The Committee consisted of the following Members:
Chairs: Mr Peter Bone, Julie Elliott, † Steve McCabe, Mrs Sheryll Murray
† Argar, Edward (Minister for Health)
† Bhatti, Saqib (Meriden) (Con)
† Crosbie, Virginia (Ynys Môn) (Con)
† Davies, Gareth (Grantham and Stamford) (Con)
† Davies, Dr James (Vale of Clwyd) (Con)
† Double, Steve (St Austell and Newquay) (Con)
Foy, Mary Kelly (City of Durham) (Lab)
† Gideon, Jo (Stoke-on-Trent Central) (Con)
† Madders, Justin (Ellesmere Port and Neston) (Lab)
† Norris, Alex (Nottingham North) (Lab/Co-op)
† Owen, Sarah (Luton North) (Lab)
† Robinson, Mary (Cheadle) (Con)
† Skidmore, Chris (Kingswood) (Con)
† Smyth, Karin (Bristol South) (Lab)
Timpson, Edward (Eddisbury) (Con)
Whitford, Dr Philippa (Central Ayrshire) (SNP)
† Williams, Hywel (Arfon) (PC)
Huw Yardley, Sarah Ioannou, Committee Clerks
† attended the Committee
Public Bill Committee
Tuesday 21 September 2021
[Steve McCabe in the Chair]
Health and Care Bill
Arrangements for exercise of public health functions
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss clause 35 stand part.
As I said this morning to Mrs Murray, and I will repeat this afternoon for your benefit, Mr McCabe, it is a pleasure, particularly following the reshuffle, to still be serving under your chairmanship.
Clauses 34 and 35 would allow the Secretary of State to confer the exercise of his public health functions on NHS England or integrated care boards, and would allow those functions to be further delegated or subject to other collaborative arrangements, as defined elsewhere in the Bill.
Clause 34 substitutes proposed new section 7A for the existing section 7A in the National Health Service Act 2006, originally created as part of the 2012 health and care reforms, and amending the 2006 Act. To date, section 7A has been used to support the commissioning of key national NHS public health programmes, including our world-leading screening and immunisation programmes. The Government’s intention is that it should continue to do so. These public health services are embedded within, or have a clear affinity with, local NHS delivery mechanisms—a clear example being the delivery of childhood vaccinations by general practitioners.
Proposed new section 7A fulfils the same purpose as the original, in that it enables the Secretary of State to delegate the practical exercise of his public health functions to other bodies, but it is updated to keep pace with the thrust of the Bill and enable a wider range of delegation and collaboration arrangements. Not to do so would risk leaving public health programmes behind, with unnecessary restrictions on, for example, the range of bodies that could enter collaborative arrangements. The clause also consolidates amendments to section 7A made previously by the Cities and Local Government Devolution Act 2016 in respect of inclusion of combined authorities as bodies to which the exercise of public health functions may be delegated.
In addition, to ensure that the delegation or joint exercise of functions does not lead to reduced accountability for delivering services, we have proposed appropriate safeguards that make further provision on joint working and delegation arrangements. For example, the Secretary of State will be able to set out in regulations which functions can and cannot be delegated, impose conditions in relation to the delegation or joint exercise of functions, and specify the extent of such arrangements. Furthermore, the parties will be able to agree terms regarding the scope of the delegation arrangement. NHS England will also have the ability to issue statutory guidance in relation to functions that are being delegated or jointly exercised under those provisions. Subject to those safeguards, the clause supports the aims of greater health and care integration and a focus on improving population health outcomes.
Clause 35 introduces a new power for the Secretary of State, by direction, to confer the exercise of any of his public health functions on NHS England or ICBs. The clause, again, goes with the grain of the Bill more generally in resetting the relationship between the Secretary of State, as rightly accountable to Parliament, and an enlarged NHS England with an expanded set of responsibilities, which include direct commissioning and oversight of some health services.
The Bill is moving away from a focus purely on competition, and is instead re-emphasising the value alongside it of integration and collaboration. That includes being very clear on the role that the Government have to play. To that end, there is a suite of proposals in the Bill that assert the Secretary of State’s ability to intervene, set direction and make decisions, not as a substitute for clinical expertise, but in setting that clear direction and being accountable. I suspect that, if not on these clauses, then on those we will debate in a moment, that will come to the fore in our discussions.
Clause 35 is, to an extent, illustrative of that and relates closely to, for example, clause 37’s power to direct NHS England. As the law stands, and indeed as it would stand with the changes proposed by clause 34 alone, the Secretary of State’s ability to delegate the exercise of his public health functions effectively depends on securing agreement with the body being delegated to. That arrangement has generally worked well since its inception as part of the 2012 reforms, and as far as possible the Government intend to continue to operate in that way. However, the power gives Minsters a backstop if agreement is not reached in a timely way or is unreasonably withheld. It also enables them to give clear instructions where needed or where it would be more efficient to provide a direction rather than set up a whole arrangement.
Delay and confusion can and do affect the health of those relying on public health services, so the backstop power reflects the proper relationship, as we see it, between the Secretary of State and the public health system. It also sits alongside other mechanisms, notably regulation-making powers, in relation to local government’s exercise of public health functions. However, it is important to emphasise that directions must be published as soon as practicable, and the power would, of course, have to be exercised within the normal bounds of ministerial decision making, accountability and transparency.
Furthermore, any decision to exercise the power will be premised and guided by general public law principles and in line with the Secretary of State’s general statutory duties. Those duties will of course form part of any Secretary of State’s reasoning on whether it would be appropriate to exercise the power. In particular, they would need to consider section 2A(1) of the NHS Act 2006. As such, the Government believe that clauses 34 and 35 embody a proportionate addition to the Secretary of State’s powers.
As the Minister says, the clauses relate to public health. We might previously have anticipated that the hon. Member for Bury St Edmunds (Jo Churchill) would have fielded them, but obviously she has moved Departments. I want to take this opportunity to put on record my thanks to her for her service as Public Health Minister. We worked well together, particularly in the proceedings on the Medicines and Medical Devices Act 2021. We have disagreed over the course of our work, and that is good—disagreement is good in a democracy—but we always disagreed well. I wish her well in her new role, although I might highlight the irony that, after all the work she did in public health to reduce fizzy drinks consumption, the top of the order of business at the Department for Environment, Food and Rural Affairs at the moment is presumably trying to restore carbon dioxide supplies to get those fizzy drinks going again—I am sure she will seek for them to be sugar-free, if nothing else.
Today is also my first opportunity to formally congratulate and welcome the hon. Member for Erewash (Maggie Throup) to her new role as Public Health Minister. I have long thought that it is pretty much the best job in Government, and gives the Minister the chance to shape and improve the lives of millions, if done well. From my work with her as a near neighbour, I know that she will give the job her all. I look forward to working with her and scrutinising the work that she does.
Of course, the job of Public Health Minister has been made an awful lot harder by the preceding decade. The other day I spoke about the bill for a decade of austerity falling due, and that is manifest nowhere more than in the provision of public health services and the impact of cuts on those services. In his introduction to these clauses, the Minister characterised the legislation as protecting the status quo, but the status quo relative to where we were in 2012 is very different: public health funding for 2019-20 was down 15% on where it was prior to the changes in the 2012 Act. If we set that against a growing and ageing population and all the attendant extra spending challenges that go with that, the real-terms impact is much greater. That has meant significant cuts: a cut of nearly half for support for health at work, the place where many of us will fall sick; a cut of a quarter for NHS health checks, a core preventative tool; and a cut of a quarter for smoking cessation programmes, despite how effective they are. Of course, the areas with the greatest needs have suffered the most and experienced the greatest cuts. Those cuts do not even fall equally.
For all the talk that we hear from the Government about prevention—we see it in these proceedings, the White Paper and the Bill—the reality is that Government policy over the last decade has made things much harder for our health system by creating extra demand. That is devastating not only for those individuals who have missed out, but for the system too. There is much greater demand on our health system as a result of the decisions that we have taken, and that is sad.
We have talked a lot about the 2012 Act, and much of what we are doing in Committee is removing its provisions, because they were not very good. However, one area where there seems to be no disagreement—no suggestion from the Government or the Opposition that we might change the position—is the idea that public health should go back home to local government. That is still an area of consensus that we can build on—of course it is. It means that our excellent public health staff, spearheaded by our world-class directors, can influence not only traditional public health-type services, but the whole range of services that shape the public’s health: licensing, planning, leisure, social care and much more—all those important things our local authorities do. It is just a shame and a wasted opportunity that this period has been characterised by cuts, particularly to those with the greatest need, rather than by investment in our communities.
I shudder to think of two things. The first is the amount of time that those skilled staff have spent on what is euphemistically called “service redesign” but is actually cuts. What could that amount of wasted time have been better spent on? The second is the professionals in that field who have chosen to leave because they do not want to be part of that. That is a real shame, and has really hindered our approach to tackling public health.
The Opposition do not intend to divide the Committee on clauses 34 and 35; at the end of the day, we would much rather that public health funding was spent at a local level than at a national one. We think it will have greater impact, and frankly we can get better value from it by combining it with local services. However, I want to test the clauses a little, starting with clause 34.
What we have seen in proceedings so far—I think this is sitting 10—is that, in reality, this is not an integration Bill; it is an NHS reorganisation Bill under an integration banner. I heard the Prime Minister himself promising a further White Paper, and presumably a further Bill, on integration in the future. The Minister has said that this Bill paves the way, but this was never a paving Bill. I challenge anybody to find in the White Paper or any publication from the Government relating to this piece of legislation the word “paving”—that is, until the Minister introduced it after the Prime Minister’s rather unhelpful intervention.
We heard from the Minister himself, when explaining to the Committee why a councillor cannot chair an integrated care board, that NHS bodies do not permit councillors to do so. He is telling us that this is about NHS bodies, not about partnership bodies. These are NHS bodies; they are accountable to NHS England and they can be altered by NHS England.
It has been a settled point of public policy for the past decade that public health is delegated to local authorities, for all the good reasons I mentioned. This may well be just my understanding, but I do not want to let this clause go without testing it: proposed new subsection 7A(2) provides for the range of eligible bodies that the Secretary of State can delegate the powers to. The first is NHS England, which would make sense in the case of big, national programmes such as the ones the Minister talked about in terms of vaccination. Another is a local authority, which makes sense for all the reasons I have given.
Yet another is a combined authority, which I suspect was not a feature of the 2012 Act—I do not think, although I might be wrong, that combined authorities were yet a twinkle in a local government leader’s eye at that point. However, with a combined authority, any arrangement would surely be by the consent of its members, rather than by delegation to the combined authority itself. Combined authorities are generally skeleton structures that act as an agglomeration of interested parties, rather than significant entities in themselves, so surely a local authority would receive those powers first and then, by agreement, transfer them to combined authority level with its partners.
Finally, there is an integrated care board. What is the reason for that? If these things get delegated to local government, why would they be delegated to an NHS body? Is that not an attempt, rather than repealing the provisions in the 2012 Act that moved public health back to local authorities, to do it on a de facto basis without addressing the point? That might be an unintended consequence, so I hope the Minister will address that and say that that is not the case.
Last Thursday, we dealt with the counterpart conversation to this one. We have debated multiple times the provision for health functions of the Secretary of State or NHS England to be delegated to the integrated care boards. That is in the spirit of what this legislation is about— local decision making—but at no point was there ever a proposal for any of those functions to be delegated to a local authority or combined authority. That, again, gets to the root of the problem with this Bill, and the core reason why the Government’s frequent integration efforts stall, spin their wheels and do not go anywhere. Local authorities are not treated equally, whether that manifests in social care—a very visible inequality in our health system—or in public health, as in this case. They ought to be equal partners, but they are anything but. Again, I hope the Minister can address that issue.
I have one final point to make about clause 34, which is not something that I think could be put on the face of the Bill, but is something I would like the Minister to affirm as a principle: that if a function is delegated to a local community, all of the funding needs to be delegated to it too. Too often, national Government devolve a specific responsibility but top-slice the funding, setting local communities up to fail. As I say, I do not think that point would be on the face of the Bill, but I would be interested in the Minister’s reflections on it.
I will finish with clause 35. I listened carefully to what the Minister said, and I certainly do not want to fire the starting gun on clauses 37 or 38. We have plenty of time, so I will save those clauses for later—something Committee members will anticipate with great eagerness. However, at all points in the Bill—a Bill that is supposed to be about the devolution to local areas of powers and responsibilities to shape their communities—there is always a corresponding clause, the next one, which says, “But only if the centre likes what they do. If devolution strays too far from the core principles, we will put a stop to that.” To me, that is not what devolution is, so I am keen to hear from the Minister that that is considered an exceptional power. Frankly, I do not know why a Minister or a Secretary of State would want so broad a power, because they would do nothing else with their day; if they had to scrutinise the public health plans of 42 different communities in England, it would be a very long day. Again, I am in danger of firing the starting gun on clauses 37 and 38, so I will stop at that point.
As I say, in the case of public health, more local is better, but some elements of the Bill are not quite what they say on the tin. I would be interested in some clarification from the Minister.
The shadow Minister has made a number of serious points—I am not sure how one spins the wheels when the car is stalled, but none the less I took his point. First, at the heart of this Bill is the fact that we seek to strike the appropriate balance between what is clearly a national health service, accountable to the Secretary of State and Parliament, and local flexibilities and local integration. The debate we will have for the next two hours or so will probably be about whether we have struck that balance appropriately, but that is the core of what we are seeking to do here.
The hon. Gentleman rightly talked about the importance of local authorities in this space. He and I share a common view on that, and he is right: one of the few things in the 2012 Act that I suspect he would have agreed with was the recognition of the public health function of local authorities. We are not seeking to do anything in the Bill to undermine that function in any way. It will not surprise the hon. Gentleman to know that I believe that the Bill provides for multiple layers of integration. Within a local NHS system, at an ICB level and then at an integrated care partnership level, there will be increased integration with local authorities and others, laying the foundations for the ambitious programme that the Prime Minister set out when he spoke earlier in this Session about the health and care levy.
The hon. Gentleman spoke about combined authorities. My recollection—I may be wrong—is that they date to about 2016, rather than 2012, and my understanding of the power is that it does not go against what he was saying, but provides for the continued evolution of the system and enables that delegation to take place. In practical terms, I would envisage that, where local authorities combine and work together, they would have their own arrangements, and we are not seeking to cut across those local working arrangements.
The hon. Gentleman also talked about the ICBs, saying that they are NHS bodies and asking whether this is a threat to local authority delegation of public health functions. My reading of that is that, as I mentioned in my opening remarks on these clauses, there are some public health functions that are NHS and delegated through CCGs, such as GPs participating in child immunisation programmes—hence the reference to ICBs, because they will be replacing CCGs in the new world.
Understandably, the hon. Gentleman talked about funding for public health. On his comments about the bigger picture on funding and spending levels more broadly, I simply remind him of the note left by a previous Chief Secretary to the Treasury:
“I’m afraid there is no money.”
We cannot get away from that context in this space, but more broadly he is right to highlight the importance of public health. The past 18 months have shone a light on public health; under Governments of all political complexions, public health has not always enjoyed that prominence in public debate, external media and other commentary. One thing that I hope will follow on from the terrible events we have endured over the past 18 months is a greater understanding and appreciation of public health and its measures, and for public health to enjoy the support it needs to do its job. I think all Members would agree that one of the few positives has been the recognition of the value of public health and prevention.
I think that those were the main points that the hon. Gentleman raised. I see these clauses as permitting a further evolution of the system and a recognition of the need, ideally, where we can, to further delegate powers from the Secretary of State to lower down within the system. On that basis, I hope the hon. Gentleman and his colleagues will feel able to support the clauses.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Clause 35 ordered to stand part of the Bill.
Power of direction: investigation functions
I beg to move amendment 108, in clause 36, page 42, line 33, at end insert—
“(10) Nothing in subsection (2) supersedes Part 4 of the Health and Care Act 2021.”
This amendment will ensure nothing in new section 7D of the NHS Act 2006 about the Secretary of State’s powers to direct HSSIB supersedes what is in part 4 of the Bill.
It is a pleasure to see you in the Chair, Mr McCabe, and to see the Minister back again. We heard about his increased workload this morning; I also saw him on the Treasury Bench during the urgent question. I wonder where he finds the time—he should speak to his trade union rep if he feels there are too many demands being placed on his time. We will do our best to ensure that this afternoon is as stress-free for him as possible; if he accepts our amendments, that will go some way towards enabling that.
I will not speak for long on amendment 108 because we will be talking extensively about the Healthcare Safety Investigation Branch later on in the Bill. Concerns have been expressed in briefings received by the Committee and in evidence about some of the relevant provisions in the Bill, particularly on access to information. Clause 36 looks at the proposed power over bodies that have investigatory powers, which include HSSIB. It is difficult for us to accept the clause as it stands without having gone through all the details on HSSIB, because we cannot possibly know whether our concerns will be resolved about how it will operate in practice. That is why we have put forward amendment 108.
The amendment would ensure that the powers in clause 36 do not in any way impede the important principle that HSSIB will be an independent body established by the Bill. In conjunction with further amendments, which we will no doubt get to in part 4, we can all be confident that HSSIB’s independence is sacrosanct. That is important for not just us as parliamentarians, but everyone within the NHS who may have reason to come across HSSIB. It is also important for patients, of course, because they will ultimately be the judges of whether HSSIB has been a success. It would be helpful to understand what the approach will be in relation to maternity investigations. HSSIB has a potentially important role in identifying how providers can sustainably and systematically improve the quality of such investigations and then provide appropriate support. However, ensuring proper accountability, clarity and independence remain important, and this amendment seeks to ensure that those matters are enshrined on the face of the Bill.
I am grateful to the hon. Gentleman; I made it in rather slower time down to the Chamber to listen to the statement. After one of our sittings last week, I think the hon. Member for Nottingham North was on his feet asking a question in the Chamber before I had even made it out of this room, which shows a certain speed that I can only seek to emulate.
I appreciate that the amendment is linked to the independence of the Health Services Safety Investigation Body. The Government are clear that HSSIB will be independent, which is why it is being set up as a non-departmental public body, with a chief executive—to be known as the chief investigator—and executive and non-executive members. I hope I can reassure hon. Members that clause 36 is a temporary measure to ensure that the current Healthcare Safety Investigation Branch can continue to exist in the interim phase before the new body is established.
As I am sure hon. Members are aware, the merger of NHS England and NHS Improvement means that the NHS Trust Development Authority, of which the Healthcare Safety Investigation Branch is a part, will be abolished. We need the important investigation function that the Healthcare Safety Investigation Branch provides to continue until HSSIB is fully operational which, subject to parliamentary approval, is planned for spring 2023.
The power set out in clause 36 is designed to enable the Secretary of State to direct NHS England, or another public body, to carry out the investigation function in the interim period. I reassure hon. Members that the HSSIB will be independent. Clause 36 is not designed to infringe upon its independence and cannot be used to direct the new HSSIB in how it exercises its functions; it is there simply to ensure the continuity of current investigations until the 2023 start date. For those reasons, I ask the hon. Member for Ellesmere Port and Neston to consider not pressing the amendment to a vote.
I am reassured to some extent by the Minister’s words, but we have seen over the past 18 months that temporary powers do have a habit of becoming rather more permanent than was originally intended. I think it would be perfectly possible for the Government to include some sort of sunset clause to ensure that the intentions set out by the Minister are adhered to, but we may come back to that. As things stand, we maintain our criticisms, and it would be remiss of us not to push this matter to a vote.
Question put, That the amendment be made.
Question proposed, That the clause stand part of the Bill.
I will be brief, because I believe that in responding to the shadow Minister’s amendment I set out the intentions behind the clause and the reasons why it is drafted as it is. Notwithstanding his desire to push his amendment to vote, all I can say is that I will continue to reflect on the points he has made. I cannot promise the outcome, but I will reflect on what he said. Having made the case when I addressed the amendment, I commend the clause to the Committee.
Question put and agreed to.
Clause 36 accordingly ordered to stand part of the Bill.
General power to direct NHS England
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to debate clause 62 stand part.
I suspect that, with this, we get to the main event of this afternoon’s proceedings.
I begin with clause 37, which introduces powers for the Secretary of State to give directions to the newly merged NHS England. This merger, which is widely welcomed, of three different bodies with different accountability arrangements into one has inevitably required us to look at the appropriate accountability arrangements for the future, and the extent to which the accountability arrangements have evolved and kept up with the evolution of the organisation. The powers in the clause will ensure the appropriate balance between democratic accountability to the Secretary of State and the NHS’s clinical and day-to-day operational independence.
Clause 37 will give the Secretary of State new powers over a newly merged and larger NHS England. It does not give the Secretary of State any new powers over other NHS bodies. It gives the Secretary of State precisely no new powers over clinical decisions. The clause is about ensuring appropriate accountability mechanisms between the democratically elected Government and one of the biggest arm’s length bodies, if not the biggest. That is a principle of democratic accountability in a publicly funded national healthcare service, and I am sure it is accepted not just by the leadership of NHS England, but by Opposition Members, even if they may not feel that the clause reflects their interpretation of it.
In practice, NHS England will continue, as now, to make the vast majority of its decisions without direction, consulting the Government and others as it needs to. The Government’s primary means of shaping the NHS agenda continues to be the mandate to NHS England, which has been an established means of providing direction to NHS England since 2013.
As we have learned in recent times, events can move fast, and the mandate may not be adaptable to all circumstances—and nor was it designed to be when it was conceived. The powers in the clause are designed to supplement the existing mechanisms, such as the mandate, to give the Secretary of State the ability, where he or she deems it appropriate and in the public interest, to provide direction and to intervene in relation to NHS England’s functions. Of course, the Department’s title is “Health and Social Care”, and while NHS England will rightly continue to be focused on the NHS, the Government must take a wider view—and this wider view may lead us, on occasion, to a different conclusion about the appropriate course of action from that held by NHS England colleagues.
There is already a strong and close working relationship between Ministers and NHS England. The clause helps to formalise that in a way that is more transparent for everyone to see, building in the normal expectations of ministerial decision making and accountability by requiring Ministers to issue directions in writing, and to ensure they are published and made in the public interest. Any decision to exercise this power will be premised and guided by general public law principles and broader statutory duties.
To ensure the NHS’s continued clinical and day-to-day operational independence, proposed new section 13ZD also sets out specific areas where the power of direction in section 13ZC cannot be used. The Secretary of State is unable to use this power to intervene in the appointment of individuals by NHS England, in individual clinical decisions or in relation to drugs or treatments that the National Institute for Health and Care Excellence has not recommended or issued guidance on.
We believe that clause 37 is crucial for ensuring that we have the right framework for national oversight and accountability of our health system, and of one of the largest arm’s length bodies, responsible for over £130 billion of public money. The clause ensures, in proposed new section 13ZE, that appropriate levers are in place—as there are for other arm’s length bodies—for Ministers to respond and take swift action if NHS England fails to carry out any of its functions. It also ensures, in proposed new section 13ZF, that Ministers have the levers they need to direct NHS England to provide information. Without it, we would be expanding the functions, responsibilities and powers of NHS England without ensuring that there are appropriate accountability arrangements in place for this large integrated body.
The changes that clause 37 introduced are proportionate, in our view. They reflect the evolution of NHS England in recent years, changes to the wider system and the appropriate expectations on Government to support, challenge and steer the system, while also leaving it free to determine operational matters.
Clause 62 amends the National Health Service Act 2006 by repealing the duty on the Secretary of State and NHS England to promote autonomy. The rationale for doing so comes is two parts. First, the response to the pandemic has further highlighted the importance of different parts of the health and care system working together in the best interests of public and patients. By repealing the duty to promote autonomy, the clause further enshrines integration and collaboration at the heart of the legislative framework underpinning the system.
The second reason for repealing that duty is to ensure compatibility with the duties elsewhere in the Bill on NHS organisations, including NHS England, to consider the effects of their decisions on the better health and wellbeing of everyone, equality of care for patients and the sustainable use of NHS resources. To avoid any conflict in duties, it is important to remove NHS England’s duty of autonomy, as these new duties require NHS England to co-operate and work closely with other partners, rather than autonomously. Repealing the duty of autonomy will also make it easier for NHS England to facilitate co-operation within the system—when commissioning services or issuing guidance, for example.
Neither the provisions in clause 37 nor those in clause 62, or indeed anywhere else in the Bill, do anything to change the nature of NHS England as an arm’s length body. I hope that I can reassure the hon. Member—I fear that I may not—that the removal of these duties does not mean that Ministers are about to start interfering in the NHS or in any other body exercising functions relating to the health service.
Integration is at the heart of the Bill. By creating integrated care boards and removing unnecessary bureaucracy that can get in the way of local organisations wanting to work together, we are putting more power and autonomy in the hands of local systems, and that is our intention here. We are seeking to strengthen local leadership and empower local organisations to make decisions about their populations. We believe that both clauses not only support that intention, but strengthen it, and I commend them to the Committee.
The Minister rightly pointed out my mixed metaphor, so I will undertake to avoid metaphors in this contribution. It is hard not to feel like an undercard to the main event here—that is a simile, of course, rather than a metaphor, and I gave no such undertaking on similes.
I might surprise the Minister by agreeing with bits of what he said: we do not intend to divide the Committee on clause 37 and we do think that there is an important distinction between the powers in clauses 37 and 38, which I think will come out in the debate. However, if we went out to Parliament Square now and straw-polled people walking by, asking them who they thought was responsible for the NHS in England at a national level, I think we would wait a very long time before anyone gave any answer other than the Government and, by extension, the Secretary of State.
And of course the Minister, through appropriate delegation, and we are all the better for it. The Minister can quote me on that—but not on a political leaflet, as that would be very challenging for me.
Covid has shown that the public think that the politicians they elect are accountable for the decisions taken in the interests of their health, however they might manifest in ordinary life, so I think the repeal of the duty to promote autonomy, set out in clause 62, probably follows inevitably from that. We want an expert-run health service that works together and follows the best available evidence and science, not one that is unaccountable and diverges from the interests and expectations of the public at large.
That leads me nicely to clause 37. It is possibly a tautology to say that if someone is held responsible for something, they ought to have responsibility for it, as the clause set outs. To put that bluntly, with more than £100 billion of spending—40% of the Government’s revenue budget—going into that area, people will expect political accountability. If NHS England is not seen to be acting in the public interest at the highest possible levels, there ought to be a mechanism, by exception, to correct that. It is the exceptional part that is really important.
That is defined negatively in the clause by what the Secretary of State may not do—for example, hiring or firing an individual, which I think is right, or directing the healthcare of a specific person. I do not think the Secretary of State would want to be in that position with important cases of individuals who are in the public sphere, or have the ability to act outside NICE guidelines on drugs or treatment, as happens in such cases. I do not think that is a good system, hard though it may be when prominent cases come to our attention.
That gives us a common-sense reading of what these clauses provide for the Secretary of State. Yes, the buck stops with the Secretary of State and his political colleagues as a collective if there are major failings in the health service or major failings of Government and of leadership, but the clause does not give Ministers carte blanche to pick and choose—undoubtedly with political pressures in mind—whether to involve themselves in the detailed running of the service. I think that will be covered in clause 38.
A concern raised by the Nuffield Trust in evidence was that there should be a stronger mechanism by which such decisions can be scrutinised. Will the Minister address that? I heard what he said about publication of information about the Secretary of State’s decisions, but why not provide for a parliamentary mechanism by which decisions could be scrutinised? That would ensure public confidence that there is no Executive overreach or direction at a low level of how our healthcare service operates, which I do not think would be at all desirable. I hope that the Minister will address that in his remarks.
I would like the Committee to take a moment to mourn the loss of the principle of autonomy as a guiding driver of the health service over some 20-plus years. That principle is part not just of the Lansley reforms, but of previous Labour reforms, and indeed of reforms by the Government before that. The idea was that the system would become more efficient and responsive with more autonomous units, rather than a great mass of health authorities, hospitals and systems that are rarely understood by local people, and that the competition of autonomous units would drive financial and service efficiency, for example. This is quite a moment, and I do not think we should just let it pass.
When I was a member of a primary care trust, which I may have shared earlier, our local region had “earned autonomy.” That meant that if we did certain things particularly well—bringing waiting times and waiting lists down, or fulfilling financial balance requirements, for example—the local team, board and chief executive would earn more autonomy to do more. In modern parlance, things became more permissive, and they were trusted to do something.
I am a little confused, because my hon. Friend is talking about the end of autonomy, but everything we have heard from the Government is about how permissive the Bill is and how it will leave people free to make their own decisions. I must be missing the point somewhere, mustn’t I?
I am grateful to my hon. Friend for making that point, which we will come on to when we discuss the following clauses. If there is no autonomy, but we are trying to be permissive, we come back to the vexed issue that the Minister alluded to earlier: where the balance lies between national and local accountability. We will come to that in further clauses.
I will not long mourn the loss of autonomy—I am not sure it really worked—but it is a principle for people to locally manage the units. As I said in relation to financial management in a previous session, if it is very clear that a chief executive or a finance director has responsibility for their bottom line, that drives a certain amount of focus and responsibility. I find it a little extraordinary for the Conservative party to be promoting the lack of autonomy. I hope hon. Members will take a moment to reflect on the seismic change we now have in the direction of our public services and the next era of the NHS.
There are a few points that I will seek to address. I am grateful to the hon. Member for Nottingham North for highlighting the accountability of the Secretary of State—he also highlighted me. I remind colleagues that in my ministerial capacity, as a junior Minister, I am in legal terms but an extension of my Secretary of State; all the powers are vested in him and I am but a legal extension of him. Colleagues may dwell on that as they wish, but possibly not too much.
The hon. Member for Nottingham North set it out well. If we went out into Parliament Square and asked three dozen people who they believe is accountable for the NHS and the delivery of health services in this country, they would say it was the Government, or possibly the Secretary of State or the Prime Minister. I think that is right, and that is why we must ensure that the accountability is reflected in the responsibility and the ability to exercise that responsibility and accountability over how the NHS operates.
On the promotion of autonomy, as the hon. Member for Nottingham North alluded to and as I set out, if we are seeking to promote integration and co-operation, as the Bill does, that therefore sits slightly ill with a duty to promote autonomy, and this is about how we reconcile those two matters in legislative language. He talked about a parliamentary mechanism in this context. I emphasise the need for the directions to be published in writing and to be in the public interest.
As we know, such documents are always able to be debated in the House. Were something to be done that he thought inappropriate, I can bet my bottom dollar that I would be standing at the Dispatch Box answering an urgent question from him 24 or 48 hours later. There are mechanisms in this House by which Ministers can be held to account for decisions they make. That is why I believe that this move aids transparency. Rather than informal conversations and discussions, as happen in any organisation, the clause will require that, where a disagreement occurs, there is a clear direction for it to be published transparently, for shadow Ministers and others in this House to question and challenge it, or to raise, within or outwith the House, their concerns in front of the public.
The hon. Member for Bristol South quite rightly alluded to how PCTs operated. Like her, I sat as a non-executive member of a PCT board. I remember those days. If I remember correctly, not only did she sit on a board; she also has extensive experience in running healthcare services as a senior leadership figure within the local NHS, so she knows of what she speaks.
I do not think that what we are seeing here is quite as the hon. Lady characterises—a huge change in the direction of our party’s policy or the direction of travel. We are putting in place a pragmatic and sensible measure, to reflect the focus now on a duty to co-operate, which a duty of autonomy sits slightly ill with, as I say, and to make sure that we have clear accountabilities. We recognise in theory and in legislation what is already deemed by the public to be there in reality, which is the accountability of the Secretary of State and the Government.
Question put and agreed to.
Clause 37 accordingly ordered to stand part of the Bill.
Reconfiguration of services: intervention powers
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss the following:
Amendment 102, in schedule 6, page 180, line 12, at end insert—
“relevant Health Overview & Scrutiny Committee” means any Health Overview and Scrutiny Committee in an area to which the proposal for a reconfiguration of NHS services relates.”.
This amendment is consequential on Amendment 103.
Amendment 103, in schedule 6, page 180, line 41, at end insert—
“(3A) Before taking a decision under sub-paragraph (2)(a), the Secretary of State must—
(a) consult all relevant Health Overview & Scrutiny Committees, and
(b) have regard to, and publish, clinical advice from the Integrated Care Board’s Medical Director.”.
This amendment would require the Secretary of State to consult any relevant Health Overview and Scrutiny Committee (as defined by Amendment 102), and to have regard to and publish clinical advice from the ICB Medical Director, before intervening in local service reconfiguration.
Amendment 104, in schedule 6, page 180, line 43, at end insert—
“(aa) publish a statement demonstrating that the decision is in the public interest,”.
This amendment would require the Secretary of State to publish a statement demonstrating that any decision they have made on a reconfiguration proposal is in the public interest.
That schedule 6 be the Sixth schedule to the Bill.
If I may, I will turn to the amendments first and then the substantive clause. I am grateful to hon. Members for tabling the amendments. I said that the previous clause was coming to the main business of the afternoon, but I now suspect that was but an hors d’oeuvre to the discussion we may have on this clause and this set of amendments.
Amendments 102 and 103 would require the Secretary of State to consult all relevant health overview and scrutiny committees before making a decision on a reconfiguration. Amendment 103 would also require the Secretary of State to have regard to, and publish, clinical advice from the ICB’s medical director. It is of course vital that local views are represented in any reconfiguration. However, although I understand the rationale behind these amendments, I do not think they are strictly necessary. The new power will not replace the important role that local scrutiny and engagement plays in service change decisions; we expect the vast majority of reconfiguration decisions to continue to be managed by the local system, and system players will be encouraged to resolve matters locally where possible.
The Secretary of State will continue to be advised by the Independent Reconfiguration Panel, which is being retained. The focus of the IRP is and will continue to be the patient and quality of care in the context of safe, sustainable and accessible services for local people. It has also provided the system with advice based on its experience to date around critical success factors.
If I may go down a slight rabbit hole here, I would like to put on the record my appreciation for the work of the IRP. Certainly during my tenure in this post, I have consulted it and seen its advice on a number of occasions, and I am grateful for the work its staff do, the speed with which they do it and the benefit I have gained from that advice in making decisions or advising the Secretary of State on particular decisions.
In practice, the Secretary of State will always need to seek appropriate advice from clinicians, local leaders or other experts before making any decision, and all decisions made using the powers inserted by clause 38 and schedule 6 must be published. This will ensure transparency and allow for proper scrutiny of the way the power is being used.
Schedule 6 also includes the requirement for NHS commissioning bodies, including integrated care boards, to give the Secretary of State any information or other assistance required to carry out any functions under the schedule. It is envisioned that the Secretary of State will obtain information from NHS commissioning bodies when making reconfiguration decisions. This will include any representations that an HOSC, stakeholder, patient group or any other interested party have made, if applicable.
All decision making on reconfigurations, at both local and ministerial level, will continue to be guided by the four tests laid out in existing guidance that reconfiguration should be assured against: strong public and patient engagement; consistency with current and prospective need for patient choice; a clear clinical evidence base; and support for proposals from clinical commissioners.
As such, we believe that clause 38 and the guidance that the Secretary of State is required to produce under the powers in schedule 6 will provide sufficient safeguards to ensure that the Secretary of State receives appropriate advice before using the powers in this clause. As a result of not accepting amendment 103, we will also resist amendment 102, which is consequential on amendment 103.
Amendment 104 would require the Secretary of State to publish, alongside any decision they have made under this provision, a statement demonstrating that the decision is in the public interest. The Secretary of State is accountable to Parliament for all his or her decisions. Ministers are expected, as a core principle of the constitution, to act in the public interest, and this is reflected in the ministerial code. In addition, the Secretary of State’s scrutiny and direction-making process on this and any other matter must already take into account the public law decision-making principles, all relevant information and their legal duties, including the public sector equality duty, that adhere to such decisions.
The Secretary of State is also under a number of duties set out in the National Health Service Act 2006, including a duty to promote a comprehensive health service, to secure continuous improvement in quality of services, and to have regard to the NHS constitution. As I have already set out, the Secretary of State will continue to be advised by the IRP, and will seek appropriate advice from clinicians, local leaders or other experts.
As for paragraph 4 of schedule 6, the Secretary of State already has a duty to publish any decision they make on a reconfiguration and to notify the NHS commissioning body of the decision. For those reasons, I urge the hon. Member for Nottingham North to withdraw his amendment—I suspect that I will be unsuccessful in that plea, but I make it none the less.
I will now address clause 38 and schedule 6. The clause inserts proposed new section 68A and proposed new schedule 10A into the National Health Service Act 2006. It also introduces schedule 6, which includes a new intervention power to allow the Secretary of State to call in a reconfiguration of NHS services at any stage of the process, without the need for a referral from a local authority. A reconfiguration of NHS services is a change in service provision that has an impact on the manner in which a service is delivered at the point at which the service is received by the user, or the range of health services available to individuals. That could be, for example, a change in where a mental health in-patient unit is based, building a new stroke unit, or restructuring a whole hospital trust.
The new intervention power will enable the Secretary of State to act as a scrutineer and decision maker for reconfigurations, to intervene where, for example, they can see a critical benefit or cost to taking one or other course of action, or to take action where there is significant cause for public concern. We do not expect or intend to use the power with any regularity, and where it is used, it will be done so transparently. As I have emphasised, the Secretary of State must publish any decisions made about reconfigurations.
Schedule 6 sets out the scope of the reconfiguration powers as they pertain to NHS commissioning bodies, NHS services, NHS trusts and foundation trusts. It introduces a new duty for the relevant NHS bodies to notify the Secretary of State of any proposed or likely reconfiguration. The Secretary of State will be able to take any decision that could have been taken by the NHS commissioning body. That includes the ability for the Secretary of State to decide whether a proposal should proceed, the results the NHS commissioning body should achieve, and the procedural steps that should be taken. As I set out earlier, decision making will continue to be guided by the four reconfigurations tests. The new power will not replace the important role that local scrutiny and engagement play in service change decisions.
As the shadow Minister set out, the public expect Ministers to be accountable for the health service, which includes reconfigurations of it. The clause ensures that decisions made in the NHS that affect all our constituents are subject to democratic oversight. Without it, the Secretary of State’s ability to intervene and take decisions will remain limited, often coming at the end of a long local process. As now, he would not be alerted to a potential change in services until the change became an issue and he would remain powerless to intervene without a formal referral by a local authority.
I am conscious that that existing arrangement satisfies few in Parliament, including Opposition Members, on the occasions when they make representations about the process. However, it will be for this debate to see whether Members feel that the proposed new arrangement satisfies them—I will not prejudge that for a minute, looking at the faces of the Opposition Members. I therefore commend clause 38 and schedule 6 to the Committee.
I congratulate the Minister on his valiant attempts to defend the powers that he wishes the clause and schedule 6 to give his boss.
The Opposition are pretty realistic and do not think that the clause will survive the parliamentary process in its current form. It would save a lot of time if the Minister was to indicate now that he had taken note of the many concerns expressed and that things will change. However, as the clause remains on the face of the Bill, we will have to go through the long and important reasons why it will not be able to stand in its existing form. The Minister will continue to defend the indefensible until it no longer needs to be defended.
We have heard evidence as to why the powers in the clause are not needed and, indeed, why the Secretary of State would not want such powers. Again, we are trying to help the Minister and his Department out by pointing out some of the pitfalls. The clause really is the total antithesis of everything this Bill is supposed to be. The Minister has told us many times that he wants to take a permissive approach, but the truth, as exposed by this clause, is that being permissive is okay until it is not, and then we have the power grab, the micromanagement and the sound of bedpans dropping all the way up to the Secretary of State’s desk. That is the logical conclusion of the clause.
I refer the Committee to some of the witnesses who spoke in the evidence sessions. The NHS Confederation chief executive, Matthew Taylor, has said:
“There is widespread support for most aspects of the government’s NHS reforms, but the one area we continue to get real concern over is the proposal to extend ministerial control over changes to local services…the risk with this element of the Bill is that we will end up with more politically motivated decisions which erode the NHS’ clinical independence.”
And in his evidence session, he said:
“We think the system, as it is, is not perfect but works pretty well. For the Secretary of State potentially to be embroiled in making decisions not just about major reconfigurations, but really relatively minor reconfigurations runs the risk not only of delaying necessary changes in the system, but of putting less emphasis on the views of local people and of clinical advice.”—[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 44, Q56.]
He went on to say that
“the powers of reconfiguration are the Achilles heel. I appeal to you to recognise that that is unnecessary and goes against the spirit of the Bill.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 52, Q65.]
We certainly agree with that, although we would say that there is more than one Achilles heel in the Bill. I do not know how many heels there can be in one Bill, but there is certainly more than one.
Saffron Cordery of NHS Providers said:
“The other thing to say is that, often, Secretary of State powers may seem like small elements, but taken together, the cumulative impact can be seen to erode that local accountability. We would hope, whatever happens, that if someone has an issue with ear wax removal, they speak to someone at the most appropriate level to get something done. That is what subsidiarity is about: the delegation of powers to the most appropriate level, and it is really important. It is also important for accountability, because you cannot have a Secretary of State saddled with taking a thousand tiny decisions in an organisation and a system as complex as the NHS. That is one of the challenges of this local reconfiguration issue that is arising.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 44, Q56.]
Chaand Nagpaul of the BMA said:
“The other concern is about the local reconfigurations. We know how politically sensitive these things can be. We would not want the Secretary of State to have disproportionate powers in those arrangements, which will often be more susceptible to political influence.” ––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 96, Q128.]
There is a pretty clear consensus of concern. It is little wonder, given that clause 38 and the accompanying schedule, as currently worded, would require that if any NHS commissioning body, NHS trust or foundation trust is aware of circumstances that it thinks are likely to result in the need for the reconfiguration of NHS services, it must notify the Secretary of State. That is quite the bar to set. What does it actually mean in practice? If a GP mentions in passing to someone who works in the ICB that they are thinking of extending their surgery’s opening hours one evening but shortening them on another because their bridge club has changed the day its meets, would that count as an event that must be notified to the Secretary of State? If a physio decides that they want to play soothing music and have an incense candle burning during their sessions because it would put patients more at ease, would that count as a notifiable event?
Those might sound like absurd examples, but the way the schedule is currently worded potentially casts the net that widely. Indeed, paragraph 1(a) refers to a reconfiguration as including
“the manner in which a service is delivered”.
The dictionary definition of “manner” is
“the way in which a thing is done or happens”.
I am struggling to think of something that could be broader in its terminology. I am not sure how helpful it would be for the Minister to reel off a long list of what is and is not meant to be included in the schedule, but he is more than welcome to try. Of course, he could save a lot of time by deleting the clause altogether.
One of the reasons the Minister gave earlier for not supporting our amendment on safe staffing levels is that he does not want to impinge on local accountability, but here we are doing the exact opposite. What is troubling people about paragraph 3 in particular of the schedule is that, in effect, it places a positive duty on an NHS commissioning body, be it a trust or a foundation trust, to notify the Secretary of State if it is
“aware of circumstances that it thinks are likely to result in a need for the reconfiguration of NHS services”.
Where exactly do we draw the line with that? If Doris in accounts overhears a conversation, does that mean that the NHS body is aware? Any light that the Minister can shed on that would be most welcome. It highlights how the clause, as worded, creates unrealistic obligations. How would any of this be enforced? Can we punish a trust for failing to be aware of a need, even if it is just Doris in accounts who has heard a conversation from someone else in passing about a possible change? Can an ICP that holds a needs assessment point the finger? Are there any people who are punished if they spot the need, but do not tell the Secretary of State, or if they are aware of a need, or should have been, and do not say anything? Will they also be caught by the provisions of the schedule?
What are the sanctions against an NHS commissioning body, trust or foundation trust if they fail to notify? What is the punishment? What is the lever that will compel them to notify the Secretary of State? Presumably, if our amendments on openness and transparency had gone through, the Secretary of State would not have needed to worry himself about such questions, because he would have been able to read all the board papers and minutes of all the ICBs as they met. Hopefully, those papers would set out any changes that were being considered instead of indulging in this fairly ludicrous guessing game.
The reality, surely, is that the commissioners and providers are considering how to improve things pretty much all the time. Is that not part of their drive for continuous improvement? Are they going to have to keep sending updated memos to the Secretary of State every time a plan is considered again? Not only is the potential scope of the proposed duty extremely wide, but it is not exactly in keeping with localism and place-based approaches. In fact, it is totally contrary to it. How will the Minister justify taking away powers from a local authority to challenge reconfigurations, and yet the Secretary of State, hundreds of miles away, who has probably never visited the place, gets the ability to challenge absolutely everything?
So far, concern about service changes has not led to the proper recognition of staff in the process. The pledge in the NHS constitution to which the Minister referred is not always followed, particularly in relation to the duty to involve staff. That should be included in the Bill if the Government are serious about that.
We should not be surprised that the clause, in particular, is causing so much concern, because people really value what they regard as their services, and they are wary of change and interference from the centre. That should come as no surprise after a decade of cuts and service restrictions. They are right to be cautious and concerned about what is behind that approach. This is the Government who of course claimed that the refurbishment of a wing is the opening of a brand-new hospital. Is it little wonder, in the face of such spin, that people are concerned about what is behind all this?
We know that the NHS keeps adapting and reconfiguring. Any organisation that is serious about improvement will never just accept the status quo. I am sure that the Minister would accept that it is quite a difficult conversation to have when it is proposed to close an unsafe A&E unit, even when that is supported by strong clinical evidence. We know that in such circumstances, tensions are bound to surface. That tension was indeed recognised 20 years ago, when the first reconfiguration process was put in place. It had, I believe, 13 steps in it—unlucky for some —and it required a comprehensive business case, a proper consultation and an independent assessment both from the gateway review and by the then national clinical advisory team. The old strategic health authorities policed them, and made sure that the course was set. To be fair, as with much of the NHS, the process was not always followed properly, but it largely worked and there were beneficial changes as a result.
As Saffron Cordery of NHS Providers said in her evidence to this Committee:
“The powers that are currently in place are a really effective way of doing it. People getting something past a local health overview and scrutiny committee is a really important hurdle for any service change. It is already well respected, well used and very effective. This is one of those elements that at best is redundant and at worst is going to create a lot of work and a lot of unnecessary tension and friction where we already have challenge.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 52, Q65.]
Nigel Edwards from the Nuffield Trust gave evidence and also hit the nail on the head when he said:
“The current system seems to me to work quite well. The Secretary of State still has a say, particularly around controversial decisions, but they do not get sucked into every small reconfiguration and change. You also do not have a point where there is an opportunity for local participants to say, ‘I’m not going to contribute to this conversation any more. I’m going straight to the top,’ and undermine people working together locally. I am of the view that the current system works quite well.”
That evidence in particular points very well to the risks of this proposal. It could undermine the whole thrust of the Bill, which we understood was to be about greater local autonomy and collaborative working. Nigel Edwards also said in his evidence:
“I think we said to the previous Secretary of State, ‘You need to be really careful what you wish for. You may think that your intervention is going to help to move things along and improve innovation. It’s quite likely, from both previous experience and experience in other similar types of systems, to have the opposite effect.’”––[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 120, Q161.]
Perhaps the Minister does not need to listen to the evidence that has already been presented to the Committee to be convinced of the concerns, because it seems that his Department’s own impact assessment has also identified them. I will quote from that. It says:
“The existing local authority-led referral system would likely be replaced by much broader and more active lobbying groups; to ensure equitable reviews, the department would need new administrative processes to provide adequate support to ministers (including clinical expertise) and new data flows allowing adequate scrutiny of complex reconfiguration cases prior to call-in”.
Perhaps he could redeploy some of the people who are not dealing with the foundation trust applications to do that, but there would be a burden on the Department.
The assessment also says that
“the ability to call-in any reconfiguration could lead to…departmental administrative costs”
for systems to monitor and inform Ministers about reconfigurations. It says:
“This would be necessary to ensure the Secretary of State has appropriate information across reconfigurations to be able to call them in. This could be a particularly significant cost if cases monitored for call-in extended much beyond the remit of complex reconfigurations…and if duplication with data flows to other bodies…could not be avoided.”
The Minister will see that I am trying to be helpful to him and his Department at this point. There is one other point from the impact assessment that is really pertinent. It says that
“any benefits of greater autonomy”
for NHS organisations
“may be forgone.”
That really is going to the heart of one of the difficulties that we have here.
That is a clear warning for the Minister from his own officials. Hopefully he will listen to them if he does not listen to us. We need to understand and I have not really heard—with the greatest respect to the Minister—what the problem is that they are trying to fix with this particular clause. It is always the case that in the end decisions are made by the Secretary of State. The innovation to allow the Independent Reconfiguration Panel to advise the Secretary of State has worked well. Indeed, the Minister himself recognised its role. Something like 100 proposals have come through the panel in its lifetime, and as far as we know, the Secretary of State has never actually taken the steps to overturn them. Indeed, their importance has been recognised today. It was not a surprise, therefore, that the original proposal to scrap the panel altogether was dropped.
Given that we have, possibly, 100 examples, some of which the Minister will be acquainted with more intimately than us, could he tell us which ones under the old system would have been leading to different outcomes from what we are getting proposed in the Bill? What would have been different? What decisions would have been different? Would it have been the speed of them? Perhaps it will be slower, actually. That is one of the risks. What is it that has happened in the past that would not be repeated under this clause?
To take the Committee back to July 2010, a former Health Secretary, Andrew Lansley, made some changes to the panel. He introduced elements of independent scrutiny. The national clinical advisory team and the gateway were no longer required. Four tests came in instead. Obviously, we politicians do love our four tests. I think that normally Labour goes for five tests. But we have four on this occasion. They were really a fig leaf to pretend that something had been done. The process was overseen by NHS England. The four tests were set out in the operating framework, and they required proposals to demonstrate support from GP commissioners, strengthen public and patient engagement, clarity on the clinical evidence base and a consistency with current and prospective patient choice. Anyway, the process carried on, and pretty much worked okay, unlike what we think we are going to see coming through under the Bill.
We think that it is a mistake to change a process that addresses what we all accept is sometimes a very difficult, emotive, highly charged and sensitive issue when it appears to work. I doubt that the Minister will say so today, but I think he might agree with that. We read in the Health Service Journal that the Secretary of State is
“considering scrapping or watering down plans to give him power of local service changes, in response to concerns from the service.”
The article also suggests that we would table amendments in Committee that would apply additional tests and mitigations to the new powers. We have not done that, because we decided that we would much rather that the Secretary of State did not give himself these wide-ranging powers at all. Rather than distract him from his central aim, we are trying to give him an “out” and the opportunity to do what we think, underneath all the fine talk, is what he really wants to do—quietly ditch these proposals. We will vote against the clause and the accompanying schedule, and we suggest Conservative Members do the same. I think that the Minister will be grateful in the end, if they defy the Whip on this occasion.
If I may just trouble the Minister with another element of the article, it said that several sources involved in the discussions said that the Government had indicated that the Secretary of State may form a stakeholder group to consider changes to the service reconfiguration powers to potentially narrow or remove them, although it also said that that was not confirmed. The article went on to say that any changes agreed to would be likely to be made through amendments in the Lords, and that the Secretary of State had rejected the idea of discussing the changes to other clauses unpopular with stakeholders. I do not know whether the Minister is able to comment on the veracity or otherwise of what was said, but if there is to be a stakeholder group, can he tell us who will be in it? I would also be interested to hear whether he has an opinion on the statement in the article about other clauses that appear unpopular with stakeholders. Can he tell us which ones those are? Of course, if the Minister is not able to get into that detail, he could just vote against the clause.
Incidentally, in the same HSJ article a DHSC spokesman was quoted as saying that these proposals would give the NHS more power, not less, and that they would maintain its clinical and operational independence while ensuring that the Secretary of State had appropriate and transparent oversight. As those remarks are quoted in a written article, we do not know whether the spokesperson who made them did so with a straight face. Indeed, it would be most interesting to see if the Minister is able to repeat those comments when he has taken his mask off without at least cracking a smile about what the spokesperson said. I think that that statement does rank up there with some of the stuff we have seen in his playbook about how new clinics, however small, should be called new hospitals. I am half expecting the Minister to wave a pen and paper about and proclaim the introduction of a brand new booking system that is being rolled out across the NHS, such is some of the spin that the Department is producing these days.
Finally, I would like to address a few of the other powers in schedule 6 that deserve greater explanation. Paragraph 4(3)(b) gives the Secretary of State
“power to decide particular results to be achieved by the NHS commissioning body in taking decisions in relation to the proposal”.
I hope the Minister can help me here, because that sounds pretty much as if the Secretary of State would be issuing an instruction that could override any local processes, decisions or consultation by deciding the particular result that he wants to achieve. Is that actually what he is going to do—basically mandate a particular decision? The power for the Secretary of State to direct any commissioning body to consider a reconfiguration is another extremely broad and undefined power; in the context of the rest of the schedule, it amounts to an absolute power. As we have heard in evidence, this could override patient safety concerns, local consultations and agreements, and clinical opinion. It is an absolute power, and it should be voted down.
Even in the very few cases where there might just be a role for the Secretary of State to break the deadlock, as with the reconfiguration of paediatric heart surgery, there is already enough in place in the system, which most people think works reasonably well. Nick Timmins of the King’s Fund said:
“I think it is really dangerous for both Ministers and the NHS…the Independent Reconfiguration Panel…has worked very well. It has dealt with about 80 controversial cases…the Secretary of State does not have to take its advice, but the Secretary of State almost invariably does take its advice. I think that if we end up with lots and lots of reconfigurations hitting Ministers’ desks, Ministers will come to regret that. If you listen to the views of previous Secretaries of State, they almost always say, ‘It’s ludicrous we ended up having to make a decision about what was going to happen’—in Nether Wallop or wherever—which was the case before the Independent Reconfiguration Panel was around.”––[Official Report, Health and Care Bill Public Bill Committee, Thursday 9 September 2021; c. 120, Q161.]
I hope that the Minister will recognise that we are trying to help him. I do not think that he wants to end up giving his Department and his boss so much power, because it will turn out to be a poisoned chalice, and contradicts the stated aims of the Bill.
There are a couple of questions that we would like the Minister to answer. How will he ensure that configurations are to the benefit of patients and can take place within a reasonable timescale, given that he may well be the subject of individual lobbying? How will he ensure that decisions taken under paragraph 4(2)(b) of schedule 6 are appropriate for, and acceptable to, patients and the public? What measures will he put in place to ensure that things are dealt with expeditiously and do not drag on for many years, undermining clinical leadership in local areas? Will he publish a review each year of the impact and effectiveness of the powers that he is giving himself under the clause? As I stand here now, I am still not clear why he wants to give himself those new powers. Hopefully he will reflect on those matters. We have a lot of respect for him, and we are trying to be as helpful as possible, but we do not support clause 38.
I want to speak generally to the clause and the schedule, rather than in support of any amendments. I thank the Minister for setting out the continued role of the IRP and the four tests that have been put in place. I am sure that all of us on the Committee have at some stage in our local communities faced a healthcare service reorganisation. They are very painful processes, as the hon. Member for Bristol South will recognise. We had a reconfiguration across both trusts in Bristol that began, I think, in around 2004 and has yet to be properly completed. They are incredibly painful processes that can leave local communities feeling disaffected and disempowered, whoever is taking the final decision.
We need to think carefully about the potential unintended consequences of the schedule as it stands. I have not tabled any amendments; I just want to raise potential concerns about the detail. In Bristol and south Gloucestershire, Cossham Hospital was provided to the local community by Handel Cossham, who was the Member of Parliament at the time for the east and south Bristol region. He was the only Member of Parliament who, I think, technically died in the Palace; he collapsed in the House of Commons Library and died of a heart attack. I think in those days they could not even claim that he had somehow survived.
Handel Cossham donated in his will land to the people of Kingswood, on which they built Cossham Hospital, named after him. Even before the NHS came into creation, therefore, Cossham Hospital was there, having been built in 1905. The local people of Kingswood, even though it sits in the Bristol East constituency now, felt very passionately that this was their hospital; it was not the NHS hospital. Yet there was a proposal to close Cossham Hospital, which was then reversed. In consequence, the decision was taken to close Frenchay Hospital in favour of a new hospital in Southmead. Frenchay Hospital was meant to become a community hospital, but a U-turn was taken by the healthcare authorities at the time—the clinical care commissioning groups and North Bristol Trust, which squabbled over who was in control because the land had been handed over from North Bristol to the CCG.
I benefited, when I was elected in 2010, from the “Save Cossham Hospital” campaign, which saw the very good Labour MP lose his seat. I faced battles when there were promises to put a minor injuries unit into Cossham Hospital and then there was another U-turn. Ultimately, no one has been held properly accountable, but the IRP published a report that demonstrated that North Bristol Trust had neglected its duty to communicate effectively with the public.
It is that element of communication with the public that I want to talk about in relation to schedule 6, because I have concerns. I agree with the Minister about removing the control of the health overview and scrutiny committees, because they became toxic platforms for councillors, who suddenly had to take decisions as local authority members. They did not know anything about them; all they knew was that their seats were at risk, so the committees were becoming highly politicised forums. People were turning up to the councils and demanding that councillors referred things to the IRP.
Perhaps the Minister can comment a bit more about the nature of who is doing the referral and who is contacting the Secretary of State, because the Secretary of State will not necessarily be aware of all the reconfiguration decisions. Who is the active agent who is making the referral to the Secretary of State? Will it be a councillor, a member of the public or a Member of Parliament? My worry is that when we get to election time, the Secretary of State becomes a lightning conductor, and this will electrify decisions. For new colleagues in marginal seats in the red wall, this could be one of the decisions that creates the dynamic by which the general election is fought on various reconfigurations. The Opposition will claim that it is the Secretary of State’s responsibility to deal with the matter and that he has let down local communities. That is the dynamic and toxic discussions that we have to avoid, if the provision comes into play.
I agree that the Secretary of State needs to have more information to hand and the ability to make decisions, but I am concerned about the definition in schedule 6, which states that
“‘reconfiguration of NHS services’ means a change in the arrangements made by an NHS commissioning body…that…has an impact on—
(a) the manner in which a service is delivered to individuals (at the point when the service is received by users), or
(b) the range of health services available to individuals.”
That is so broad that it could include the tiniest change. Mr Jones, a constituent of mine, might say, “Actually, this has impacted on my local provision of healthcare services for me. I want you to start a petition to the Secretary of State to change this.” I wonder whether there could be some conditionality placed within the definition that might touch on an overwhelming community interest, or something that might touch on the detriment of patient outcomes.
I believe that when we make reconfigurations, they are not necessarily done for financial reasons. They are done to deliver better patient outcomes, so we have to find a way for all political parties to demonstrate that when we put trust in professionals to take decisions, they are doing so because they recognise that there are ways in which reconfigurations can lead to better patient outcomes. We have to be able to move people in that journey. It is not just about the money when it comes to reconfigurations, and I understand that. As political leaders, it is worth supporting clinical decisions when they are the right ones for the benefit of patient outcomes, even if they are difficult decisions for us to take. Some reflection of that in the definition of “reconfiguration of NHS services” would be welcome.
Ultimately, it will come down to guidance, which is why the section on guidance is important. The Minister has mentioned guidance being published. Currently, paragraph 8 of schedule 6 only says:
“The Secretary of State must publish guidance for NHS commissioning bodies, NHS trusts and NHS foundation trusts.”
I think we would all really welcome that guidance being extended to the local authority’s health overview and scrutiny committee, so that it can understand what role it is playing within this fiery dynamic.
What we really need to do with the clause is ensure that members of the general public understand what the duties and responsibilities of the Secretary of State are to any reconfiguration, and that they are set out very clearly to start with. Once we start going down the journey of a petition being collected, it gathers steam and therefore becomes a campaign. Suddenly, rather than having the Department of Health and Social Care, we have a new Department called the Department of Health and Reconfiguration Services, which is what we need to avoid. For the sake of the public and the community, we have to be able to demonstrate that reconfigurations will happen—that is the nature of the NHS. Decisions need to be taken when the facts change and the clinical outcomes change, and I recognise that fact. However, we have seen flip-flopping in Bristol eroding public trust. We need to ensure that, from the outset, people understand why the Secretary of State has these powers and the conditions under which he can take decisions, working with the IRP. We would welcome guidance, potentially for Members of Parliament and local authority members, so they are able to have advance conversations when constituents come to them saying, “I want you now to refer this to the Secretary of State” or “I’ve got a petition of 10 people who want to refer this to the Secretary of State.” They will then know exactly the context in which they can consult the Departments.
Those are the only points I want to make. I am not here to support any of the amendments, although I support the clause. I wanted to reflect on things that might be added in order to break down the granularity of detail, provide wider community context and make sure the public understand where the Secretary of State sits in this potential conversation around reconfiguration.
It is a pleasure to follow the right hon. Member for Kingswood. I feel the need for us to write a book or a pamphlet about the planned reconfiguration of health services in Bristol from my time on the board. I agree with a lot of what he said about the Kingswood-Frenchay area, but I hold the reconfiguration up as a good example of wider consultation, clinical leadership and patient and public involvement.
Some of the messiness we got into reflected healthy discussion of the issues. As he said, we are still going through the process, but at the end of those long days we managed to build two very good, specialised hospitals, particularly around A&E services, and therefore close an A&E service. Although not a clinician, I had lots of work in the Frenchay area at the time and it was a terrible place to work and deliver clinical services, having been built as temporary wartime provision, although it was much loved by local people. That is something we might reflect on at another time. The process continues. We have just closed the consultation on stroke services, and other good services, including primary community care services, have come about as a result of the reconfiguration. Reducing a hospital base from three to two is a major exercise, but it did happen.
The points made by the right hon. Gentleman were well made, as were those made by my hon. Friend the Member for Ellesmere Port and Neston. We could play good cop, bad cop, because I am disappointed that the Minister is not taking the very helpful hands that I have offered to find more ways around this, rather than saying that we just want to see the whole lot come out. It will come out eventually—I think we all know that—but along the way let us put some helpful things in place.
My amendments deal with health overview and scrutiny committees and clinical advice. I will not press them to a vote, but I would like the Minister to address them. I think they might appear in similar form in other places, at other times, so what we say is important.
The Government need to account for where and how they are going to get their clinical advice. Reconfigurations, both large and small, are important to local people, as hon. Members have said. The Cossham example is a good one. Some of those buildings do not belong to the NHS. They belong to local communities and pre-date the NHS. People love buildings and their associations. As we embrace technology, we can see that people like buildings because they are something they can grab hold of and understand.
Clinicians—and clinical advice about change—are crucial in allowing and facilitating change. As with politicians, if there are three clinicians in the room then often there will not be one single answer. The issues about what we should be moving towards are often not black and white. The whole vexed issue around the tests and where clinical advice comes from is problematic for the Government and the Secretary of State.
As my hon. Friends have said, the national clinical advisory team did independent reviews, and then that disappeared. We have looked at clinical senates. The Lansley test, which has been alluded to, wanted clarity about a clinical evidence base. In order to provide such clarity, a lot of clinicians need to come together, across specialities and across primary and secondary care, to agree and to then go and talk to the public, to make people understand why and when they are putting forward their propositions.
The timing is interesting, because the test assumed the support of GP commissioners. In this new world, there is no clinical leadership of these new bodies; they are managerially led. Some of the managers might be clinicians, but when the tests were established—this was also true of primary care trusts—the previous bodies in their previous incarnations were largely clinically led. We may dispute whether that was in actuality, whether those people were acting as clinicians, what sort of clinicians they were, whether they were clinicians in the field of the service reconfiguration we were talking about and so on, but that is an important point in terms of trust with the general public.
The new bodies are not clinically led. In my amendment, I suggest the ICB medical director, but that will be a pretty tall order for the ICB medical director even in my amendments. They are also supposed genuinely to promote patient choice. We talked earlier about the removal of autonomy, and what we are seeking to do in many of our amendments to the Bill is to put back the voice of the patient somewhere in this permissive integration world.
The other test was generally to enjoy public, patient and local authority support. While poor old Lord Lansley is not getting much praise in these meetings, some sort of provision for tests with the public, local authorities and clinicians, recognising the complexity that has been outlined particularly well by the right hon. Member for Kingswood, still living through some of this, is well made.
I do not think the Secretary of State for Health and Social Care wants all this on his desk. In my time in this place I have watched with great interest, as I am sure we all have, as hon. Members across Cornwall, Devon, Dorset, Gloucestershire and all across the south-west have all risen at various times to bring up the issue of their community hospital, their A&E and various other services in their part of the country. Those issues are keenly felt and will all need consideration. Somebody—largely clinicians, and then other managerial people in those bodies—will have to sift out those processes.
What is alarming people, as we heard in evidence from our excellent witnesses—my hon. Friend the Member for Ellesmere Port and Neston outlined the key arguments—is that there is a gap. Who is filling it? How is it being filled? That is not just about process; it is about serious clinical engagement. That is why the Minister would be wise to pick up some of the helpful amendments that have been tabled, to alter this; otherwise it disappears completely. I think it was Nigel Edwards from the Nuffield Trust who said it is working pretty well at the moment.
We will all have our points in time where we disagree with things, and we will all want to bring in something else. That is partly our role as elected representatives, and I know the NHS does not like politics and politicians getting involved in these things sometimes, but it is the job of local representatives, whether local councillors or local Members of Parliament, to articulate on behalf of their constituents, to understand the debates and issues, to mediate them and certainly to challenge clinicians and managers of all types on the veracity of the proposals they put through.
The other thing I have said publicly is that sometimes the evidence put forward is not as robust as it should be. That external local scrutiny is well served by those of us who take a strong interest and ensure that the veracity of that information is solid. I have been able to go back to constituents—it is a brave politician who goes back to a constituent to say, “No, actually, I think we need to close that A&E,” but frankly, as we have seen from various reconfigurations across the country, at times that saves lives and is the right thing to do. Giving people locally the support to articulate that is also important.
I fear we may not have consensus in Committee at this point, but none the less I will endeavour to answer some of the points raised. I am always grateful to the shadow Minister for his kind offers of help and assistance, and he will know that I always reflect carefully on the evidence we have heard and on the opinions of hon. Members on both sides of the House. I welcome his welcoming of the publication of the impact assessment in time for him to be able to quote it back at me. Finally, I thank him for his heartfelt and kindly offer of alternative approaches, given his concern for my workload were these proposals to be approved. I am touched on a number of levels by that, and equally by his suggestion that I and others have been engaged in the dark arts of spin—heaven forbid.
In the context of clause 38 and these amendments, right hon. and hon. Members, including my right hon. Friend the Member for Kingswood, have raised a number of important points that bear further reflection. As we have said throughout this process, the challenge with this Bill is striking the right balance between being permissive and ensuring accountability at a national level, and we believe this clause plays a key part in doing so. I disagree with the shadow Minister’s view—although I respect it—that the clause does not strike the right balance, and I do not believe that the powers set out in it are disproportionate, as he has suggested. He has highlighted the role of the IRP. I mentioned my gratitude for its work in my opening remarks, and I was very clear that that work will continue. The IRP will continue to give the valuable advice it has given thus far.
I do not believe that the notification requirements will prove unduly onerous: a notification can be a very simple process. To the shadow Minister’s point about timeliness, process and definitions, we are working very closely with the NHS and other partners to produce guidance that will set out clear expectations about how and when the powers will be used, and how they will be exercised. In his remarks, he touched on a concern that Ministers might be beset by lobbying from the public and others. I would argue that such lobbying would clearly point to greater public engagement with such matters and increased transparency, which are things that we might welcome. For fear of upsetting my hon. Friend the Whip, the Member for St Austell and Newquay, I will pass over the invitation that the shadow Minister and others have extended to my colleagues on the Government Benches to break the Whip. I saw the expression on my hon. Friend’s face when that was suggested, so I strongly discourage any of my right hon. or hon. Friends from contemplating that course of action. Even though a reshuffle has only just happened, there is always another one at some point.
The shadow Minister mentioned the Health Service Journal, which I enjoy reading. All I would say is that we continue to engage with a wide range of stakeholders, as we have done throughout the process. Indeed, I think that in her evidence, Dame Gill Morgan highlighted the collaborative nature of the genesis of this Bill. I intend to continue with an open and transparent approach, discussing with colleagues and engaging with them and others, because we know that we can always learn by listening.
I will come to the shadow Minister’s point, but I just want to get through the points he made earlier in his preamble. He mentioned the quote in the Health Service Journal article from a spokesperson for the Department of Health and Social Care, and I think that quote accurately reflects the nature of this Bill. I am grateful to those officials from the Department who ensured that the Health Service Journal got its quote.
I now turn to the substance of the shadow Minister’s argument and some of the gritter points that he, the hon. Member for Bristol South and others have alluded to. Fundamentally, he asked what challenge this Bill seeks to resolve. He asked a few other questions as well, which I will try to answer.
We believe that the Secretary of State should be able to intervene in reconfigurations for which they are ultimately accountable, and that this proposal will increase accountability to Parliament and the community by enabling intervention at an earlier stage. Too often, controversial proposals are referred at the very end of the process after a huge amount of work, effort and expenditure, rather than at an earlier stage when there is already a divergence of opinion in the local community. The Bill gives the Secretary of State an opportunity to take a view—based on advice and on the IRP’s four tests, which will continue to be the basis of that—and to get earlier intervention, where appropriate. That is one of the key reasons.
I will carry on, and the shadow Minister will nod if I am missing anything. He touched on local authority engagement, who can refer, whether there is a diminution in power—I think the hon. Member for Bristol South might have mentioned that—and what qualifies the Secretary of State to make those decisions. He also referred to local knowledge.
As the shadow Minister knows, the Secretary of State can already act to determine the outcome of a reconfiguration process, but only in limited and defined circumstances following a referral from a local authority health overview and scrutiny committee, on the grounds either that the consultation was inadequate or that the change in question is not in the interests of the health service in the area.
The change in the clause will extend the scope for intervention by allowing that call-in at any stage. That would have the effect of allowing people or organisations other than local authorities—for example, Members of Parliament—to ask the Secretary of State to do so. That will enable a more flexible and possibly earlier intervention, which has the potential to shorten the timescales for resolving such issues, when appropriate, rather than seeing them drawn out and extended.
We could spend a lot of time on this, but I think the Minister is saying that this could happen if there is a dispute within the public at any stage—perhaps at the outline business case, perhaps at the initial raising at the ICB or perhaps at the floating of the idea. That is clearly nonsense, if I may say so. Will the guidance define what “any stage” means?
We anticipate the guidance setting out what is proportionate, the criteria and the appropriate point at which an intervention can be considered. I come back to the point that too often, under the current arrangement, proposals come forward right at the end of the process, after huge amounts of expenditure, effort and time, only to be overturned—potentially at the very last moment—on the basis of the referral. Having a measured and proportionate intervention power at an earlier stage is the right approach to save a lot of angst and possibly money, although we do not anticipate that the power will need to be used on many occasions, because the vast majority of reconfigurations are broadly consensual, or reach a local consensus.
The shadow Minister alluded to local authority referrals, and the hon. Member for Bristol South has highlighted the importance of local authorities and local accountability in a number of previous speeches and interventions. The new call-in power will not replace the important role that local scrutiny and engagement play in service change decisions. Decision making on all reconfigurations, as I said, will continue to be bound by the four tests against which reconfiguration should be assured: strong public and patient engagement; consistency with current and prospective need for patient choice; a clear clinical evidence base; and support for proposals from clinical commissioners.
The IRP will continue to provide the independent clinical advice to inform the Secretary of State’s decision making. His scrutiny and direction-making process must take into account the public law decision-making principles, all relevant information and all legal duties, including the public sector equality duty.
In that context, the Secretary of State will also continue to be bound by his duty on quality of service. That includes promoting the comprehensive health service and securing continuous improvement in the quality of services provided. The new call-in power for reconfiguration will allow the Secretary of State to support effective change and to be more responsive to the concerns of the public—and of Members of Parliament as their representatives—at an earlier stage.
Reflecting on the Minister’s comments about why the provision is needed, my understanding is that the power to give the Secretary of State the opportunity to intervene at an earlier stage means that, in effect, local health systems will not spend an awful lot of time and effort coming to decisions that will ultimately be overturned. I wonder whether the Minister can give us any more detail or any thoughts about why, in a system that was generally thought to be working well, a decision could go all the way through that process and, at the end of it, be deemed to be wrong.
One particular example comes to mind, but given that it is a live one, I will not use it. However, if I semi-anonymise it, there are decisions that are made locally and followed through, and only at that last moment is the process challenged—for example, whether a consultation was done properly—so it triggers a potential referral to the IRP, which could see that process overturned. An earlier power to intervene and an earlier opportunity to engage could in many cases avoid that problem and lead to a smoother process.
Let me make a final point. I would expect most reconfiguration decisions to be managed by the local system, and system players will be encouraged to resolve matters locally where possible and not to require any referral to the Secretary of State. Where cases are highly contentious and require ministerial input, our proposals will allow the Secretary of State to intervene. He is accountable in Parliament for reconfigurations. The shadow Minister made the broader point that if we ask who is responsible for the NHS, people will say the Secretary of State, or potentially the Prime Minister. That is already there in people’s minds. It is right that we have commensurate powers in the Bill to enable the Secretary of State to properly discharge that function and accountability.
I remain touched by the hon. Gentleman’s kind concern about the volume of work I may end up having to do as a result of the measure. I do not quite share his concerns, but I am none the less touched by the thought.
I urge the hon. Member for Bristol South, perhaps in vain, not to press her amendment to a Division, and colleagues on the Committee to support the clause.
Question put, That the clause stand part of the Bill.
Clause 38 ordered to stand part of the Bill.
Schedule 6 agreed to.
NHS trusts in England
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss the following:
Clauses 40 and 41 stand part.
That schedule 7 be the Seventh schedule to the Bill.
Clause 42 stand part.
Clauses 44 to 50 stand part.
With your indulgence, Mr McCabe, and that of the Committee, I will start with clause 39, followed by clauses 40 and 41 and schedule 7, and then go through the remaining clauses in the group.
Clause 39 amends the Health and Social Care Act 2012 by repealing section 179, which abolishes NHS trusts in England. It is an uncommenced provision. The policy intention at the time was that all NHS trusts would become foundation trusts. However, since then the provider landscape has settled at around one third NHS trusts and two thirds NHS foundation trusts, and, as far as I am aware, no applications for change to a foundation trust are currently in flight. There is no intention to alter this landscape significantly and, as such, section 179 of the 2012 Act should be repealed. Doing so provides absolute legal clarity that the Secretary of State can create new NHS trusts under section 25 of the National Health Service Act 2006.
Given the ongoing pandemic, and with the NHS having to deal with the broader challenge of treating an ageing population with ever more complex needs, we seek to ensure flexibility by allowing the Secretary of State to set up new trusts for any purpose, to ensure alignment within an integrated system. The ability to create new trusts, where they are requested by a local area, enables the NHS to be structured to deliver the best outcomes for population health and to respond to emerging priorities. Our aim is to ensure that the system is flexible and adaptable in the future, and wherever possible to avoid the need for complex workarounds to deliver system priorities. Although section 179 was never commenced, we want to remove any potential legal uncertainty over the Secretary of State’s ability to create new NHS trusts. Clause 39 removes the lack of clarity around the Secretary of State’s ability to do so.
Clause 40 repeals paragraph 10 of schedule 4 to the 2006 Act. This paragraph allows the Secretary of State to appoint trustees for an NHS trust to hold property on trust. The clause removes the Secretary of State’s powers to appoint such trustees. In practice, these powers have only ever been used to appoint trustees to NHS charities. Historically, NHS charities were charities regulated under charity law provisions but were also linked to NHS bodies and bound by NHS legislation. This means that they were charitable trusts established under the 2006 Act and had as their trustee an NHS body, such as an NHS trust or foundation trust. The 2006 Act also allowed the Secretary of State to appoint trustees to NHS foundation trusts and NHS trusts, and to transfer property.
Since the publication of the Government’s response to the review of regulation and governance of NHS charities in 2014, it has been our policy for all NHS charities to move to independent status. Since then, all NHS charities have moved to independent status, including the 21 larger charities that had trustees appointed by the Secretary of State. Therefore, there are no NHS charities with trustees appointed by the Secretary of State, and all NHS charities are solely regulated by the Charity Commission. In light of the above, and as there is no further need for the Secretary of State for Health and Social Care to appoint trustees, clause 40 will remove such powers.
Clause 41 introduces schedule 7, which makes minor and consequential amendments relating to clauses 39 and 40 of the Bill. Clause 39 repeals section 179 of the Health and Social Care Act 2012, and clause 40 repeals paragraph 10 of schedule 4 to the National Health Service Act 2006 and removes the Secretary of State’s powers to appoint trustees. In order to implement the changes as a result of these clauses, schedule 7 makes consequential amendments to various other pieces of legislation, such as the Local Audit and Accountability Act 2014 and the NHS (Charitable Trusts Etc) Act 2016. This ensures that the changes made by the Bill in relation to clauses 39 and 40 are consistently represented throughout other pieces of legislation. These minor and consequential amendments are necessary to clarify the Secretary of State’s ability to create new NHS trusts and to remove the Secretary of State’s powers to appoint NHS trustees.
Clause 42 makes changes to the licensing regime for NHS trusts. The clause removes the exemption in the licensing regime for NHS trusts, meaning that all NHS trusts will require a licence from NHS England to operate. This reflects the intention that NHS England should manage both NHS trusts and foundation trusts, which already have to have licences, in similar ways. This has been NHS Improvement’s de facto practice for some time, and this amendment brings trusts within the scope of NHS England’s licensing and regulatory powers.
NHS England intends to use this as a means to manage all NHS providers more effectively and coherently, to ensure they are fulfilling their statutory duties and delivering high-quality, financially sustainable healthcare.
Clause 42 allows NHS trusts already established under section 25 of the National Health Service Act 2006 to be treated as having met the necessary criteria for holding a licence. That ensures that there is a smooth transition and no disruption caused by this new requirement from day one. The clause will allow NHS England to take a single, joined-up approach to licensing providers.
As the Committee will know, the Bill, as we discussed this morning, formally merges NHS England and NHS Improvement. Clause 44 delivers part of that objective. It places in statute a general function on NHS England to provide oversight of and support to NHS trusts. In effect, it transfers to NHS England the NHS trust oversight and support duty currently delegated to the NHS Trust Development Authority by the Secretary of State through directions. The clause is in addition to the power to assist and support providers in clause 6, which goes wider than NHS trusts.
The clause will transition the existing functions of the NHS Trust Development Authority to NHS England in relation to oversight and support of NHS trusts established under section 25 of the 2006 Act. It will give NHS England a basis to provide fundamental advice and guidance to NHS trusts in the exercise of their functions. It will, for example, continue to ensure that compliance with NHS trusts’ general duty, set out under section 26 of the 2006 Act, to act effectively, efficiently, and economically, is met. It will ensure that standards and the statutory duties placed upon NHS trusts are met.
The oversight duty will allow NHS England to monitor the performance of NHS trusts, allowing it to take steps to intervene where necessary. Intervention may take the form of advice and support, but may also involve NHS England requesting the trust take action to remedy emerging issues.
The clause also makes two small changes as a consequence of transitioning the provider-based functions of Monitor and the NHS Trust Development Authority to NHS England. Subsection (3) requires NHS trusts to send their annual reports to NHS England rather than the Secretary of State, and gives NHS England formal power, alongside the Secretary of State, to request information from NHS trusts.
Clause 44 is fundamental to the merger of NHS England, the NHS Trust Development Authority and Monitor. Without it, NHS England would simply be unable to fulfil its role in overseeing and supporting the health system or to discharge its responsibilities to any effect.
Clause 45 is another key provision to the merger of NHS England and NHS Improvement. It inserts proposed new section 27B into the 2006 Act and provides NHS England with the power to give directions to English NHS trusts about the exercise of any of their functions.
The Secretary of State currently delegates his general power to direct to the NHS Trust Development Authority through directions. Therefore, as part of the merger of NHS England and NHS Improvement, it is important that this function is passed on to the merged NHS England. The clause also clarifies that, as currently with the Secretary of State, NHS England can exercise that power in relation to NHS trusts’ powers to employ and pay staff and to generate additional income.
The clause will grant an overarching power to NHS England to provide direction to NHS trusts, which is equivalent to that of the Secretary of State’s power of direction under section 8 of the 2006 Act. The power of direction is intended to be used in circumstances NHS England deem appropriate. Without the clause, NHS England would not have the ability to direct NHS trusts, a fundamental mechanism within the system as it takes on the role of NHS Improvement.
Any direction made by the Secretary of State must and will take precedence over a direction made by NHS England. That is made clear in proposed new section 27B(2), which provides that any direction issued by NHS England under it will have no effect to the extent it conflicts with a direction issued by the Secretary of State under section 8 of the 2006 Act. Where the responsibility previously sat with the NHS TDA, the clause provides NHS England with the necessary ability to direct NHS trusts.
Clause 46 inserts proposed new section 27C into the 2006 Act. It provides that NHS England can make recommendations to NHS trusts in relation to restructuring and can take appropriate steps to aid applications made with respect to restructuring. Restructuring includes the merger of an NHS trust with a foundation trust; cases where an NHS trust is acquired by an NHS foundation trust; the transfer of property between NHS bodies, including NHS trusts; and the dissolution of an NHS trust.
Previously the ability to make recommendations sat with the TDA via directions given by the Secretary of State. The clause therefore allows NHS England to make recommendations on transactional processes associated with the restructuring of an English NHS trust in its newly merged form, continuing the function that previously sat with the NHS TDA. This clause will provide continuity for NHS trusts, maintaining an existing relationship that has proved valuable in the assessment of an NHS trust’s ability to proceed with transactions. It is an established practice, whereby NHS England can ensure clarity about the intended benefits of any such transaction. By accepting the clause, the transition of the power within the existing practices of the NHS Trust Development Authority to NHS England would not be compromised. These processes are fundamental to ensure that the NHS provides patients with consistently safe, high-quality, compassionate care, within local health systems that are financially sustainable.
Clause 47 inserts a proposed new section, 27D, into the 2006 Act, requiring that NHS England make recommendations to the Secretary of State to make an intervention or default order against an English NHS trust, where it considers it appropriate to do so. This function also previously sat with the NHS TDA, as provided for by directions from the Secretary of State. This clause will again provide continuity within the system, retaining the key role performed by the TDA under the new system in identifying underperforming trusts and ensuring that failings within trusts are recognised and escalated, as appropriate, so that the correct reparative action can be taken.
NHS England will continue to provide the Secretary of State with the information considered necessary for him to exercise his intervention and default powers under sections 66 or 68 of the 2006 Act. This maintains both the existing relationship, which has proved valuable in the assessment of an NHS trust’s performance, and the ability for them to carry out their functions.
Accepting this clause will provide continuity of the intervention role carried out by the TDA as it moves to NHS England and will allow NHS England to carry out its role as a system leader and to identify and escalate system failings early. Again, those processes will all help to ensure that the NHS provides patients with consistently safe, high-quality and compassionate care within local healthcare systems.
I now turn to clause 48. I reassure you, Mr McCabe, and the Committee that I am—hopefully—drawing to a conclusion. I am grateful for the Committee’s perseverance with this, given the number clauses we are debating at once. Clause 48 amends provisions in the 2006 Act relating to the conversion of NHS trusts to NHS foundation trusts. It removes the requirement in section 33 of the Act for an application by an NHS trust to become an NHS foundation trust to be supported by the Secretary of State. The Secretary of State will instead be involved in the authorisation stage. That is in keeping with the policy intention that the Secretary of State should have a strengthened role over NHS foundation trusts in the light of NHS England’s new regulatory role. The clause also amends section 35 of the Act so that NHS England must grant the authorisation, provided that it is satisfied of certain matters, set out in section 35, and that the Secretary of State approves the authorisation.
Mr McCabe, you will recall that a key element of the Health and Social Care Act 2012 and, indeed, a function given in directions to the NHS Trust Development Authority, was for the TDA to support the remaining NHS trusts to become NHS foundation trusts. As we have alluded to in discussions of previous clauses today, since 2012, the landscape within the system has changed and there is a need for a diverse provider landscape, with greater emphasis on the role of integrated care systems.
Through the oversight and support development functions placed upon NHS England with respect to NHS trusts, it will continue the NHS TDA’s role in assessing and assisting NHS trusts to become NHS foundation trusts—should they be queuing up to do so. Through this Bill, NHS trusts will remain a feature of the landscape, although the ability to become an NHS foundation trust, subject to approval from NHS England, will also be retained.
The clause also amends schedule 4 to the 2006 Act, so that, with the approval of the Secretary of State, NHS England has the power to dissolve an NHS trust, and to transfer property and liabilities on dissolution. NHS England and the Secretary of State are permitted to make the order for dissolution on the application of the NHS trust concerned, or if they consider it appropriate in the interests of the health service. The requirement that a dissolution order can be made only following the completion of a prescribed consultation, unless it is needed as a matter of urgency or following the final report from a trust special administrator, continues to apply to the Secretary of State and also now applies to NHS England.
Clause 49 gives NHS England the power to appoint the chair of the board of directors for an NHS trust, replacing the Secretary of State’s power to appoint the chair, which he currently delegates to the NHS TDA. Alongside other powers and duties given to NHS England in clauses 44 and 46, clause 49 ensures that the responsibility for oversight—and, where required, the restructuring—of NHS trusts sits with it. The clause reflects the role that NHS England will play in the management of NHS trusts. It will enable greater strategic alignment between NHS England and NHS trusts, while affording appropriate oversight of performance and delivery at a local level. Without that power, NHS England would be curtailed in its ability to provide the strategic guidance and oversight needed to deliver effective system-level leadership.
Finally, clause 50 allows NHS England to set financial objectives for NHS trusts, and requires NHS trusts to meet those financial objectives. The objectives could be set for all NHS trusts, for one particular trust, or for specific types of trust, such as mental health or community care trusts. The Bill provides that NHS England will have oversight of financial objectives across the system. To do that, NHS England has been given, elsewhere in the Bill, certain powers over ICBs and their management of financial resources. The clause allows NHS England to ensure that NHS trusts operate within clear financial objectives, which is vital for the system as a whole, ensuring that public money is spent in the most effective way for the benefit of patients and the public.
I commend the clauses to the Committee.
It is a pleasure to follow the Minister’s admirably comprehensive coverage of the clauses, which I will try to meet in similar terms.
We recognise that the clauses address a number of technical changes to the status of NHS trusts and NHS foundation trusts in this country. We do not oppose them as we think they are consistent with the broader aims of the Bill: moving us from a world of competition to one of collaboration. I recognise that there is a great deal of transposition in the clauses, so very little will be different in substance, and that is why I will probe the Minister, who may well have pulled his punches with them. Why did he not go further?
In reality, the clauses, which are a significant part of the Bill, tidy up previous Acts but do not change enough of their substance. Nothing in the clauses—as with far too much in the Bill—will make anybody better, shorten waiting times, ensure safer staffing levels, address crumbling facilities, or do anything about the other myriad issues faced by the health service and Ministers. The Bill is in danger of creating the illusion of acting without really acting, like repainting a building and pretending it is a new hospital.
On clause 39, I listened carefully to what the Minister said about there being no plans to unsettle or change the provider landscape, meaning it is necessary to end the assumption that all NHS trusts will become foundation trusts. I agree with that basic principle because the debate has moved on significantly from that. It is less about a competition-based system and more about a system of collaboration. Indeed, as the Minister said, notably, there is a greater focus on the ICS as the unit of understanding in the community rather than the acute hospital.
As a result of that, however—this is not in the Bill —we will have two tiers, or two different sets of trusts, littering the landscape. We will entrench a system of trusts that are simultaneously autonomous and not, competitive and not, responsible for their own bottom lines and not, and free to spend their accumulated capital and not. That is a mess. If we tried to explain to a dispassionate observer why different trusts could do different things, we would not be able to. Were we designing a system from scratch, we would never design it like that. I would argue that the Bill is the closest we will come to designing a system from scratch, so I am surprised that that two-tier system has not been addressed in a more meaningful way. That would send a strong signal that NHS trusts and NHS foundation trusts are fully part—not semi-detached parts—of the NHS. They are public bodies and we expect them to act like public bodies.
On clause 40, I do not think I had anything to ask the Minister beyond the points that he made. Clause 41 deals with consequential amendments.
On clause 42, and at the risk of asking a daft question, although I do not think it is, but we will find out, what is the point of licensing trusts? Is this not just creating a bogus sense of distance from the centre, when actually the rest of the Bill is designed to consolidate NHS England as the regulator, the funder and the powerful operator? Why create this licensed distance between NHS England and its providers, other than the fact that it has been custom and practice for the past 10 to 20 years to do so? Is the licence really going to be worth the bother of printing out, or is it not just a legacy of a model of independence and composition that successive Acts have featured, but from which there is now a universal keenness to move on?
I feel that we have missed the opportunity to tidy up and that in future proceedings on the Bill we will introduce an amendment to restore the private patient cap. Paradoxically, it never applied to ordinary trusts. Is that not another sign of the jumble of a system that we are choosing not to resolve? My hon. Friend the Member for Bristol South has done so much campaigning on this. What about the ability to set up sub codes, which promote tax avoidance and the undermining of NHS terms and conditions? They are a legacy of the old ways that do not fit the new ways. Do the Government really think that they still have a place in the system? Should we not have addressed that at this point?
On clause 44 on oversight, or “oversight and support” as it is in Bill, I hope that the Minister can explain how they are different in practice. Does he envisage oversight and support being different in the new world after the legislation has been passed, because we now have a different actor in the system—the integrated care boards? Where do they fit in with oversight and support? Do they stand next to the trusts that might need some extra support and extra oversight because of concern from the centre, or do they stand with the centre, sharing those concerns and providing the oversight and support, too?
The same applies to clause 47 regarding intervention in NHS trusts. Will that be any different from how it is conducted now? Where will integrated care boards fit in that? I do not want to use the word “size” but it is the easiest way to categorise it. In an intervention, we have the body that needs that intervention, presumably because it is failing, and the intervener, the responsible body that seeks for the former to improve. Where does the integrated care board sit? I do not think there is enough clarity about that.
Clause 45 allows for directions to trusts. Will there be guidance on the use of that power to ensure that relevant ICBs are involved? What if it is a foundation trust? Will the treatment be different? Is that not another undesirable symptom of a two-tier system? Similarly, what involvement or say, if any, will ICBs have on the restructuring changes set out in clause 46? Could a trust working with the Secretary of State work around that? Again, I do not get anything from the Minister’s remarks to suggest that he intended for things to be any different the day after the provision was enacted from what they were the day before. But it is different, because we have a really significant new actor, which the Minister himself said will be the unit by which we will understand the health service in a local area. Where does that actor fit into that?
That concern also applies to clause 48. We have had a laugh and a joke about NHS trusts wishing to become foundation trusts now—the fact that we have had a laugh and a joke suggests that perhaps we need to get out more—but could an NHS trust reach foundation trust status without the support of and the involvement of an ICB, or even without its engagement? I do not want to get ahead of ourselves, but it fits with this to point out that Government amendments 15 and 16 require respectively a CQC and NHS England to consult relevant integrated care boards before special administration orders are issued. That is important, and it seems perfectly sensible and we will not oppose the amendments, but if it is important to involve an ICB before a special notice is issued for a trust, surely it would be important to involve an ICB before a trust achieved foundation trust status and gained oversight and support provided by the centre, and direct intervention from the centre. I hope that the Minister can resolve that.
I am conscious that that was a rattle through the provisions. I did not wish to add anything to what the Minister said about clauses 49 and 50. However, there is a central theme: the system created by multiple Acts is officially a mess. I understand that Ministers might not be keen to talk about some of the mess relating to the 2012 Act, because it reflects poorly on the decisions taken by their predecessors. However, the mess we are addressing in these clauses involves everybody’s predecessors —there is plenty of blame to go around. I do not think they should be shy about wanting to address that, or see it as an admission of not having got things right. Surely, now is the time to deal with it. We will not get a moment as good as this for another 10 years, when we are back here discussing the next health and care Act—[Interruption.] Yes, perhaps we will discuss it when we return for the integration Bill in due course.
I do not want to divide the Committee on this point, because I do not want hinder the move to a more collaborative system. However, I know that colleagues in the other place will want to return to the theme because, as now constituted, it is very hard to explain why the new status quo that is being established is good. We are always trying to be helpful to the Minister, and there is a golden opportunity here to create a world where co-operation and collaboration replace competition, and where the sharing of data and resources becomes commonplace. If we add that to a much stronger voice for the public, for patients and for staff, things start to look as if they might be different, rather than having clauses that will not improve anybody’s healthcare. I wonder if the Minister might go a little bit further.
I am grateful to the shadow Minister for his indication of broad support for our proposals. He is right: there is a significant degree of transposition and replication of what was there before, while recognising the new landscape. He asked why we did not go further; when we debated clause 38, he accused me of going too far. I suspect, from his perspective, that the question of balance has yet to be achieved, but I think we have struck the appropriate balance.
In his opening remarks, the shadow Minister said that while this is all useful and neat, it does not address some of the underlying challenges. I would argue that the Government have set out a very clear strategy for that in the NHS Funding Act 2020—I think I stood across from the shadow Minister for that one, which was a rather shorter piece of legislation—and, of course, the recent announcement by the Prime Minister, setting out the record additional funding going into the NHS.
On the specifics, I do not believe that foundation trusts mean a two-tier NHS. There are different models, and we are not proposing to stop the formation of foundation trusts—the hon. Member for Ellesmere Port and Neston has already enjoyed asking me a polite but pointed question in that regard. However, we are not going to compel it; we are not saying that that is the direction, and therefore we do not see the need for section 179. We are not saying that everyone must move in that direction. However, we will retain the ability for them to do so, should they wish.
The hon. Member for Nottingham North raised the issue of intervention, support and similar matters. There are different definitions of those concepts. For example, on the purpose of a default order, when one of those is issued, chairholders must immediately vacate their office. The order must
“provide for the appointment…of new members of the body and…contain such provisions as seem to the Secretary of State expedient for authorising any person to act in the place of the body pending the appointment.”
An intervention order may provide for the suspension or
“removal from office of all the members”
of the board,
“or those specified in the order, and for their replacement”.
An intervention is essentially quite a strong power. I would suggest that support takes a less prescriptive form and refers—as we would all understand the term—to support, advice or guidance. There is a difference in the level and severity of the interventions required.
On equivalent treatment in respect of foundation trusts and NHS trusts, one intention behind the merger of NHS England and NHS Improvement is to bring together the way we support providers, trusts and foundations so that there is a single model of support and one licensing approach. NHS England will—I suspect through guidance—clarify further how that will work in practice.
I take the points made by the shadow Minister. He perhaps sees these provisions as an opportunity to go further and address other issues that he perceives to be challenges for the system. We have deliberately sought to make this a transposition. It is technical, but we think these technical changes are important to ensure that NHS England retains the powers it needs to support, intervene and make sure that the system works. Although I will, as always, continue to reflect on the points he makes, I commend the clauses to the Committee.
Question put and agreed to.
Clause 39 accordingly ordered to stand part of the Bill.
Clauses 40 and 41 ordered to stand part of the Bill.
Schedule 7 agreed to.
Clause 42 ordered to stand part of the Bill.
NHS trusts: wider effect of decisions
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to discuss clauses 57 and 65 stand part.
I hear the cries of disappointment from the Opposition.
Clause 43 places a new duty on English NHS trusts, and clause 57 places a new duty on NHS foundation trusts, to have regard to the wider effects of their decisions. The duty, which was described in the NHS long-term plan as the triple aim, is mirrored for NHS England and the proposed integrated care boards. NHS England will be able to produce guidance on the duty that all bodies to which it applies must have regard. That duty is also given effect by clauses 4 and 19 in relation to other bodies, which we debated earlier.
As is indicated by the name, the duty has three limbs. First, NHS trusts and foundation trusts must consider the impact of decisions on the health, including mental health, and wellbeing of the people of England. Secondly, they must consider the impact on the quality of services provided or arranged by relevant NHS organisations, including their own. Thirdly, they must consider the sustainable use of NHS resources, including their own resources.
Decisions about particular individuals are excluded. It would not be practical or appropriate to apply the duty to decisions concerning services to be provided to any particular individual—for example, treatment decisions made by clinicians. The existing duties on those bodies encourage a focus on the interests of their own organisation and those who directly use their services. Although delivery of high-quality services remains critical, the new duty will complement other changes in the Bill to facilitate co-operative working and integration. It will encourage NHS organisations to continue to look at their communities beyond the people they directly provide services to and to consider collaborative, system-wide goals.
Following the merger of NHS England and NHS Improvement, NHS England will be responsible for setting and modifying the conditions contained in the licences of NHS providers. Clause 65 adds a new purpose for which NHS England may set or modify licence conditions: namely, that of ensuring that decisions relating to the provision of healthcare services for the NHS are made having regard to all their likely effects in relation to the three limbs of the triple aim.
Given that I have just discussed the triple aim in relation to clauses 43 and 57, I will not repeat the same arguments. As a consequence of this clause, NHS England will be able to set licence conditions aimed at ensuring that NHS trusts and foundation trusts comply with the new triple aim duty. Conditions relating to the triple aim in licences will ensure that the objectives of the new duty are considered alongside providers’ other duties and licence obligations. That in turn will encourage trusts and foundation trusts to consider the wider effects of their decisions and work on collaborative goals to the benefit of the whole system.
These clauses are essential in encouraging the components of our healthcare system to work together co-operatively and considerately, with an awareness of the wider effects of their decisions. I therefore commend them to the Committee.
I, similarly, will not go on at great length. The clauses are consistent with the stated aim to move from competition to a culture of collaboration. It is therefore right that under clause 43, NHS trusts will have regard to the impacts of the decisions that they make on their neighbours, with particular reference to promoting the triple aim.
I want to press the point about what is meant by “relevant bodies” in proposed new subsection (4). The Bill states that it means NHS England, the integrated care board, NHS trusts and NHS foundation trusts. All of those, of course, make abundant sense. However, we are missing an opportunity to extend it more broadly to the health and social care family, within which the Bill is meant to promote integration. The obvious exclusion is local authorities.
In previous proceedings, the Minister chided me for jumping about in respect of whether he was going too far or not far enough. I am going to take the cheese on that. There is no inconsistency between saying that in one provision—for example, the powers of the Secretary of State—the Government are going too far, and in another—for example, the status of NHS trusts—they are not going far enough. Provided that those two things are not interdependent, of course the Government might be going too far on one thing and not far enough on another. I reserve the right to say that as I see it.
I might just go back to the Minister at this point on jumping around, because the Bill started as an integration Bill. It was going to be the great integration of health and social care, and what a moment this was going to be in British healthcare history—probably second only to 1948. Obviously, that fell apart straight away because there is not much about social care in the Bill—only two clauses out of 135. Then the Prime Minister said, “Don’t worry, we are going to come back with an integration White Paper in due course.” Presumably legislation would follow that. At that point, the Minister said that this was a paving Bill.
Foundation is even lower than paving, so I am not sure that that is a recommending analysis. Then earlier today, the Minister said that of course integration could take many forms. It could be integration of many bodies, and in this case many bodies within the NHS could be integrated. I gently say that, if we are wondering what exactly we are integrating, the title of the legislation is the Health and Care Bill, so I would start with health and care. I think we are missing that opportunity.
The reason for local authorities not being on this list may well be that we cannot bind the NHS to other non-NHS bodies, but that makes my case rather than argues against it. It is therefore not an integration Bill; it is just an NHS Bill. We will come back—that is the point. I keep saying this for a reason. We will have to come back to address that point, because the reason we are considering primary legislation is that systems have outstripped the status of legislation on the statute book. However, if we do not go far enough to catch up with them, we will have to do so in the future. There is an aspiration to do that sort of integration not just within the NHS, but within the broader health and care family. I really think that while it is not too late, we ought to consider what more we could do to put local authorities into this conversation.
As for clause 57, it is welcome that these duties also apply to foundation trusts, but it again highlights the fact that we are going to get to a point where the difference between a foundation trust and other trusts will be a distinction without a difference. We really ought to think about revisiting that, and I hope we will get the chance to do so yet.
Finally, of course it makes sense to amend licences, even if it perhaps does not make sense to have licences. I hope that the Minister can respond in particular to the point about local authorities.
I have always been clear that the Bill adopts an evolutionary rather than revolutionary approach to driving forward greater integration, not only within the NHS in a locality but between the NHS and local authorities. On multiple levels, this is a Bill about integration and partnership working, and of course one on which the Prime Minister, ambitious as he always is for this country, wishes to build and go further.
The shadow Minister asked some specific questions about local authorities. The reality is that there is a different evolution and genesis in our local government system and the social care that sits with it, compared with the NHS. Up until 1948, effectively we saw that both were local and place-based. The National Health Service Act 1946 and the establishment of the NHS in 1948 set the NHS on a different path, which essentially looked upwards. It was a national system, albeit place-based, and it was national in its accountabilities, whereas local government continues to be based around different accountabilities at a local level.
Although it is important that we do exactly what we are doing, as the Prime Minister continues to, which is to drive forward greater partnership working and integration, we have to recognise those different developmental paths and the challenges they pose. In that context, local authorities do have, as the shadow Minister knows from his time in local government, their own distinct duties and accountabilities. The triple aim should lead NHS bodies to engage with local authorities—for example, in considering the health and wellbeing of the people in England or in their area. It pushes and nudges the NHS to think more widely about how it engages.
Equally, it is important to note that there are other measures in the Bill, such as the ICBs and the partnerships, that bring together those two bodies with their distinct DNA. We want to make it easier for them to work together in partnership and to integrate further, but we do recognise those different accountabilities and approaches —one directly accountable through local councillors to a local community, and the other part of a national system. These measures, we believe, will drive the NHS to go further in having heed to those local factors. That may not fully answer the shadow Minister’s point, but I hope it goes some way to doing so. With that, I commend the clauses to the Committee.
Question put and agreed to.
Clause 43 accordingly ordered to stand part of the Bill.
Clauses 44 to 50 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Steve Double.)
Adjourned till Thursday 23 September at half-past Eleven o’clock.
Written evidence reported to the House
HCB75 Alzheimer’s Society
HCB76 National Community Hearing Association (NCHA)
HCB78 Hearing Loss and Deafness Alliance
HCB79 Independent Healthcare Providers Network (IHPN)
HCB80 East Lancashire Against Fluoridation
HCB81 Local Government Association (LGA)