Health and Social Care (Re-committed) Bill Debate
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Paul Burstow
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Health and Social Care (Re-committed) Bill
Paul Burstow Excerpts(13 years, 1 month ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Department of Health (Paul Burstow)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
New clause 10—Requirements as to transparency—
‘(1) Regulations may impose requirements on the National Health Service Commissioning Board and clinical commissioning groups for the purpose of ensuring that they are open and transparent in their decisions in commissioning health services for the purpose of the NHS.
(2) Regulations under this section may in particular impose requirements relating to—
(a) the imposition of minimum waiting times for patients,
(b) the imposition of clinical thresholds that a patient must reach before being eligible for treatment.
(3) The regulations may provide for the requirements imposed, or such of them as are prescribed, not to apply in relation to arrangements of a prescribed description.’.
New clause 11—Financial duties on clinical commissioning groups: administrative costs—
‘After section 223K of the National Health Service Act 2006 insert—
“223L Financial duties on clinical commissioning groups: administrative costs
(1) The Board must direct clinical commissioning groups to ensure that their expenditure on administrative costs does not exceed a prescribed percentage of their resource.
(2) The Board must ensure that the total national limit on clinical commissioning groups expenditure on administrative costs in any year from April 2014 does not exceed 55 per cent. of the total spent on administrative costs by primary care trusts in the financial year 2009-10.”’.
New clause 12—Secretary of State’s duty as to education and training—
‘After section 1F of the National Health Service Act 2006 insert—
“1G Secretary of State’s duty as to education and training
For the purposes of improving the quality of patient care, the Secretary of State has a duty to maintain a comprehensive, multi-professional education and training system for health professionals and to ensure the continued professional development of all staff delivering NHS services.”’.
New clause 13—Providers’ duty as to education and training—
‘For the purposes of improving the quality of patient care, all providers of services for the purposes of the health service have a duty to contribute towards the maintenance of a comprehensive, multi-professional education and training system for health professionals and to ensure the continued professional development of all their staff delivering health services.’.
New clause 14—Duties of clinical commissioning groups as to persons for whom they are responsible—
‘After section 3B of the National Health Service Act 2006 insert—
“3C Duties of clinical commissioning groups as to persons for whom they are responsible
(1) A clinical commissioning group has responsibility for persons who usually reside in the clinical commissioning group’s area.
(2) Regulations may provide that for the purposes of this section a clinical commissioning group also has responsibility (whether generally or in relation to a prescribed service or facility) for persons who—
(a) were provided with primary medical services by a person who is or was a member of the clinical commissioning group,
(b) have a prescribed connection with the clinical commissioning group’s area, or
(c) are provided with primary medical services by a member of the clinical commissioning group.
(3) The power conferred by section 3(1B)(b) must be exercised so as to provide that, in relation to the provision of services or facilities for emergency care, a clinical commissioning group has responsibility for every person present in its area.
(4) Regulations may provide that section 3(1A) does not apply—
(a) in relation to persons of a prescribed description (which may include a description framed by reference to the primary medical services with which the persons are provided);
(b) in prescribed circumstances.
(5) The duty in subsection (1) does not apply in relation to a service or facility if the Board has a duty to arrange for its provision.”.’.
New clause 16—Distribution of health service functions—
‘(1) The Secretary of State may direct the NHS Commissioning Board, or a clinical commissioning group, to exercise any of his functions relating to the health service which are specified in the directions.
(2) The functions which may be specified in directions include functions under enactments relating to mental health and care homes.’.
New clause 17—Secretary of State’s directions to health service bodies—
‘(1) The Secretary of State may give directions to any of the bodies mentioned in subsection (2) about its exercise of any functions.
(2) The bodies are—
(a) the NHS Commissioning Board; and
(b) clinical commissioning groups.
(3) Nothing in provisions made by or under this or any other Act affects the generality of subsection (1).’.
New clause 18—Care Quality Commission: duty as regards stability of existing NHS services—
‘The Care Quality Commission, in exercising its functions, must have regard to the need to avoid existing NHS services, including but not restricted to, emergency care, intensive care, chronic and complex care, teaching, training and research or case-load, becoming viable or unstable due to an unplanned reduction in income or caseload.’.
New clause 20—Clinical commissioning group commissioning work: public function—
‘The Secretary of State must issue directions to clinical commissioning groups which will ensure that commissioning work is predominantly retained as a function by staff directly employed by the clinical commissioning group.’.
New clause 23—Chief environmental health officer for England—
‘(1) The Secretary of State shall appoint a Chief Environmental Health Officer for England.
(2) The Chief Environmental Health Officer for England shall give advice to and report to the Chief Medical Officer for England on all such aspects of environmental and public health as are relevant to the public health functions referred to in section 2A of the National Health Service 2006 Act and the duties referred to in section 2B of that Act.
(3) The Secretary of State shall report to Parliament annually on the work of the Chief Environmental Health Officer for England.’.
Amendment 1222, in clause 1, page 2, line 2, leave out ‘promote’ and insert ‘provide or secure a’.
Amendment 1223, page 2, line 3, leave out from ‘must’ to ‘improvement’ in line 4 and insert ‘provide or secure a comprehensive Health Service designed to promote’.
Amendment 1239, page 2, line 4, after ‘improvement’, insert ‘and to ensure improvement’.
Amendment 1176, page 2, line 7, leave out subsection (2) and insert—
‘(2) The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.’.
Amendment 1224, page 2, line 8, leave out ‘secure that services are provided’ and insert ‘provide or secure, either directly or indirectly, services’.
Amendment 48, page 2, Leave out lines 10 to 12 and insert—
‘(3) The services so provided must be free of charge.’.
Amendment 1174, page 2, line 10, after ‘services’, insert ‘so’.
Amendment 1175, page 2, line 10, leave out ‘as part of the health service in England’.
Amendment 1177, page 2, line 12, at end insert—
‘(4) For the purposes of this Act “the health service in England” is defined as those services provided under section 3 of this Act.’.
Amendment 1240, in clause 2, page 2, line 17, leave out ‘with a view to securing’ and insert ‘so as to ensure’.
Amendment 1241, page 2, line 23, leave out ‘with a view to securing’ and insert ‘so as to ensure’.
Amendment 1212, page 2, line 33, at end insert—
‘(5) In discharging the duty under subsection (1) the Secretary of State retains the power to create a new NHS trust or provider organisation.’.
Amendment 1169, in clause 3, page 2, line 38, leave out from ‘State’ to end of line 40 and insert ‘, so far as is consistent with the interests of the health service, must exercise the functions conferred by this Act so as to secure—
(a) that inequalities between the people of England with respect to the benefits that they can obtain from the Health service are reduced, and
(b) a continuous reduction of inequalities between the people of England with respect to the outcomes achieved for them.
‘(2) The Secretary of State must publish and lay before Parliament an annual report detailing the progress which has been achieved in discharging this duty, and the means by which the Secretary of State intends to fulfil this function in the following year.’.
Amendment 1183, page 2, line 38, leave out ‘have regard to the need to reduce’ and insert ‘act with a view to reducing’.
Amendment 1197, page 3, line 1, leave out Clause 4.
Amendment 1194, in clause 5, page 3, line 16, leave out ‘have regard to the need to’.
Amendment 1242, in clause 9, page 5, line 32, at end insert—
‘(h) promoting co-operation between each of the authority’s relevant partners.’.
Amendment 1243, page 5, line 35, at end insert—
‘(4A) For the purposes of this section each of the following is a relevant partner of a local authority—
(a) where the authority is a county council for an area for which there is also a district council, the district council;
(b) the police authority and the chief officer of police for a police area any part of which falls within the area of the local authority;
(c) a local probation board for an area any part of which falls within the area of the local authority;
(d) a youth offending team for an area any part of which falls within the area of the local authority;
(e) a clinical commissioning group for an area any part of which falls within the area of the local authority.
(4B) The relevant partners of a local authority must co-operate with the local authority in the making of arrangements under this section.’.
Amendment 5, page 5, line 43, leave out Clause 10.
Amendment 1178, in clause 11, page 7, line 15, leave out from ‘Subsections’ to ‘apply’ and insert ‘(1), (3) and (4) of section 3C’.
Government amendment 49.
Amendment 1172, in clause 14, page 9, line 35, after ‘blood’, insert ‘, haematopoietic stem cells’.
Amendment 1173, page 9, line 37, after ‘tissue’, insert ‘, haematopoietic stem cell’.
Government amendments 50, 51 and 54.
Amendment 42, in clause 20, page 16, line 34, at end insert—
13DA Duty of the Board as to commissioning of services
In carrying out its duties in respect of the commissioning of services the Board must in the exercise of its functions have regard to the interdependency of services and the impact that the arrangements for the provision for one service may have on the financial and clinical sustainability of other services.’.
Amendment 1198, page 17, leave out lines 12 to 19.
Amendment 1184, page 17, line 21, leave out ‘have regard to the need to reduce’ and insert ‘act with a view to’.
Amendment 1185, page 17, line 23, leave out ‘reduce’ and insert ‘reducing’.
Amendment 1186, page 17, line 25, leave out ‘reduce’ and insert ‘reducing’.
Amendment 1187, page 17, line 36, leave out ‘act with a view to enabling’ and insert ‘have regard to the need to enable’.
Amendment 1188, page 18, line 4, after ‘functions’, insert ‘have regard to the need to’.
Amendment 1195, page 18, line 17, leave out ‘have regard to the need to’.
Government amendment 60.
Amendment 1203, page 19, line 28, at end insert—
13OA Duty as regards stability of existing NHS services
The Board must not exercise its functions, in particular in respect of section 13I (Duty as to patient choice) or 13K (Duty to promote innovation) in a way which could lead to existing NHS services, including but not restricted to, emergency care, intensive care, chronic and complex care, teaching, training and research, becoming unviable or unstable due to an unplanned reduction in income or case-load.’.
Amendment 46, page 22, line 12, at end insert—
‘(1A) The Secretary of State must publish guidance to the Board, to which the Board must have regard, about the exercise of its powers under subsection (1).’.
Amendment 1167, page 24, line 16, at end insert—
‘Duty to reduce bureaucracy
132ZA Duty to reduce bureaucracy
‘(1) The Board must exercise its powers so as to reduce administrative costs in the NHS.
(2) For that purpose the Board must exercise its duties under 14A and 14C to ensure that at no time there exist more clinical commissioning groups than there were primary care trusts on 1 April 2011.’.
Government amendments 67 and 68.
Amendment 1206, page 26, line 41, at end insert—
223E1 Financial duties of the Board: needs-based allotments
(1) The Board must make allotments to clinical commissioning groups based solely on the need of the population served by each commissioning group.
(2) The Secretary of State may give directions as to how the needs set within subsection (1) are determined.’.
Amendment 1218, in clause 22, page 27, line 17, at end insert ‘provided that the members of a clinical commissioning group cannot consist entirely or mainly of persons who are providers of primary medical services under section 83(2).’.
Amendment 1211, page 27, line 22, at end insert—
‘(c) shall be co-terminus with the social services local authority, unless it is notified by the relevant health and wellbeing board, and the local authority, that they approve an area which is not co-terminus.’.
Government amendments 70 and 71.
Amendment 43, in clause 23, page 34, line 20, at end insert—
14PA Duty of clinical commissioning groups as to commissioning of services
In carrying out its duties in respect of the commissioning of services each clinical commissioning group must in the exercise of its functions have regard to the interdependency of services and the impact that the arrangements for the provision for one service may have on the financial and clinical sustainability of other services.’.
Amendment 1189, page 35, line 2, leave out ‘have regard to the need to reduce’ and insert ‘act with a view to’.
Amendment 1190, page 35, line 3, leave out ‘reduce’ and insert ‘reducing’.
Amendment 1191, page 35, line 5, leave out ‘reduce’ and insert ‘reducing’.
Amendment 1192, page 35, line 22, leave out ‘act with a view to enabling’ and insert ‘have regard to the need to enable’.
Amendment 1193, page 35, line 36, after ‘functions’, insert ‘have regard to the need to’.
Amendment 1196, in clause 20, page 36, line 3, leave out ‘have regard to the need to’.
Amendment 1230, in clause 23, page 36, line 7, leave out from ‘consortium’ to ‘that’ in line 8 and insert ‘has a duty to secure’.
Amendment 1231, page 36, line 16, leave out from ‘consortium’ to ‘that’ in line 17 and insert ‘has a duty to secure’.
Amendment 37, page 36, line 36, at end insert—
14YA Duty as to conflicts of interest
(1) Each clinical commissioning group must exercise its functions so as to ensure that any conflicts of interest, and personal and prejudicial interests are dealt with.
(2) The Secretary of State must issue guidance on how conflicts of interest and personal and prejudicial interests should be dealt with by clinical commissioning groups as part of their decision making.’.
Amendment 1204, page 36, line 36, at end insert—
14YA Duty as regards stability of existing NHS services
Each clinical commissioning group must not exercise its functions, in respect of section 14U (Duty as to patient choice) or 14W (Duty to promote innovation) in a way which could lead to existing NHS services, including but not restricted to, emergency care, intensive care, chronic and complex care, teaching, training and research, becoming unviable or unstable due to an unplanned reduction in income or case-load.’.
Amendment 41, page 36, line 43, leave out from second ‘are’ to end of line 44 and insert ‘fully consulted—’.
Amendment 45, page 38, line 22, at end insert—
‘(1A) The Secretary of State must publish guidance to commissioning consortia about its exercise of powers under subsection (1), to which each commissioning consortia must have regard.’.
Amendment 1181, page 38, line 26, at end insert—
‘(3) For the avoidance of doubt it is hereby declared that nothing in this section authorises a clinical commissioning group—
(a) to disregard any enactment or rule of law, including but not limited to section 1(3), or to override any person’s contractual or proprietary rights; or
(b) to charge for anything the group does in the exercise of its powers under this section which relates to any accommodation, service or facility of a type to which section 3(1) applies; or
(c) to charge for anything in relation to the exercise of its functions under section 3 or 3A.
(4) A clinical commissioning group shall exercise the powers specified in section 7(2)(f) only after consulting (to the extent that it appears to it to be practical) any person who appears to it to have an interest through its own previous research in the ideas or intellectual property in question as to whether it should exercise them and, if so, as to any financial arrangements.
(5) A clinical commissioning group shall demonstrate in its annual report under section 14Z3 how the exercise of its power conferred by subsection (1) has not interfered to a significant extent with the performance by the group of its functions.
(6) Income raised by a clinical commissioning group as a result of the exercise of powers under this section shall be specified in its annual accounts, referred to in its annual report under section 14Z13, and paid annually to the Secretary of State.’.
Amendment 1250, page 41, line 38, at end insert—
‘(6A) If the opinion of a Health and Wellbeing Board given to the clinical commissioning group under subsection (5) is that the Health and Wellbeing Board does not consider that the draft takes proper account of each joint health and wellbeing strategy referred to in that subsection, and if the clinical commissioning group does not so consider it, the group shall inform the Health and Wellbeing Board, whereupon it may report to the Secretary of State that it does not consider that such a plan takes proper account of any such strategy and the Secretary of State may require the clinical commissioning group to carry out such further consultation with the Health and Wellbeing Board as he considers appropriate, or may make a final decision on the plan and require the Commissioning Board or the clinical commissioning group to take such action, or desist from taking such action, as he may direct.’.
Amendment 1171, page 42, line 23, at end insert—
‘(3) If in the Board’s opinion, having considered any opinion submitted to it by a Health and Wellbeing Board under 14Z12(1)(a), the plan published by the clinical commissioning group does not take proper account of each joint health and wellbeing strategy published by the Health and Wellbeing Board which relates to the period (or any part of the period) to which the plan relates, the Board must instruct the clinical commissioning group to revise its plans under 14Z10(1).’.
Amendment 1202, page 42, line 23, at end insert—
14Z12A Power of Referral of Commissioning plans to the Secretary of State
(1) If the Health and Well-being Board is of the opinion under section 14Z12(1) that a plan published by the CCG under section 14Z9(6) or 14Z10(2) and which is submitted to it in accordance with section 14Z9(6) and 14Z10(3) or 14Z11(4) or (8), does not take proper account of any relevant joint health and wellbeing strategy it may refer the matter to the Secretary of State for a decision.
(2) Regulations under this section may provide for the mechanism by which such referrals are made.’.
Amendment 38, page 43, line 9, at end insert—
‘(ab) section 14YA’.
Amendment 1199, in clause 24, page 49, line 35, leave out from beginning to end of line 37 on page 50.
Amendment 1213, page 50, line 27, at end insert ‘and must consult with local Health and Wellbeing Boards prior to any decision on this matter with a view to securing their agreement.’.
Amendment 1255, in clause 27, page 53, line 5, leave out ‘the Secretary of State’ and insert ‘Public Health England’.
Amendment 1256, page 53, line 6, leave out ‘an’ and insert ‘a suitably qualified’.
Amendment 1257, page 53, line 20, after ‘authority’, insert ‘, reporting to the Chief Executive of that authority,’.
Amendment 1253, page 53, line 21, at end insert ‘, and will be accountable to—
(a) the local authority, and
(b) the Secretary of State for Health.’.
Amendment 1258, page 53, line 21, at end insert—
‘(2A) The individual so appointed is to be employed by Public Health England, which shall have responsibility for their professional qualification and development.’.
Amendment 1259, page 53, line 30, after ‘authority’, insert ‘or Public Health England’.
Amendment 1254, page 53, line 42, leave out ‘consult’ and insert ‘obtain the agreement of’.
Amendment 1260, page 53, line 42, leave out ‘the Secretary of State’ and insert ‘Public Health England’.
Amendment 7, in clause 29, page 54, line 30, at end insert—
‘(3) This section comes into force on a date to be specified by order by the Secretary of State.
(4) The time specified in subsection (3) must be after such time as the Secretary of State is satisfied that the workforce education and training functions of strategic health authorities are being fulfilled by another body.’.
Amendment 1237, page 256, line 31, leave out Clause 299.
Amendment 1238, page 257, line 29, leave out Clause 300.
Amendment 47, in clause 304, page 261, line 19, at end insert—
‘(1A) Section 29 comes into force in accordance with sections 29(3) and (4).’.
Amendment 1245, in schedule 2, page 269, line 21, leave out from ‘consortium’ to end of line 24.
Amendment 1244, page 269, leave out lines 25 to 29 and insert—
‘(3) The arrangement must include provision for the functions of the clinical commissioning group to be exercised by, and only by, its employees on its behalf.’.
Amendment 1249, page 269, leave out line 29.
Amendment 1234, page 269, line 29, at end insert—
‘(4) Nothing in paragraph (3) shall authorise the inclusion of any provision for any of such functions to be exercised by—
(a) any of the clinical commissioning group’s members who hold or benefit from contracts to provide primary medical services under section 83(2); or
(b) individuals who have been employees of such members; or
(c) by a governing body, committee or sub-committee which consists entirely or mainly of such members.’.
Government amendments 292 to 299.
Amendment 1170, in schedule 4, page 278, leave out lines 35 and 36 and insert—
‘(a) omit “Strategic Health Authorities” and insert after “(a)”— “the National Health Service Commissioning Board”, and
(b) omit “Primary Care Trusts” and insert after “(b)” — “Clinical Commissioning Groups”.’.
Amendment 1247, page 281, line 10, at end insert—
‘(2A) Regulations made under this section must specify that—
(a) direct payments can not be made in respect of the whole or part of a course of private health care or in respect of insurance premiums which have the purpose of providing healthcare, and
(b) direct payments can only be made in respect of services which NICE has specified are services that can be provided by the health service, having particular regard to safety, efficacy and cost-effectiveness.’.
Amendment 1248, page 281, line 23, at end insert—
11A In section 12C (Direct payments pilot schemes) omit subsection (8).’.
Amendment 31, in schedule 23, page 417, leave out lines 18 to 21.
Amendment 32, page 418, line 34, leave out lines 5 to 8.
Paul Burstow
I rise to support the Government’s amendments and to explain the Government’s thinking on the amendments tabled by Opposition Members and other Members in the House. This large group of amendments covers a range of key clauses that enable us to deliver on a number of key tenets of the Bill: first, an NHS led by clinicians; secondly, an NHS with quality at its heart; thirdly, an NHS that is open and collaborative; and, fourthly, an NHS with clear, stronger political accountability. It is on the last point that I would like to start my remarks today.
The role of the Secretary of State has been the subject of great debate, especially in recent weeks. It is right that we should have this debate and it is a very important issue, especially given its particular complexity, but let us ensure that the debate is based on the facts. Too often, opinions have been offered and accusations made without full knowledge of what the Bill does and does not do.
Let me start by clearly setting out what the Bill does not do. First, it is absolutely not the Government’s intention in this Bill to allow the Secretary of State to wash his hands of the NHS. The Government believe in a comprehensive, tax-funded NHS that is free at the point of use, based on need and not ability to pay. Nothing in this Bill will change that. Secondly, I want to reassure hon. Members that there is no question but that the vast bulk of NHS-funded health care will continue to be delivered by NHS bodies that are bound by law and their constitutions to remain as public sector bodies and to fulfil a primary duty of providing services to the NHS. Indeed, the Bill contains a new provision—for the first time—specifically to prevent any future Secretary of State or NHS bodies from acting to promote the private sector over the public sector.
Let me turn to what the Bill does. It ensures not only that the Secretary of State will remain politically and legally accountable for a comprehensive health service but that he will retain the capacity to intervene where necessary to ensure that a service is provided.
Let me start with the accountability of the Secretary of State. Not only does the Secretary of State retain a raft of specific duties that mean he cannot wash his hands of the NHS but the Bill retains the legal requirements that services should be free of charge except where already specified. It now includes requirements, too, on securing continuous improvement in the quality of services, on promoting research and the use of evidence learned from research and, for the first time ever, on the need to have regard to the need to reduce health inequalities.
Helen Jones (Warrington North) (Lab)
Will the Minister explain to the House why, rather than providing a duty to act to reduce health inequalities, the Bill requires bodies only to have regard to health inequalities? It is quite possible to have regard to them and to do nothing to reduce them.
Paul Burstow
There is a clear duty on the boards to act, too, and I ask the hon. Lady why the Labour Government, in 13 years, chose not to do anything about that matter. There was never a legal duty of any sort in the past and we now have clear duties on all the bodies and on the Secretary of State. Of course, I shall come on to talk about the mandate, which has a role to play, too.
Andrew George (St Ives) (LD)
I merely wish to seek clarity from my hon. Friend on some of the briefings that his Department has been putting out about the duty to provide, to which he has referred already. Those briefings indicate that there was somehow no provision in the National Health Service Act 1946 for a duty on the Secretary of State to provide. I wanted my hon. Friend to acknowledge that section 1(1) states
“and for that purpose to provide or secure the effective provision of services in accordance with the following provisions of this Act.”
Equally, the National Health Service Act 1977 contains the same reference to the
“purpose to provide or secure”.
The requirement to provide or secure is repeated throughout all the Health Acts.
Paul Burstow
I am grateful to my hon. Friend for that intervention. If he listens carefully to what I am saying, he will hear that I am developing an argument that will go towards answering that question. Rather than trying to answer it in a very small way now, I would rather answer it in a comprehensive way through reference to what I had planned to say to the House.
As I was saying, hon. Members should ask themselves how the Secretary of State would be able to wash their hands of the NHS while simultaneously being legally required to deliver on all the duties I have just outlined. Crucially, the Secretary of State also retains the duty to promote a comprehensive health service, which dates from the Act that founded the NHS in 1946 and has been unchanged by this Bill. The Secretary of State will also have the duty to secure that services are provided for that comprehensive health service and will have failed in that duty if they are not.
The Secretary of State also has the ability—the obligation, in fact—to set goals and priorities for the NHS through the mandate. That will set out what the Secretary of State wants the NHS to deliver, which will be updated every year. It will be widely consulted on and Parliament will scrutinise it, for the first time ever giving Parliament a detailed say in what the NHS is tasked to deliver.
The Secretary of State has further powers in addition to the mandate to impose standing rules by which the NHS commissioning board and the clinical commissioning groups must operate, which will be subject to scrutiny and control by Parliament—a power Parliament does not currently have. What is changing, however, is the Secretary of State’s relationship with the NHS in terms of the role of Ministers in the commissioning and provision of services to the NHS. The Government believe that it should not be the job of Ministers to provide directly or commission NHS services, either. It should be the role of front-line professionals, who should have the freedom to focus on driving up quality of care, free from interference by Ministers in operational decisions—something that all parties in this House have said that they want to see.
We understand that all Government legislation has a responsibility to foresee the unforeseeable, to ask questions about the worst-case scenario and to ensure that the answers stand up to scrutiny. That is why this Bill contains a number of back-stop provisions to make it absolutely certain that any future Secretary of State will not be able to turn a blind eye to failings of service provision, so we have ensured that the Secretary of State has the power to step in if the board, or Monitor, is failing to deliver on its duties, including any duties imposed on the board through the mandate.
Finally, in the event of a significant emergency such as a pandemic, the Secretary of State will have powers to direct any commissioner or provider of NHS services.
Owen Smith (Pontypridd) (Lab)
In the event where there is not an emergency, will the Minister confirm that under the new provisions the Secretary of State will not have the power, as he has, to direct a commissioning group to do what he thinks is appropriate for the people in that area?
Paul Burstow
No, he will not have powers of direction. Of course, powers of direction are not subject to any form of parliamentary scrutiny and can be issued by a Secretary of State by fiat. In future, this House, through regulations, will be able to look at and agree—or not—standing rules that in most effects will have the ability to direct clinical commissioning groups and the NHS commissioning board on a wide range of matters. I direct the hon. Gentleman to clause 17, which sets those out at great length.
Simon Hughes
I am listening very carefully and, as my hon. Friend knows, we have had conversations and a wider debate about this issue. I understand what he is saying about the specific power of the Secretary of State both to act and to direct if things are failing, but does he accept that some of us would still like to be persuaded that the best way of enunciating the fundamental duty at the beginning of the legislation is not to say that the principal job is to secure the provision of the services of the NHS but to write in that it is to provide them? The back-stop encompassing statement, as it were, would mean that we could be sure that the duty rested with the office holder of the role of Secretary of State in England at any one time.
Paul Burstow
I am grateful to my right hon. Friend for having given me the opportunity to talk about this at some length, and I want to give him some reassurance. However, it is hardly a back-stop to have in clause 1 something that is not what the Secretary of State on a day-to-day basis actually does. It is a back-stop to say that when things fail, the Secretary of State should be able to exercise those functions to make sure that things are put right. I would like to say a bit more about that now.
I want it to be clear that we do not envisage the Secretary of State having to intervene other than in exceptional circumstances. Nevertheless, the measures are the legislative back-stops in the Bill and it is right that they are there to protect the comprehensive nature of our NHS and to provide reassurance. To answer my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) directly, there are a number of ways in which the Secretary of State could secure the provision of services. In particular, he could impose requirements on the NHS commissioning board and clinical commissioning groups using both the mandate and the standing rules. He could establish, and has the powers to do so, a special health authority, and could direct it to carry out any NHS function. That power has been used in the past to establish NHS Direct—a service-providing organisation. Also, he could intervene, including by replacing the management and directing them in the event of a significant failure. Those measures are the belt and braces in the Bill to make absolutely sure that the NHS and the public are protected from all eventualities. We have ensured that the Secretary of State’s powers are sufficient to ensure that a comprehensive NHS is provided, including through the public sector, rather than simply relying on existing providers and the market.
The position is clear: we are giving the NHS more freedoms and autonomy—something that many of us in the House have for many years argued should take place—and we are increasing its accountability. We are making watertight the obligations to provide a comprehensive health service that is free to all, based on need and not ability to pay.
John Pugh (Southport) (LD)
Will the Minister confirm that the Secretary of State will retain his powers to create new hospital trusts and that the Bill does not change that power ?
Paul Burstow
The power to establish NHS trusts is contained in previous legislation. The Bill provides for, in due course, the repeal of the provision to establish NHS trusts. As we indicated in our response to the NHS Future Forum, that will not take place for several years to come. Regardless of that, however, the Secretary of State will retain the power to establish special health authorities that can exercise a provider function.
Rosie Cooper (West Lancashire) (Lab)
The Minister just said that the Secretary of State will have the power directly to remove the management of hospitals or provider organisations. Will that apply both to NHS and private providers? Will the Secretary of State’s reach go that far?
Paul Burstow
We discussed yesterday at some length the role of Monitor and its powers through the licensing regime, which will apply not just to NHS public sector providers but to private and voluntary sector providers. The powers there are extensive and I recommend that the hon. Lady should look at the debate we had yesterday.
Another issue that comes up is the duty of autonomy. Amendment 1197, which was tabled by my hon. Friend the Member for St Ives—not all of Cornwall—(Andrew George), seeks to remove clause 4, entitled “The Secretary of State’s duty as to promoting autonomy”. This clause was highlighted by the legal team advising 38 Degrees about the changes to the role and functions of the Secretary of State. The specific purpose of the autonomy duty is to free front-line professionals to focus on improving outcomes for patients rather than looking up to Whitehall. It does not undermine the overarching duty to promote a comprehensive health service, nor enable Ministers to abdicate responsibility for the NHS.
It is our view that the legal opinion published by 38 Degrees overstates the effect of clause 4. The opinion suggests that the court will expect the Secretary of State to demonstrate that any steps he took that interfered with the autonomy were “really needed”, or “essential”, and that no other course of action could be followed. This is not the Government’s intention and we do not believe that that is the effect of the clause. It would be sufficient for the Secretary of State to demonstrate that he had reasonable grounds for concluding that a course of action was the most effective way to act in the interests of the health service and fulfil a duty imposed on him by, for example, clause 1 or a new section 1A in the Bill.
Paul Burstow
I will give way to my right hon. Friend the Member for Bermondsey and Old Southwark and then I shall make some progress because this is a very big group of amendments.
Simon Hughes
I am very grateful and I will not keep the Minister long. I have listened very carefully, as colleagues will have done, to my hon. Friend’s extremely reassuring comments. If he and the Secretary of State are committed to working on some wording that will alleviate concerns at the beginning of the Bill, I know that my colleagues and I will be very happy to work with him.
Paul Burstow
I am grateful to my right hon. Friend. I can say no more than I have said and I think I have said what is necessary to make the Government’s intentions clear. Of course, I will now give way to my hon. Friend the Member for St Ives, who has been so diligent in tabling so many amendments.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. We must have shorter interventions, as we have a lot to get through. Hon. Members should not take advantage of the Minister’s generosity in giving way.
Paul Burstow
I am grateful for your protection, Mr Deputy Speaker. I will take that as advice in relation to further interventions.
I have heard my hon. Friend’s comments and I think he needs to look again at what I have said. I have been very clear that we are listening and that, if necessary, we will offer clarifications or further amendments, and I am very happy, as is the Secretary of State, to carry on those discussions.
There are a number of amendments regarding other duties on the Secretary of State that I believe would not improve the drafting of the Bill. Amendments 1240, 1241, 1169 and 1183 seek to revise the duties of quality and inequality. I know that the amendments are well meant, but they would make the duties undeliverable. The Secretary of State cannot improve quality and reduce inequalities in isolation, and the duties have to reflect that. Amendment 1194 is unnecessary as the Bill already recognises the need to promote research and the use of research evidence, and creates, for the first time, responsibilities for taking a whole-system approach to achieving this. Amendments 1184 to 1193, 1195, 1196 and 1198 seek to change the extent of similar duties on the board and the clinical commissioning groups. Each of the board’s and clinical groups’ duties has been drafted to ensure that the duty is suitably strong, realistic and appropriate.
Let me address the role of the Secretary of State in relation to another issue that has been misunderstood—charging. I want to be very clear that nothing in the Bill enables the board or clinical commissioning groups to charge for services provided as part of the comprehensive health service. Services will remain free at the point of need, except where legislation specifically allows for charges to be made—for example, prescription charges and charges for dentistry. The Government have also committed not to introduce any new charges.
Amendment 48, tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas), who is not in her place at the moment, would prevent charges from being imposed for any service provided by the NHS. It has always been possible for Ministers to provide for charges for certain health services. There are limited provisions for charging even in the original NHS legislation introduced by Nye Bevan and the Labour Government of 1946. Under the current system, there are extensive exemptions: about 60% of the English population do not pay prescription charges, but—it is an important but—NHS charging raises over £1 billion a year of revenue that is ploughed back into services for patients, and it does make an important contribution to the overall affordability of the NHS. Therefore, I cannot accept the amendment.
The hon. Member for Brighton, Pavilion also tabled several amendments on direct payments. The amendments are unnecessary and too restrictive. Amendment 1247 would restrict direct payments to being spent on services approved by the National Institute for Health and Clinical Excellence. The great opportunity of personal budgets is that they allow people in areas where less medicalised services are provided to have much greater control over aspects of their care—those community-based services that are so important in maintaining the quality of life for many people with long-term conditions.
Finally, amendment 1248 would remove the power to extend direct payments nationally following the pilots, which are continuing. The Health Act 2009 provided that direct payments could be extended with the active agreement of Parliament using the affirmative procedure, and that seems a perfectly reasonable way of having a parliamentary check over the outcomes of the pilots that will be reported to the House next year. Amendment 1247 would prevent direct payments from being used for private health care or health insurance. The amendment is unnecessary. NHS funds could never be used to pay people’s private health insurance premiums.
I shall now turn to education and training. We have already committed to introduce at a later stage in the Bill’s proceedings an explicit duty for the Secretary of State to maintain a system for professional education and training. Work is ongoing and an amendment will be tabled in the House of Lords. That will be more effective and more precise than the long-term measure of simply blocking the abolition of strategic health authorities, so amendments 7 and 47 will not do.
Our vision of a modern NHS has clinical commissioning at its very heart. We want clinicians, GPs, nurses and other health care professionals to have the autonomy to commission innovative new services, and to have the true responsibility that the previous Government denied them. That involves striking the right balance between freedoms for clinical commissioning groups and their essential responsibilities to other parts of the health care service.
We made many changes in response to the recommendations of the NHS Future Forum report. We always wanted clinical commissioning groups to have a robust set of governance arrangements, to involve a wide range of other professionals and to be transparent in how they conducted their business, and we have now further strengthened those parts of the Bill so that they are very much improved.
As I said at the start of my remarks, I should like to speak briefly to a number of amendments, as I am conscious that many other hon. Members wish to speak. First, I will address some amendments that are very similar, if not identical, to those that we had the opportunity to debate at least once, and possibly twice, during the first stage of the Committee and in the re-committed Committee.
Amendment 1181, which is like amendments 45 and 46, seeks to restrict clinical commissioning groups’ powers to raise additional income. As was explained in Committee, those amendments are unnecessary. The Secretary of State has already published guidance, which can be easily updated, specifically on the powers to generate income, which applies to current NHS bodies, including primary care trusts.
Amendments 37 and 38 are on conflicts of interest. We have listened to the concerns that were expressed in the listening exercise and made changes, so the Bill already requires clinical commissioning groups to make provision for dealing with conflicts of interest.
Amendments 31 and 32 would prevent any property currently held by PCTs or strategic health authorities from being transferred to any provider that is not a public authority. As we said in Committee, we have no intention of giving away NHS property to private companies. That will not be the case and, given the safeguards that are in place, it cannot happen.
Several amendments have sought to probe accountability within clinical commissioning groups. I repeat what we said in Committee. A clinical commissioning group is not able to delegate its statutory responsibilities for carrying out its functions. It cannot palm them off or pass them on to others. Amendment 1245 would limit representation on CCG committees and sub-committees, preventing those clinical commissioning groups from inviting other professionals and experts to participate—something that we were told during the listening exercise was widely welcomed and wanted.
Amendment 1249 restricts the use of sub-committees—an essential part of any organisation with a wide range of functions. Similarly, amendment 1234 would prevent GPs or their employees from working on behalf of a clinical commissioning group, which would be a severe constraint on those groups’ ability to function. Amendment 1244 would prevent a clinical commissioning group from delegating its functions to anyone other than its employees. That would make it very difficult for those groups to carry out their statutory functions effectively.
New clause 20, tabled by my hon. Friend the Member for St Ives, similarly would restrict the support that clinical commissioning groups can draw on. We want to allow those groups to access the best support and advice available—to be able to work with local authorities, third sector organisations and charities, research organisations and the independent sector. I mentioned in Committee several times, and it is worth repeating, that the support organisation established by the Neurological Alliance is proving of invaluable assistance to commissioners, and amendments such as new clause 20 would prevent it from doing the work it does for the clinical commissioning groups. I can follow the intention behind the amendments, but I hope my reassurances about the final responsibility—the statutory responsibility—for decision making in clinical commissioning groups resting with their members and the governing body are clear.
There is a raft of amendments dealing with the relationship between local authorities and commissioning groups. We want that to be a dynamic relationship, with constant dialogue and collaboration, which is precisely why the Bill proposes the establishment of health and wellbeing boards. Amendments 1202, 1171 and 1250 would introduce a new, centrally imposed procedural requirement on health and wellbeing boards and clinical commissioning groups. Clinical commissioning groups will have a duty to have regard to the relevant joint health and well-being strategy.
Where commissioning plans vary significantly from the joint strategy, the group will need to justify or consider amending its plans. Health and wellbeing boards also have the power to refer their views and concerns to the NHS commissioning board when they feel that the plans have not had proper regard to the joint health and well-being strategy. That indicates to the NHS commissioning board that the health and wellbeing board believes the CCG is actively failing to fulfil its duties. Anything further would undermine the important balance that needs to be struck in what is fundamentally a partnership relationship between two organisations that have separate sets of sovereignties and responsibilities.
The importance of that partnership approach highlights why it would be impossible to create an obligation on clinical commissioning groups to act alone to secure integration of services. How can one body decide to integrate with another against the wishes of the other? A duty cannot be imposed on one side unless the relationships exist that will allow that to take place. That can be achieved only by both parties working together, and for that reason amendments 1230 and 1231 do not contribute to that relationship’s working well.
Amendment 1211 seeks to make the clinical commissioning groups coterminous with local authorities. We have accepted the NHS Future Forum’s recommendation that the boundaries of local clinical commissioning groups should not normally cross those of local authorities, with any departure needing to be clearly justified as part of the establishment process set out in the Bill.
Amendment 1213 would prevent a clinical commissioning group that had received a reward under the quality premium from using that money without first securing the agreement of the local health and wellbeing boards. That would severely limit the CCG’s freedom to spend its quality payment as it saw fit. Health and wellbeing boards will shape commissioning priorities through the joint health and well-being strategy, by being consulted by the CCG on their commissioning plans. Under the duties set out in proposed new section 14Z14 of the National Health Service Act 2006, the NHS commissioning board must also consult each relevant health and wellbeing board in making its annual performance assessment of those CCGs.
Rosie Cooper
Great play keeps being made about consultation. I do not hear any play being made about the right to be heard or a right of veto, or whatever. CCGs can ask the health and wellbeing boards what they think; health and wellbeing boards might make a recommendation, but there is no obligation for anyone to listen.
Paul Burstow
The hon. Lady is completely wrong when she says that there is no obligation. There are clear duties in the Bill for health and wellbeing boards’ views, and their preparation of joint strategies on health and well-being and joint strategic needs assessments, to be legally binding documents, in the sense that CCGs must have regard to them. They are not pieces of paper that can be just tossed aside and dismissed. They are very important documents in the emerging system.
Steve McCabe (Birmingham, Selly Oak) (Lab)
A number of us are trying to understand what will trigger some kind of higher-level arbitration if it becomes abundantly clear to a significant group of people in a local community that the health and wellbeing board’s view is not being properly considered by the CCG. At that point, when there is a clear conflict, how will that conflict be exposed so that the Secretary of State or someone else clearly arbitrates so that there is fairness, not lip service? A lot of people are anxious about that.
Paul Burstow
That anxiety was expressed in Committee by some Opposition Members. As a result of the NHS Future Forum’s recommendations, we have put in place further checks to ensure that those concerns are allayed. Not least of those—as well as our view that the health and wellbeing boards should have on them a majority of elected councillors—is that they will have clear rights of membership from the local healthwatch, which will be listening to the wider community and will represent those wider concerns. They will have the views and expertise of the director of public health, the director of adult social services and the director of children’s services. If they feel that the strategy that they have all agreed is not being honoured in the commissioning strategy, they can ultimately refer that matter to the NHS commissioning board, and that can lead to changes being made.
Helen Jones
Many of us are concerned that we will not know properly what is going on in CCGs, because there is no requirement for them to be subject to the Public Bodies (Admission to Meetings) Act 1960 and to meet in public. They can decide whether to meet in public. How on earth is accountability to be maintained if those bodies can decide in private—[Hon. Members: “No, they can’t.] Yes, they can. They can decide in private how they will consider input from the health and wellbeing boards, and what they will do about it. Where is the line of public accountability?
Paul Burstow
I fear that, unfortunately, the hon. Lady might well have dusted down an old copy of the Bill, before the Future Forum made its recommendations and we made amendments to make it absolutely clear that a CCG’s governing board must meet in public. That is the decision-making body. Moreover, we also require those boards to set out in detail and publish all their decision-making arrangements—unlike PCTs, whose decisions could be made in private and no one would know.
Let me move on to health and wellbeing boards influencing commissioning decisions. Other people have questioned why we should have a quality premium at all. Indeed, amendment 1199 would remove the NHS commissioning board’s ability to reward CCGs financially for the quality of services—I emphasise that—and the outcomes that they secure, or reductions in health inequalities, which is something that all hon. Members across the House want to be promoted. That is the basis on which we want things to move forward, and high-quality services should be recognised and rewarded.
With amendments made in the second Bill Committee, we made it absolutely clear that such payments will provide an incentive to CCGs to focus on improving quality and outcomes. We will work with patients and professional groups to draft the regulations to reinforce that clear undertaking, which was made as a result of listening.
Paul Burstow
I am conscious of the time, and the fact that other hon. Members want to move and speak to other amendments. If the hon. Gentleman will forgive me, I will make a bit more progress.
Paul Burstow
I am talking about my hon. Friend’s amendment, so I will, of course, give way.
Andrew George
I am grateful to the Minister for giving way to me, as he is referring to my amendment. I think that I understand what the Government are trying to achieve here, but in order to assess properly what quality and outcomes are, that assessment must not be pre-empted. The purpose of my amendment is to ensure that good quality and outcomes are not rewarded too early after treatment, before people can make a proper assessment and know the long-term impact of a new procedure.
Paul Burstow
My hon. Friend makes a fair point—one that, I think, we would agree with entirely. That is why the Government published, for the first time ever, an outcomes framework for the NHS that is all about considering how clinical care leads to the sort of longer-term outcomes that he seeks, so I hope that that addresses his comments. That will be built into the way in which we go forward with drafting the regulations to reinforce that approach.
On the stability of services, my hon. Friend has tabled amendments 1203 and 1204 and new clause 18, which link very closely to Opposition amendments 42 and 43 on the interdependency of services. My right hon. Friend the Secretary of State spoke to two similar amendments that my hon. Friend moved yesterday. We agree with hon. Members about the need to secure continued access to services for patients. We have introduced substantial new proposals to improve on our previous plans. However, I repeat what my right hon. Friend said yesterday: this is not about securing access to the same services in perpetuity. That has never been the case, and it should not be the case. Services evolve, and we must allow new providers—whether NHS, social enterprise or private sector—to come in where they can deliver high-quality care for patients.
I shall turn now to excessive prescription and a number of issues that arise from several amendments, which would tilt the balance in a way that would turn the system much more into a command-and-control one than many hon. Members have argued that we should have for many a year. Amendment 1218 would break a fundamental principle at the heart of our proposals: that the membership of CCGs should consist solely of GPs, and that we should encourage, rather than prescribe, how they involve other professionals.
Amendments 1237 and 1238 would remove the Secretary of State’s power to make transfer schemes for property, staff, rights and liabilities, thus making it less flexible to make transfers from, for example, a PCT to a CCG. I am well aware that many people feel that the ability to transfer staff in that way is an essential part of managing a smooth transition. Therefore, to deny the Secretary of State the ability to do that seems very odd. Amendment 1167 is unnecessary for the same reason. CCGs are different entities from PCTs, with different structures, duties and functions. It does not make sense to set a limit on the number of CCGs by comparison with PCTs.
Opposition amendment 5 would delete clause 10, but Opposition new clause 14 would reinstate it, so it is a sort of hokey-cokey set of proposals, whereby a provision would be taken out and then put back in again. As the Bill includes a power to make regulations to take account of people in specific circumstances, new clause 14 and amendment 1178, which is consequential on it, are unnecessary.
New clause 11 would require the NHS commissioning board to limit the administration spend of CCGs individually and collectively by comparison to 2009-10. In other words, it would set an arbitrary starting line and effectively lock the budgets that way. An absurd shackling of the NHS commissioning board or CCGs in that way belies common sense and sound financial governance.
Amendment 1206 runs the inherent risks, as discussed in Committee, of trying to prescribe the setting allocations in legislation. I understand the concern expressed by my hon. Friend the Member for St Ives (Andrew George), and the White Paper made it clear that we want to ensure that access in every part of the country is fair and equitable. We will want to ensure that that is achieved, and I am happy to continue to discuss those issues with my hon. Friends.
Amendment 1167 is unnecessary for the same reason. CCGs are different entities from PCTs, with different structures, duties and functions, and it would not make sense to set limits in such a way. The additional statutory provisions set out in new clause 10 are also unnecessary. Imposition of a minimum waiting time would not take account of the clinical needs of individual patients, and it is for clinicians to plan care on the basis of the clinical needs of patients and their right to access the best service.
We are considering how best to prevent PCTs from imposing clinically inappropriate blanket minimum waiting times, but there are already sufficient powers in the Bill to address the issue when it comes to CCGs.
Amendment 41 is also about consultation and transparency. We have already changed the Bill to enhance the duty on CCGs to involve and consult the public, but the commissioners must have sufficient flexibility to be proportionate in how they involve patients and service users. CCGs will not be able to use that flexibility to underplay their duty to involve the public.
I want to discuss a section of the Bill that I know concerns some of my hon. Friends and which perhaps was not much discussed in Committee—public health. A number of amendments are relevant here. New clause 23 would create the role of a chief environmental health officer. The chief medical officer, however, is already able to provide the very advice that the new clause would establish a new role to provide. The chief medical officer can provide independent advice on environmental health issues. At a time of financial stringency, the new clause would create a layer of wasteful bureaucracy.
Amendments 1253 to 1260 relate to the role of directors of public health. Our position is that they should be employed by the local authority to support local government in the new role that the Bill confers on local authorities in respect of public health.
Fiona O'Donnell (East Lothian) (Lab)
The Minister and the Government are fond of pausing with this Bill. I want to offer him the opportunity to pause as he comes near to the end of this long list of amendments and apologise to the many health organisations and patients organisations across the country for the anxiety and concern that he and his Ministers have caused.
Paul Burstow
I am sure that as people read the transcript of the debate they will wonder why that intervention came at this point, other than to make a cheap party point. It is one that many Members of the House will know has set the tone for much of the Labour party’s contribution to debate on the Bill.
I was about to discuss an important issue, which is how we improve the health of our nation through our public health services. Returning to amendments 1253 to 1260 and the role of director of public health, we are having discussions about how best to ensure that the director of public health has an appropriate status within the local authority. There is concern about who directors report to and are accountable to. We intend to return to that matter once the consultations are concluded to make that absolutely clear, and to address those concerns.
Mr Stephen Dorrell (Charnwood) (Con)
Will my hon. Friend repeat the statements that were made in a Select Committee hearing about the status of directors of public health? Is it the Government’s view that, at the very least, they should encourage—and preferably make mandatory—the status of a director of public health as a senior officer of the local authority, not reporting through any other senior officer of the authority?
Paul Burstow
My right hon. Friend is right to remind the House of the clarifying statement that was made before his Select Committee. That is what we want to encourage. We are listening to the results of the consultation exercise at the moment. Such people should be officers who report to the council and to the chief executive. Those are the issues that we are considering, and we will return to the matter.
Amendment 1254 would require the local authority to obtain the agreement of the Secretary of State before dismissing its director of public health. Our view is that as the local authority is the employer, it is not appropriate for the Secretary of State to intervene directly. The Bill already requires local authorities to consult the Secretary of State before dismissing a director of public health, so there is a safeguard already built into the legislation.
Amendment 1256 would require the director of public health to be suitably qualified. It is important to be clear that, as the Bill sets out, the director of public health must be jointly appointed by the Secretary of State, who can ensure that only appropriately qualified individuals are appointed. The amendment is therefore unnecessary.
Paul Burstow
My hon. Friend the Member for Bradford East (Mr Ward) is right. That is why the outrage was expressed as it was. This part of the Bill and the schedule have the same effect as the Public Bodies (Admissions to Meetings) Act 1960. That Act does not say in a blanket way that every meeting must be held in public. It allows local authorities to exercise judgment about confidentiality. We are applying the same principles in that regard in exactly the same way as to PCTs, with the additional provision that for the first time all these arrangements must be published.
Owen Smith
I am grateful to the Minister for that further intervention, just as I assume that he is grateful for the intervention of the civil servants in the Box, who must have passed him a note. Clearly, he was not aware of that earlier. When he said that CCGs must meet in public, he was under the impression that that was the case.
Paul Burstow
Is it still the Opposition’s policy to seek a division between the role of commissioning or purchasing health services and the provision of those services? Does the hon. Gentleman believe in that split?
Owen Smith
Yes. The current situation is clear: the Secretary of State has a legal duty placed upon him in the legislation to secure and provide—not just to promote—a comprehensive health service in this country, and to issue direction to PCTs and SHAs, such that they so do. Those two crucial aspects of the current legislation are being changed in the Bill, and I intend to discuss them in a moment.
In version 1 of the Bill, the Government were less coy, because it actually excised section 1 of the original 1977 Act. After the deluge of criticism, however, they decided that they needed to put it back in, making it explicit, as they put it, that the Secretary of State will be responsible, as now, for promoting a “comprehensive health service”.
Section 1 of the Act was duly reinstated, as was the duty to promote, but there was a critical change, in clause 1(2) of the new Bill, which diluted the traditional duty to provide and secure. Ultimately, it placed a duty on the Secretary of State only to
“exercise the functions conferred by the Act so as to secure that services are provided”.
I shall come on to the reason why that is significant, but equally significant and allied to it was the retention—against the advice of Opposition Members and many others—of clause 10, which amends section 3 of the 2006 Act, thus keeping commissioning bodies, not the Secretary of State, as the parties with a legal duty to provide health care in England.
The net effect of those changes—despite what the Minister said earlier, and despite what the Secretary of State has said on several occasions, including notably on Second Reading—is no change. The Secretary of State is still, as the Minister put it, washing his hands by divesting himself not of the NHS but of a direct duty to provide a comprehensive health service. That is the distinction which the Minister failed to make today. The Secretary of State is palming off that precious duty, which has been placed upon successive Secretaries of State, and handing it on, via the mandate, to a quango and to unelected commissioning bodies.
Owen Smith
With respect, there is not a legal duty on the Secretary of State to provide, as there has been in successive health Bills. When Bevan talked about hearing the bedpan dropped on the ward in Tredegar, he did not mean that he wanted to pick it up. [Interruption.] I do not know whether the Secretary of State wants to listen. Bevan did not mean that it needed to be picked up by the Secretary of State, but he certainly meant that he would like to be able to direct those responsible operationally for picking it up so to do.
The critical difference in this Bill is that the Secretary of State will divest himself of not only the duty to provide that service, but the power to direct the operational parts of the NHS, save for—[Interruption.] The Minister is waving his head, nodding or something; I know what he is going to say. Under the Bill, save for in cases of crisis or emergency, the Secretary of State will not have responsibility for running the day-to-day operations of the NHS.
Paul Burstow
The hon. Gentleman is wrong again. Unlike the previous Government, who were happy to have directions that did not have any parliamentary accountability, this Government are putting in place the ability, through regulations, to set the standing rules for the NHS, which, as set out clearly in clause 17, include all the issues that the hon. Gentleman is concerned about and show that the Government are committed to ensuring that there is a comprehensive health service.
Owen Smith
As the Minister has just confirmed by omission, there will be no power to direct and therefore no power to deliver absolutely a comprehensive, universal health service as we have come to expect and understand it. Those are the key differences. [Interruption.] The Minister can shake his head, but that is an accurate interpretation of what has happened.
Owen Smith
I am grateful to my hon. Friend for that intervention. As she will know, the Government have no mandate for any of these things—they were not in the manifesto, the election or the coalition agreement. There is a mandate, but not one to effect these sorts of changes. That is another disgrace given how large the changes are.
I am going to move off this issue, but I will conclude by reading back to the Government their own words, which make it absolutely clear what they are doing in getting rid of direction. Paragraph 66 of the explanatory notes states:
“Currently, the Secretary of State is directly responsible for providing or securing the provision of all health services as set out in the NHS Act, a function which is largely delegated to Strategic Health Authorities and Primary Care Trusts…However, the new commissioning structure proposed by the Bill means that this would no longer be the case.”
The explanatory notes also state that
“functions in relation to the health service are conferred directly on the organisations responsible for exercising them”.
Effectively, the Secretary of State will move on and his focus will shift to public health.
Paul Burstow
I want to be absolutely clear about this. The hon. Gentleman is happy with an arrangement that allows the Secretary of State to make directions to the NHS that do not require him to come to this House to account for his actions—is that correct?
Owen Smith
The Minister has not said it before in a public realm of which I am aware. He certainly did not say it in the Public Bill Committee, all 40-odd sessions of which I feel I sat through. The Minister knows that the issue is crucial, because the Future Forum that he commissioned said so. Indeed, it said that
“one of the most widely voiced criticisms of the proposed changes was a deeply felt concern at the risks to healthcare education and training in England posed by the fast pace of change.”
The Government responded by saying:
“we will introduce an explicit duty for the Secretary of State to maintain a system for professional education and training as part of the comprehensive health service.”
We are still waiting. What will that duty look like? [Interruption.] The Minister says “We have said that we are going to do it”, but here we are, eight months and 1,500 amendments later. How long must we wait? Are we sure that we will see the duty introduced in the House of Lords? Are we positive about that? I must say that I am not certain about it.
Paul Burstow
The shadow Minister rarely criticises the Government for telling the House again what they said in the response to the Future Forum, which is that we would introduce that explicit duty. We will introduce it in the House of Lords, as I have told the House today. We are committed to doing so, having listened carefully to the concerns of NHS professionals.
Owen Smith
The very simple question to be asked is “Why the delay?” Why could the Minister not have introduced it earlier? We have known about the problem for eight months and more. The Secretary of State, who has been keen on changes such as this for a long time, must have given some thought to what he was going to do about staff training and work force planning in the NHS.
Valerie Vaz
No, I will not.
I again ask the Secretary of State for Health what discussions he has had with the Cabinet Secretary about the change regarding accountability for the public money that will be transferred—£60 billion of it—to those quangos. If he is asked questions about this in the House he will say that it is an operational matter.
I want to show hon. Members what the scenario will be like, because this is already happening in my constituency and this is what it will be like throughout England. The out-of-hours GP and urgent care service provider Waldoc has just lost the contract to provide out-of-hours services after 16 years, without a right of appeal to the strategic health authority and despite a patient satisfaction rate of 95%. When the contract was lost and staff turned up to find out whether they had jobs, they did not even know whether they would have a job the next day. That is how they have been treated. This has been happening in most PCTs, as some Members will know from their constituencies. People have left, vital expertise has gone and no one from the Government side has been able to give us a figure for the redundancy costs. When I asked the Minister how much this whole reorganisation would cost, he said he did not know the figure and that there was no new money. That must mean that money has come out of services.
We have, however, had a figure—£1.4 billion—from Professor Kieran Walshe of Manchester university. No wonder waiting times have gone up. Members of the public need to know that in an increasing number of areas, consortia will be conducting competitive tenders in which, potentially, foundation trusts, the constituent members of consortia and commercial providers will be bidding. Clearly, there will also be a conflict of interest. It has been estimated that a single procurement process can cost from £5,000 to £30,000. That is a waste of public money, and the whole regime of procurement is a waste of costs.
Valerie Vaz
What is so extraordinary is that the Secretary of State does not want to be the Secretary of State; he wants to let the Future Forum consult and listen to people, but that is not how decisions are made in government. In government people hear the evidence from all sides—[Interruption.] I have made it pretty clear: the Minister has had his time, but I am a Back Bencher and I do not get much time to speak.
People in government hear the evidence from all sides and weigh things up. Then they make a decision reasonably and give their reasons. The Secretary of State is hiding not only behind the Future Forum but behind the NHS commissioning board. He is like Macavity the mystery cat:
“At whatever time the deed took place—MACAVITY WASN’T THERE!”
I would like to draw hon. Members’ attention to a paper dated 29 August 2011 by Dr Lucy Reynolds, Dr John Lister, Dr Alex Scott-Samuel and Professor Martin McKee, “Liberating the NHS: source and destination of the Lansley reform”, which I will place in the Library. It draws a link between a paper written in 1988 by the right hon. Member for Wokingham (Mr Redwood) and the Minister of State, Cabinet Office, the right hon. Member for West Dorset (Mr Letwin). It is therefore no surprise that when the Minister of State, Cabinet Office was called in to look at the proposals he endorsed them, because they were his. Paragraph 3 of the paper is entitled “Implementation of the Redwood/Letwin Plan in the Lansley reform”. The paper was sent to me by a young academic who said that his life had been saved twice by the NHS but would not have been saved under an American-style privatised health system.
The most recent satisfaction survey by Ipsos MORI last March showed 72% public satisfaction with the NHS, but it was not published by the Department of Health even though the Department had asked for it to be done. Members will have seen a report from Colin Pritchard and Mark Wallace which said:
“In cost-effective terms, i.e. economic input versus clinical output”,
the UK health service was “the most cost-effective” in reducing mortality rates, compared with the US health care system.
Finally, I say to hon. Members—including the hon. Member for Hexham—as they think about what has been said, “Stand up for democracy, stand up for the trust between elected representatives and their constituents, and stand up for the NHS: vote against this Bill.”
Joan Walley
My hon. Friend is right. Constituents go to Members of Parliament as a last resort to try to ensure fairness in how the system deals with everything. I have just had a high-profile case in my constituency relating to the postcode lottery, which my hon. Friend the Member for Pontypridd (Owen Smith) referred to.
Paul Burstow
The hon. Lady is making some important points and is trying to respond to that raised by the hon. Member for West Ham (Lyn Brown). Interestingly, the hon. Member for Leicester West (Liz Kendall) earlier recounted all her concerns about the PCT and how it has dealt with GP services in her area. The anxiety seemed to be that the PCTs were not accountable, but the hon. Member for Stoke-on-Trent North (Joan Walley) now seems to be saying that they are.
Joan Walley
We have just had an awfully long debate about precisely that issue. Many of us would say that the PCTs were not operating accountably, but Members of Parliament could have influence and bring pressure to bear. The last resort is through the Secretary of State, and it is important that that should be retained in the Bill.
Andrew George
It is a great pleasure to follow the hon. Member for Stoke-on-Trent North (Joan Walley), who addressed the issue of political accountability in a considered way. I shall return to that and relate it to a number of amendments in my name and those of some of my hon. Friends. I shall refer to a number of amendments that the Minister of State, my hon. Friend the Member for Sutton and Cheam (Paul Burstow) covered in his opening remarks and dealt with in a fair and balanced manner, although not entirely to my satisfaction in every case. I shall also raise further questions.
I have enormous respect for all that my hon. Friend has done. His contribution to the debate on social care is second to none. That expertise is especially beneficial to the Government at present and some important advances have been made, for which we are all grateful. I acknowledge that he approaches all aspects of his work with the best of intentions, and I do not question those. The amendments that I have tabled indicate that I believe we may need to reconsider some of these issues. I should also mention at this stage that I may seek to push one or two of them to a vote.
On Second Reading, I made a speech that was critical of the Bill and refused to support the Government by abstaining at that stage, and of course the Bill has gone through a number of significant changes since then and concessions have been made. I have been criticised by some for making that speech and refusing to support the Government, but I feel vindicated as a result of the pause and the listening exercise. I might be criticised and accused of disloyalty, but that is how Back Benchers exercise our role of holding the Government to account. It is reasonable for us to use our powers to bring forward amendments and, in so doing, probe the Government and ask them to be accountable for the policies that they are bringing forward. I hope that in the weeks and months ahead, I will be vindicated for having done so, but I do not necessarily expect that acknowledgment to be provided now.
I was relatively content with the original coalition agreement. I am no great defender of primary care trusts, but I think that using the existing institutional infrastructure, grafting in accountability to the patients and communities that the commissioning bodies will serve and ensuring clinician involvement in those commissioning decisions, would strike entirely the right balance. That would provide a way of going forward without scuppering, dismantling or exploding the whole system in the way the Bill is doing.
There was no mention in the coalition agreement of changing the duties of the Secretary of State, and I have read a number of legal opinions on that issue. I also believe, as I have indicated in several interventions so far, that some of us have been misled on that point. Some of the legal advice that I have been given by colleagues suggests that the Secretary of State in fact never had a duty to provide in the 1946 Act. That is fundamentally wrong. Perhaps I will discuss this with the Minister after the debate and show him the documents that I have been given and some of the comments that have been made. As some of my colleagues who were there at the time and heard the advice will know—[Interruption.] I hasten to add that they were not there in 1946—I know that I have aged in my time in Parliament, but I cannot recollect that time. My colleagues know that we have been briefed that there was never any duty to provide in the 1946 Act, but there is evidence—I do not need to give the quote a third time—that there was clearly a requirement in the 1946 Act to provide and secure effective provision. That requirement has always been there in successive health Acts in this country. I want to relate that to a point the hon. Member for Pontypridd (Owen Smith) made in a more tribal manner.
Paul Burstow
May I just make it clear that I do not think that I or any other Minister at any point, either at the Dispatch Box or in other discussions, ever suggested that the 1946 Act or any subsequent Act did not have the duty to provide? What we have said is that the duty to provide has progressively, particularly over the past 20 to 30 years, become a duty that is not exercised. It has been delegated and is increasingly exercised instead by separate bodies, such as NHS trusts and foundation trusts, using their own independent power to provide services.
Andrew George
Yes, and my new clause 16 proposes to address that issue through an opportunity for the Secretary of State to intervene as necessary.
The Secretary of State in his intervention on the hon. Member for Pontypridd made it clear that in any case Secretaries of State tend not to micro-manage by intervening or by providing on every whip and flip, and there is no suggestion of that, but as a backstop we require the guarantee that, if all else fails and the whole system does not provide what we believe needs to be put in place to provide for a comprehensive health service, the Secretary of State will be there. There would be no harm in putting that word back in the Bill in one form or another. I do not understand the obstinacy, and in my view there is no legal impediment to the Government doing so.
Paul Burstow
I draw my hon. Friend’s attention to the Department of Health’s website. Yesterday we published a detailed response to both 38 Degrees opinions. It obviously draws on the legal advice given to Ministers and provides a full exposition of why we believe the points that I set out in my opening remarks.
Andrew George
I am grateful to my hon. Friend for that. During his remarks, he said that he believed that there was a risk that the Secretary of State might be drawn into micro-managing; that was one of his primary arguments. All I can say is that if there were a risk of the Secretary of State micro-managing, the Secretary of State could decide to do or not to do it. Simply removing the power comes back to my point about at least making sure that the Secretary of State has the ability to direct where appropriate. If the Secretary of State had that duty to provide, it would follow that he must have the powers to intervene as I have described.
Paul Burstow
My hon. Friend is making some important points, which give me the chance to underscore the important points that I have made. The Bill retains for the Secretary of State the capacity to intervene and exercise the functions of all the bodies established by it, and—in extremis, as a last resort—to make sure that services are provided. It is clear that that capacity has remained, not least in regard to the Secretary of State’s ability to establish special health authorities.
My hon. Friend is asking for back-stops, and back-stops have to be real and have effect. That is why we put them into the Bill as we have, so that the Secretary of State does have, in extremis—in the circumstances that concern my hon. Friend and others—the ability to take the steps necessary to secure and ensure that services are provided to ensure a comprehensive health service.
Madam Deputy Speaker (Dawn Primarolo)
Order. May I gently remind the Minister of two things? First, he has to address the whole House. Secondly, it is not a private conversation between him and his hon. Friend, and his interventions are supposed to be brief. A lot of people are waiting to speak.
Martin Horwood
I am extremely grateful to you for calling me, Madam Deputy Speaker, as you have a tough job this afternoon. I have to declare an interest. I rarely speak in the House on NHS organisation, particularly public health, because my wife is employed as a director of public health. Obviously, the Bill and the public health section of clause 27 will affect her significantly, and by extension those of us in her family, but I make it clear to the House that although my knowledge of her role and profession has informed amendments 1255 to 1260, which stand in my name, she had no knowledge of them or their contents before I tabled them. However, I am grateful to the Faculty of Public Health and others who have given me advice.
Public health is pretty poorly understood, not least in this Chamber at times. There is a constant tendency to confuse it with the traditional, established local authority function of environmental health, and although I have great respect for the hon. Member for Stoke-on-Trent North (Joan Walley) in many respects, I think the risk of her new clause 23 is that it extends that confusion between environmental health and public health. There are many key functions to public health, not just the vital five-a-day style health promotion and health improvement work, but a critical role in health protection, including the management of outbreaks of communicable diseases—serious diseases such as meningitis and influenza—and a key role in influencing, at the moment, NHS commissioning at local level, using population-wide data and medical analysis. That, at the moment, happens very simply and straightforwardly within the primary care trust. Under the Bill at the moment, there is no role for the director of public health within the new clinical commissioning groups, and they have to exercise that kind of influence at several removes. That point was well made by the hon. Member for Plymouth, Moor View (Alison Seabeck).
It was suggested to me at one stage by some civil servants working on the Bill that in order to make up for the gap left by the director of public health in the new clinical commissioning groups—then called consortia—they might actually want to employ someone with public health expertise to make up for the reorganisation. That does not seem to me a very good use of public money.
Some of the things that Ministers have announced are to be welcomed. I will have to skip over them briefly, but principal among them is the very good decision to make Public Health England a separate Executive agency and not part of the Department of Health. That was a key request of the faculty, and I think it is very important that it retain that status and objectivity.
I pay tribute to the Minister of State, my hon. Friend the Member for Sutton and Cheam (Paul Burstow), for taking a great deal of time and care over the concerns that I had in this whole area, but questions remain to be addressed and my six amendments are an attempt to address three main areas.
The first area is, as the hon. Member for Plymouth, Moor View pointed out, that under this scheme directors of public health will be removed from the NHS, as will their staff. One of my amendments suggests, therefore, that they should continue to be employed by Public Health England and retain that integration within a wider public health profession. At the moment directors of public health sit within primary care trusts and it is reasonably straightforward, but within the spaghetti-like structures created by the Bill, public health responsibilities and leadership are now to be split among Public Health England, the Secretary of State, the local authorities, the national commissioning board, the health and wellbeing boards and clinical commissioning groups. The threat is not just confusion and the unclear fragmentation of public health functions, but the fragmentation of the profession itself and of the career paths, whereby people might move from one bit to another and have to leave and rejoin the NHS, and so on. That is one of the issues addressed.
The second issue is that people should be suitably qualified. The responsibility for their professional qualification and professional development should lie in the hands of Public Health England, not local authority managers, who might have no medical or professional public health training. It is an important function, so they should be senior officers. Several members of the Health Committee, including its Chair, made the important point that they should report directly to the chief executive. It has been suggested in some parts of the country that the post of director of public health could be combined with or report to other directorates in the principal local authority—for instance, the director of housing.
I wrote to the Deputy Prime Minister on the issues, and he replied:
“given the importance of these new local authority public health functions, the leadership position of the DPH in the local community and the critical health protection functions to be carried out by the DPH on behalf of the local authority, we would expect the DPH to be of chief officer status”.
I do not think that an expectation is strong enough. I have great regard for many directors of housing, but if my child had meningitis, I would not want the director of housing to be on the other end of the phone line at a critical moment.
As it is still possible for the Government to address these issues through the consultation exercise on public health that is being planned, I will not press my amendments to a vote today, but I was rather disappointed with the Minister’s response to them. Should any noble Friends be listening from the Gallery, I hope they might take up the theme of public health in another place. Public health is poorly understood and has not grabbed the headlines in the way that the 38 Degrees campaign has, but over recent years it has been quietly becoming a more and more successful, professional and increasingly medically qualified discipline in the NHS. It saves lives, and we should protect it.
Paul Burstow
We have had a full and wide-ranging debate on the many issues covered by this group of amendments. I want to try to pick up a few of the key questions that have been asked. The Bill will increase the Secretary of State’s accountability for a comprehensive health service.
Paul Burstow
No, not at all.
The Bill will provide all the powers and duties necessary: the duty to keep the health service’s functions under review, a duty to report annually on the health service’s performance and a duty to consult on the board’s mandate and to lay it before Parliament and to lay regulations about how commissioners carry out their functions. All those things are new. They are more than backstops; they are guarantees of a comprehensive health service being secured and the Secretary of State maintaining his accountability to the House and Members of Parliament for that purpose.
I have already made it clear to those who are concerned about clause 4 and the possibility, which we do not accept, that it will lead to a hands-off approach that we are willing to listen to and consider the concerns that have been raised and make any necessary amendment to put it beyond doubt that the Secretary of State remains responsible and accountable for a comprehensive health service, which we all want to see.
There has been talk about a postcode lottery. Indeed, the Bill sets out, through the work of the NHS commissioning board, to ensure that the postcode lottery that we inherited from the last Government is something that we can make a thing of the past, as a consequence of the changes that the Bill will introduce.
The hon. Member for Stoke-on-Trent North (Joan Walley) made some important points about environmental health officers and the contribution they make locally and nationally. Although we see the chief medical officer having a key role in providing such advice, I would be happy for us to carry on discussions about how we can further strengthen that role nationally.
As the consultations on the issues raised today by my hon. Friend the Member for Cheltenham (Martin Horwood) carry on, I am certainly happy to discuss with him how we can address those concerns. I can assure him that, because the Secretary of State will be directly involved in the appointment process for directors of public health through Public Health England’s role, they will be able to assure themselves that they are adequately qualified.
Paul Burstow
No.
The Bill has been changed because the Government have been listening carefully. We have acted on the NHS Future Forum’s recommendations.
Our goals are clear in this Bill: they are to place patients at its heart, ensure that the service is clinically led and ensure that it is focused on driving up quality and outcomes.
Question put and agreed to.
New clause 1 accordingly read a Second time, and added to the Bill.