LINk would be able to make decisions or authorise people to act on its behalf. This is a major issue because without some form of governance you cannot have accountability. If there are no people authorised to act on its behalf, a LINk cannot be accountable”.—[Official Report, 15/10/07; col. 567.]

He later said:

“The key issues around governance are really three: how decisions are to be made; how activities are to be undertaken; and, who is to do these things? Without those minimum requirements we would be left with a situation where someone who has joined a LINk, but who never attended any meetings or received any training or signed any code of conduct”,—[Official Report, 15/10/07; col. 568.]

could proceed in particular ways. So the lack of statutory identity was something that the noble Earl, Lord Howe, told this House was absolutely critical when we debated the creation of LINks. And he was absolutely right. I remember agreeing with him at the time and feeling that my Government had got it wrong. But this is the point. The Government have now brought forward amendments which undo all his fine words at that time and all his attempts to put this right, and that is because statutory status at the local level was what was going to give HealthWatch a cutting edge, an authority in terms of its relationships with other bodies.

The noble Earl also had a few words to say about the underlying argument that this should be delegated down. He said then, and we could say it to him now, that we were told that the Government did not want to be “prescriptive” and that it would be up to each LINk to set itself up in the way it wanted.

In June 2007, he quoted a telling Greek legend. Indeed, he may remember using this example:

“I think it was Proteus who was able to assume any shape or form that he liked. The reason why he did this was in order to avoid foretelling the future. For us debating this part of the Bill, it is almost impossible to foretell the future because neither the governance arrangements of LINks, nor their structures, nor their powers, nor even the precise scope of their activities, are set out here. In a real sense, as with Proteus, we do not know who or what we are dealing with”.

With these amendments before us today, the Government are substituting something else when we would have known what we were dealing with and where there were precise governance arrangements. But they are taking all that away and moving towards something that the noble Earl also, presciently, described in that debate, saying:

“As I understand it—the Minister may correct me—because LINks are not defined they are not classifiable as statutory bodies. We may know a LINk when we see it—although I am not completely sure about that—by virtue of the things that it does … The Bill refers to activities being ‘carried on’”.

I look at these amendments and, my goodness, Amendment 236C in the name of the noble Earl talks about,

“activities carried on for the benefits of the community in England”.

Incidentally, how a local organisation is supposed to act in the benefits of “the community in England” seems to be a very odd use of words. However, phrases such as “activities carried on” were precisely what he said then was the wrong way of going on.

The noble Earl went on to say in that June 2007 debate:

“In fact, in one way or another, there is quite a lot of carrying on in this part of the Bill. There may be a joke there somewhere but I shall refrain from trying to find it. But that nebulous form of drafting is as far as we get. It will be incumbent on us in Committee”—

we do not have the benefit of being in Committee today—to sort out this unsatisfactory regime. He continued:

“The main problem with the Bill is that because LINks”—

and you could say the same about HealthWatch now—

“have no identity or definition, they can be seen neither as bodies whose independence is guaranteed, nor as bodies which have the power to hold local health and social care commissions to account”.—[Official Report, 20/6/07; cols. 252-3.]

Those were the wise words of the noble Earl, Lord Howe, then, but he is the same noble Earl who is bringing forward amendments that create the same precisely the structure that he said was totally inappropriate then.

Let us look at what the Government are doing and I will be brief. Amendment 231B removes the statutory status. Amendment 231C removes all structure, form and governance from the Bill. Amendment 234A talks about “one set of arrangements”. It implies not just a single arrangement in any local authority area, but a set of arrangements, so it would not necessarily be one contractual arrangement: it would be a set of contractual arrangements. The word “arrangement” is in the plural.

Amendment 235C is the great catchall that tells us it is all going to be all right and that all these bodies are going to be the same in that there will be a licence to use a trademark. I am enormously reassured by that. Amendment 235D provides for subcontractors for the different functions. So what we are envisaging is that a local authority will divide up the functions of HealthWatch organisations and contract each of them to a separate organisation. Does that really make sense? Is that the strong patient voice that we were promised at local level?

In Amendments 238ZM and 238ZN there are specific references to contractors. This is essentially moving from a position where there will be a clear number of local statutory bodies delivering patient representation on behalf of their communities, with members from those communities running those organisations, because that is what the governance arrangements were before. This is essentially privatising that process, albeit by so-called social enterprises. This is privatising consumer representation.

How can contractors be representative? Yes, there is an amendment that says that these contractors will be broadly representative of the local community, but how can an enterprise itself be representative of the local community? I find this concept difficult to understand. Because we are not in Committee, we do not have the opportunity to have it explained to us fully and a chance to probe the Government.

The amendments that we talked about a few minutes ago envisaged that local healthwatch would be able to have local representation on the board of HealthWatch England. How will we have representatives from local healthwatch organisations—the arrangements that will be subcontracted for different functions to social enterprises— at the national level for HealthWatch England? Is this going to be board members of a social enterprise, charged with the effective running of that enterprise not the representation of the community? Will it be the staff? That comes back to the point about lay leadership that the noble Baroness, Lady Jolly, raised earlier.

Last night, I got an e-mail from an existing LINk member, with whom I have never previously communicated, saying:

“I’m much involved with my local LINk, which it can be argued, has already been ‘taken over’ by its Host in advance of the Privatisation of the Public’s voice when HealthWatch comes about. Lay ‘Volunteers’ have been demoted from being Members to Participants”—

there is the lay leadership of the noble Baroness, Lady Jolly—

“and our Management Committee has been redesignated as an ‘Advisory Group’”—

again, lay leadership—

“with few if any powers over anything. Expulsions have been initiated against those who don’t toe the new autocratic line—and the local authority just turns a blind eye despite appeals to the Council Leader, CEO and Portfolio holder. What hopes for a voice for the public/patient when Local Healthwatch is in place?”.

I believe that the Minister received a letter from another member of a local LINk who talks about his dedicated service. He lists at some length all the different bodies that he has sat on representing the public, then says that,

“My most precious resource—the time I have given—has, at a stroke, been set to nought”.

There is no local lay leadership in these arrangements. That is why these amendments are so sad.

We have to ask why the Government are doing this. Is it because some unit in the Cabinet Office has suddenly discovered this bit of the Health and Social Care Bill and said, “Oh, they have missed something out about the opportunity to introduce competition so let us put it in this bit of the Bill”? Or perhaps it is because Government Ministers have suddenly realised that the Bill is rather unpopular. There are some difficulties with it, the public’s perceptions of it are increasingly negative, so having proper patient representation would now be extremely dangerous.

[Lord Trefgarne]

My Lords, the noble Lord has been going on for a considerable period in connection with the government amendment. He now speaks about the Bill in general. That is really a Second Reading issue. This is Report. Could he indicate how much longer he intends to be?

[Lord Harris of Haringey]

Actually, I had finished my last sentence when the noble Lord stood up. I raised that because the question arises as to why the Government have introduced these amendments. Given the attitude to the whole Bill, one has to question their motivations. I hope that when the noble Baroness eventually—I assume—gives us her usual, extremely full exposition, she will explain precisely the motivation for this change, so as to indicate that the fears being expressed are totally misplaced.