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Health and Social Care Bill

Volume 735: debated on Monday 13 February 2012

Report (2nd Day) (Continued)

Schedule 1 : The National Health Service Commissioning Board

Amendment 20

Moved by

20: Schedule 1, page 275, line 13, at end insert “with the consent of the Health Select Committee of the House of Commons”

My Lords, I shall refer also to Amendments 21, 21A and 22. The amendments take us to a number of other matters in relation to the national Commissioning Board. I think that we are all agreed that the board will have an important role to play within the new arrangements, and its governance is a matter of considerable interest. My amendments, which follow closely amendments that I tabled in Committee, invite the noble Earl, Lord Howe, to give further consideration to how we can ensure that the governance of the national Commissioning Board is as effective as possible and that due parliamentary processes are involved.

The amendment would ensure that the chair of the national Commissioning Board was appointed only with the consent of the Health Select Committee. I am well aware that Professor Grant, the excellent chair of the board, gave evidence to the Health Select Committee and I am glad that that occurred. I should like to put the matter beyond doubt by putting this provision in statute for when future appointments of chairs need to be made. The noble Earl will know that I have followed precedent because this Government’s legislation that established the Office for Budget Responsibility makes it clear in statute that the appointment of its chair has to be agreed to or approved—or consent has to be given—by the appropriate Select Committee. My argument to the noble Earl is that the national Commissioning Board is as important as the Office for Budget Responsibility. I realise that one could look at a hierarchy of these organisations and I would understand if the noble Earl were to say that we cannot apply this provision to all bodies in a similar position. However, the responsibility of the national Commissioning Board is immense and there is a case for putting this in statute.

I sense that my Amendment 21 may not be necessary, but perhaps the noble Earl can confirm that the vice-chair of the national Commissioning Board would always be a non-executive appointment and that that person would always be the senior independent director.

Amendment 21A concerns public health specialist input. I should like some assurance from the noble Earl that the national Commissioning Board will have public health expertise. I understand that it is to have a medical director—and that is of course welcome—but, given the need to ensure that in the NHS, through the Commissioning Board and clinical commissioning groups, there is a good tie-in to the public health function, it would be good to know what arrangements the board will make to ensure that there is a strong enough link with public health. Having public health expertise around the board of the national Commissioning Board would, I should have thought, be very welcome indeed.

I come, finally, to my Amendment 22, which would remove the requirement for the appointment of the chief executive to be approved by the Secretary of State. I said in Committee that I had no problem with the provision that ensured that the first chief executive should be appointed by the Secretary of State. That is normal practice when new bodies are established. In order to get on with it, you clearly need to have a method by which the chief executive is put in place as soon as possible. I quite understand why it should be the Secretary of State in the first instance, but I do not understand why future appointments of chief executives should have to be approved by the Secretary of State.

Back in our debates on bureaucracy and the issue of the concurrent power of the national Commissioning Board with the Secretary of State in relation to the crucial parts of Clause 1, the noble Earl emphasised that the relationship between the Secretary of State and the national Commissioning Board should be seen principally through the mandate and the standing rules. He resisted my efforts to give Ministers powers of intervention other than the extreme power given under the Bill. If that is so, I cannot for the life of me see why the Secretary of State would want to approve the appointment of the chief executive. Surely the relationship should be between the Secretary of State and the chairman of the national Commissioning Board. Why must the Secretary of State have a veto on the appointment of the chief executive? That seems inconsistent with the general points that the noble Earl has been making about the need for the Secretary of State to have a hands-off approach.

The noble Earl may repeat what he said in Committee, which is that that is to do with the accountable officer status of the chief executive. With the greatest respect, is that very different from the accountable officer status in relation to many organisations within the NHS where the Secretary of State does not have to approve the appointment of the chief executive? I hope that at least on this one the noble Earl will recognise that Secretary of State approval for the appointment of a chief executive is wholly inconsistent with the general thrust of where the Government say that they are going, and will be sympathetic. I beg to move.

My Lords, I trust that my noble friend will not object if I claim at least parliamentary paternity of Amendment 21A—influenced, I must say, by the Faculty of Public Health and others interested in the public health dimension of the Bill. The Faculty of Public Health is a very respectable body, characterised, along with other opponents or critics of the Bill, by Mr Simon Burns, the Minister of State for Health, as zombies, a term that I cannot imagine emerging from the lips of the noble Earl. It is concerned about the degree to which the public health service and its interests and needs will be reflected in the structures that are being created. That interest is shared by the Health Select Committee.

The Health Select Committee also referred to its recommendation that the local director of public health should be a member of each clinical commissioning group. Having regard to the number of clinical commissioning groups, that is possibly asking a little much, although it would be sensible for clinical commissioning groups to consult the director or his representative from time to time in the course of their work. However, my noble friend is absolutely right to stress the importance of having a qualified public health professional on the national Commissioning Board. Public health is an enormously significant area of public policy, and we will discuss other aspects of it later this evening and subsequently during Report. The Health Select Committee was very clear that there should be a qualified public health professional on the NHS Commissioning Board and that the Commissioning Board should routinely take advice from qualified public health professionals when taking commissioning decisions.

The Government’s response to the Select Committee’s report is, to put it mildly, not very encouraging. While the board will be required to obtain clinical advice from a broad range of professionals, including those in public health—and the Government have stated their intention that there should be clinical and professional leadership on the board—they state explicitly that,

“it is an important principle … that it”—

that is, the board—

“should have autonomy of decision-making on matters such as its own membership and its structures and procedures, as far as possible, to determine how best to exercise its functions”.—[Official Report, 14/11/11; col. 514.]

That seems, frankly, to put an unnecessary degree of power in the hands of the national Commissioning Board. It again raises the issues of accountability that my noble friend dealt with so well earlier this evening. It is surely not acceptable to permit an organisation with this degree of power and influence—and, indeed, with the substantial resources at its disposal—simply to decide on its own membership, particularly when public health is not just a health service or Department of Health issue but goes much wider than that. It is important that those wider implications of the work of public health, which we will touch on later, are reflected in the board’s deliberations as a matter of course.

I hope that the Government will take the strong advice of the Health Select Committee and reconsider this position. I have no doubt that there will be a queue of other organisations wanting a place on the national Commissioning Board, but this is, in a sense, a unique function because of its reach into other areas of policy and administration, including, for that matter, other government departments. That voice, reflecting all those interests, is not likely to be represented directly in the way that other clinical interests probably will be in relation to the board. Therefore, I strongly support Amendment 21A, as well as the other amendments in the name of my noble friend. I hope that the Government will see their way to rethinking this matter and come back at Third Reading with a different position.

My Lords, I agree strongly with the noble Lord, Lord Beecham. Public health has always been the Cinderella of the health services, yet it should not be. It is obviously crucial to the whole attempt to reconfigure services, and it is crucial to the emphasis on preventive health that we badly need if we are to stop things such as the very rapid increase in the incidence of diabetes in this country, especially diet-related diabetes. It is important that the public health service is seen by the whole of the public as central to the Government’s proposals for bringing services together. It is essential that we now publicly recognise the very great importance of the public health service and raise it to a level at least equal with other parts of the health service, including clinical commissioning groups.

As the noble Lord, Lord Beecham, said—I thought rather modestly—we accepted that it was too much to expect to have a public health officer on every commissioning group, although there is a very strong case for having one where a commissioning group is happy to have him or her. However, in the case of the board, which after all overlooks the whole CCG structure, it is absolutely vital that a public health officer should be present and should be able to put emphasis on preventive health. It would also be a signal to the health and well-being boards at the local level to follow that lead and themselves put a great deal of emphasis on preventive rather than only curative health.

I think that the noble Lord, Lord Beecham, should get the support of all parties in the House as he has put forward something perfectly sensible and moderate. What the noble Lord, Lord Hunt, was saying about this group of amendments is important, particularly on Amendment 21A, and I hope that the Minister listened very carefully, as I believe that he has a great deal of sympathy with the importance of public health. This will be a very important way in which to underline that in the manifesto.

It is fair to say that the board should make its own decisions on some of the membership, but I agree with the noble Lord, Lord Beecham, that the sheer significance for all the reforms of public health is such that this should be on the face of the Bill and that it should not be left entirely to the members of the board to decide on. There is plenty of room for them to reach their own decisions, but this involves the whole of the Government’s strategy. I very much hope that my noble friend will suggest that the Bill could carry this amendment in it.

My Lords, I have a question for the noble Earl on this amendment. What will be the relationship of Public Health England, the national body that will take over the functions of the Health Protection Agency and other areas, to the national Commissioning Board? I wonder whether the noble Earl can guide me to the statutory framework for Public Health England, as it does not seem to be in this long Bill, although it is possible that I am just incompetent and have not spotted it. It seems to me that the chief officer—I hope that he will be a highly qualified public health specialist—who is the senior officer in Public Health England, should have a seat on the national Commissioning Board. That should perhaps not necessarily be permanent, but he should be consulted frequently by the Commissioning Board.

My Lords, I thank the noble Lord, Lord Hunt, and all noble Lords who have spoken in another excellent debate. I understand the arguments that have been put forward in favour of these amendments. It is important for me to say at the outset that the Government’s general approach is to allow the NHS Commissioning Board as much autonomy as possible in determining its own membership, structures and procedures. It is our firm view that the board is the body best placed to determine how to organise itself in the most effective and efficient way. We would not want to undermine that.

It is also worth restating that, looking across government, it is the responsibility of all departments to ensure that public appointments to arm's-length bodies are open, transparent and made on merit. However, it is not government policy for such appointments to be subject to Select Committee approval—in this case the Health Select Committee. These are ministerial appointments. The Secretary of State is ultimately accountable to Parliament for the performance of the health service as a whole, as we have made clear through amendments to the Bill. The current process under which some posts are subject to pre-appointment hearings by a House Select Committee does not represent a power of veto, which the amendment would amount to. Of course, noble Lords will be aware that we followed this process, as the noble Lord, Lord Hunt, reminded us, in the recent appointment of Professor Malcolm Grant as the chair of the NHS Commissioning Board Authority. When we discussed this last in Committee, I was pleased that the noble Lord, Lord Hunt, said that he thought that this process ensured proper and effective scrutiny of that appointment. I gently wish to hold him to that view. He raised the comparison of the Office for Budget Responsibility, saying that the NHS Commissioning Board was just as important. Importance is not the issue. The Office for Budget Responsibility has a unique role because it has dual accountability to both government and Parliament directly. The NHS Commissioning Board is accountable to government and, through Ministers, to Parliament, which is somewhat different.

I turn to Amendments 21, 21A and 22. We recognise that the Bill strikes a fine balance between giving the board as much autonomy as possible in how it operates, and providing the necessary accountability. It is important to strike that balance accurately and consistently. If we were so prescriptive in the Bill as to set out further requirements for the board's membership, we would be moving too far away from that necessary autonomy. It is right that it should be up to the board to decide whether it has a vice-chair or a senior independent director, as Amendment 21 suggests. Of course, a vice-chair or deputy chair, were they to be appointed, would have to be non-executive.

Likewise, while I agree that it will be key to the effectiveness of the board for it to involve and obtain sufficient advice and input from public health experts, and to have public health well within its purview, it would not be right to specify that it must have a public health specialist as a member, as Amendment 21A proposes. Again, I am sorry to disappoint my noble friend Lady Williams in particular, but we think that the board will be best placed to determine whether it has the right structure and range of skills, knowledge and experience appropriate to the issues that it will face. In the material that David Nicholson published he made it clear that, rather than making token appointments, he intends that clinical leadership will run right through the organisation. That is a very reassuring statement.

Amendment 22 takes the Secretary of State out of the loop of appointing the chief executive. That moves us too far away from one of the key principles that most of us have signed up to: the necessary accountability of the board to the Secretary of State. It also seems at odds with the ethos of other amendments proposed by the noble Lord, such as Amendment 19, which we debated on the first day of Report and which sought to make every other aspect of the exercise of the board's functions subject to direction from the Secretary of State.

My Lords, there is some confusion outside the House about the relationship between the Secretary of State, the chief executive and the other senior appointees. The chief executive’s appointment was made before there was a board and a chair, but seems to be permanent. It is very unclear what the process will be for appointing directors. Have the Government a view on the governance of those sorts of arrangements, because the governance in this case does not seem to match what people expected in other areas of policy?

My Lords, I will attempt to answer the noble Baroness in a moment. She is right that the chief executive designate, Sir David Nicholson, was appointed before the establishment of the NHS Commissioning Board Authority. My right honourable friend felt that not only was it a sensible and good appointment, as we think very highly of Sir David—as most people do—but that it would provide continuity for the NHS. I hope that the noble Baroness accepts that it was a rational decision. As I outlined, Malcolm Grant, too, was the Secretary of State’s appointment, as was appropriate. I will probably have to come back to the noble Baroness on the non-executive directors because I am not aware of the precise timescale or mechanism for doing that, but I will enlighten her as soon as I possibly can.

The noble Lord, Lord Rea, asked me about the relationship between the board and Public Health England. Public Health England will be an executive agency carrying out functions of the Secretary of State with relation to public health. Those functions are conferred on the Secretary of State primarily through Clause 10. As regards the relationship between the two bodies, the simplest way of putting it is that they will work very closely together on public health issues. I have no doubt that there will be a number of ways in which Public Health England will commission public health services from the board in one or other of the aspects of its health protection role.

To get back to what I was saying before the intervention, the Official Opposition at one moment want the Secretary of State to be hands on and at another moment to be hands off, so perhaps I am entitled to feel a little confused about the direction that they are coming from here. The noble Lord, Lord Hunt, questioned the rationale for the Secretary of State appointing the chief executive. As I said in Committee, the requirement for the Secretary of State to consent to the appointment of the chief executive of the board is included for the very important reason that the chief executive of the board will be the accounting officer for the commissioning budget—more than £80 billion of public money—for which the Secretary of State is accountable to Parliament. It is entirely appropriate in our view that the Secretary of State should approve his or her appointment. It is quite usual for chief executives of non-departmental public bodies to be designated as the accounting officer by the department to which they are accountable.

I hope the noble Lord will agree on reflection that we have struck an appropriate balance between autonomy and accountability in the current provisions for appointments to the board and that he will be content to withdraw his amendment.

My Lords, I am very grateful to the noble Earl, Lord Howe. He thinks that I am being inconsistent with some of my amendments, but I still believe that at this stage it is appropriate to put forward probing amendments. If I am inconsistent, I am trying to point up the inconsistency in the Government’s approach, which is that on the one hand we are told that the national Commissioning Board is to be at arm’s length from the Department of Health and Ministers, but then we find that it is at such arm’s length that the chief executive has to have his appointment approved by the Secretary of State.

On parliamentary hearings, the noble Earl said that the Office for Budget Responsibility is rather different from the national Commissioning Board because it has a unique role in being dually accountable to government and to Parliament. My argument is that the national Commissioning Board is different from many other public bodies because of the concurrent powers it is given in Clause 1 and the fact that, unlike many bodies, it does not have a straightforward ministerial power of direction, as we have discussed. The Government have deliberately sought to put it on a different plane. For that reason, it would have been useful for them to have followed the example of the Office for Budget Responsibility and given the appropriate Select Committee a veto over the appointment of the chairman. As I said earlier, I accept that the Government have certainly gone halfway in the sense that Professor Grant appeared before the Health Select Committee. That is very welcome, and I am sure it sets a precedent for the future.

On public health representation on the board, for which my noble friend Lord Beecham and the noble Baroness, Lady Williams, argued, I hope that the national Commissioning Board will take account of the views expressed in your Lordships' House to ensure that there is strong public health input at the NCB level.

The first point the noble Earl made was that the national Commissioning Board is to have as much autonomy as possible. If it is, then it jolly well has to show that it is going to be accountable. I hope that the NCB will give parliamentarians a regular opportunity to discuss with it its programmes and the way that it is going to work in the future. I would be very concerned if, through the autonomy philosophy, Ministers in one way or another resisted debates or interventions in relation to the actions of the NCB and the NCB itself proved not to be open to having debates with parliamentarians. That is where the problem may well arise.

We will have to see but I for one hope that the national Commissioning Board will accept that it has been given enormous power—albeit with some constraints, which we have discussed today—and that it has to show it is going to be properly accountable for it. I beg leave to withdraw my amendment.

Amendment 20 withdrawn.

Amendments 21 and 22 not moved.

Clause 9 : Clinical commissioning groups

Amendment 23 not moved.

Clause 10 : The Secretary of State’s duty as to protection of public health

Amendment 24

Moved by

24: Clause 10, page 5, line 8, after “protection” insert “and promotion”

My Lords, I will speak to the amendments in my name in this group. They are, in many ways, fairly straightforward.

Amendment 24 seeks to add a duty to promote public health as well as to protect and improve public health, as in the Bill as it stands. Promotion is a more positive term than simply protecting or improving public health. It implies a wider range of activities than simply dealing with public health issues and problems as they arise. I would have thought it added somewhat to the Government’s intentions—which we broadly commend, of course—in terms of the direction of public health and the further involvement of local government.

Amendment 25 simply amplifies the list of steps that the Secretary of State may take, in particular around research and training, to specify that he should use,

“the best scientific and other evidence available”,

with this key phrase,

“without regard to special interests”;

in other words, that they should look objectively and seek a wide range of resources to inform the making of public policy.

Amendments 26 and 28 substitute the word “must” for “may” in respect of some of the Secretary of State’s duties. Amendment 27 is perhaps one of the more important in this group, and refers to a duty on local authorities to improve the health of their populations and “to reduce health inequalities”.

In Committee, the Minister referred to the fact that the Secretary of State has that duty as part of his overall duty to provide health services, and that is certainly correct. However, there is no equivalent express duty on local authorities, nor could one be satisfactorily implied. Again, I pray in aid the views of the Health Select Committee, which pointed to:

“The lack of a statutory duty on local authorities to address health inequalities in discharging their public health functions”,

and called that,

“a serious omission in the Government’s plans”,

and recommended that the,

“Bill be amended to rectify this”.

The Government’s response referred to local authorities as “independent, democratic bodies” and said that a,

“ring-fenced public health grant”,

would be made available. At a later stage we will perhaps need to discuss the arrangements for such a grant, because there are concerns about it and about the health premium to which reference is also made in the Government’s response. The Government conclude that,

“these non-legislative levers will be at least as effective as any duty”.

Of course the Government refer to the provisions of the Equality Act, but that is not good enough. Surely it is important to have in the Bill an explicit duty on local authorities to promote health equalities and health improvement. I hope that the Minister will recognise on reflection that the Government will lose nothing by taking such a step. The Government would simply reinforce their intentions and put them in a framework that will send a clear signal to local government.

Amendment 28A, in the name of the noble Baroness, Lady Finlay, seeks to require co-operation between local government, the Secretary of State and quite a list of providers of public health. The amendment is virtually the same as Amendment 28C in my name. There are perhaps one or two slight differences but nothing of any great moment in that respect. I am perfectly happy to defer to the noble Baroness when she moves her amendment.

Amendment 29 seeks to establish the topics of public health that should be included in matters to be addressed by local authorities. The intention, again, is to put in the Bill what may or may not be implicit in the prevailing arrangements. In Committee, the Minister indicated that he did not think that it was necessary to have these references. On the contrary, it is helpful to send a signal of what is expected not only to local government but to those who look to their local authorities to take steps to promote public health on the issues. The list in Amendment 29 includes:

“sexual health … obesity … nutrition … alcohol and substance abuse … air and water quality … adequate housing standards … fuel poverty … occupational health”.

Those are all important issues, most of which also involve inequalities of health. The provision looks very clearly to local government to take those items seriously and to promote advances on each. It is not a mandatory requirement and, of course, the situation will vary from place to place. However, it is a shopping list for local government, citizens and interested organisations to use in pressing that policies and resources be directed at these important areas of public policy. As the amendment makes clear, it is not a restrictive list.

Amendment 31 deals with another issue raised by the Health Select Committee, although it is a matter that we also discussed in Committee. Among the partners of a local authority for the purposes of public health provision, it is very important to include the district councils. In two-tier areas, district councils have a wide range of responsibilities around the environment, housing, food safety and so on, which clearly are integral to the public health service.

It is obviously necessary therefore for a principal authority in a two-tier area to co-operate with a district, but also, conversely, of course, for the district to co-operate with the principal authority. The amendment specifically calls for the relevant partners to co-operate with the local authorities and for it not to be just a one-way street. Again, that raises an expectation on the appropriate local authority and the opportunity for its residents to push for action, if required.

Amendment 32 calls for the Secretary of State to publish annual reports on the public health impacts of budget changes on duties to improve public health. That is a glancing reference to the fact that there is to be a new financial framework and it is important to see how that impinges on what local authorities actually do, and that of course includes district councils. Again, I should emphasise that the position of district councils is yet another matter on which the Health Select Committee was very clear in its recommendations:

“We are concerned that too little attention is paid in the Government’s plans to the role of lower-tier authorities”.

The Government are relaxed, shall we say, about doing anything very specific about that, although apparently they will be issuing draft guidance. It might be thought that that is not really adequate in all the circumstances and that explicit reference should be made to the requirement to involve district councils.

As I said in Committee and I repeat today, the Opposition are keen to support the Government’s approach to returning many public health responsibilities to local government, but it has to be done in a way that encompasses the broad range of issues that affect individuals and communities, and empowers and indeed requires local government that they should take action to meet their part in discharging those responsibilities. Accordingly, I beg to move.

My Lords, I do not know if it is a slight slip on the part of those who drafted the Bill that the word “promotion” is not already in the clause. The coalition agreement on public health states:

“The Government believe that we need action to promote public health, and encourage behaviour change to help people live healthier lives … harnesses innovative techniques to help people take responsibility for their own health”.

That is a bit unfair on people because lifestyles are very much dependent on life chances. People who come from a rotten background may indulge in practices which are not particularly good for their health, but you cannot really ask them to change. We need to take into account a lot of the things which my noble friend Lord Beecham has just gone through because they are relevant to the practice of public health. The word “promotion” should definitely be included at the beginning of this clause.

My Lords, in Committee noble Lords made a number of helpful and constructive comments on public health. We have carefully considered this feedback, and as noble Lords will see in later clauses, we have made some significant changes to the public health provisions. Amendments 24 and 28 both relate to the Secretary of State’s accountability and his role in the promotion and improvement of health. The Secretary of State is under a duty to protect the health of the public in England. We are clear that the primary legal responsibility for health improvement should lie with local government, although the Secretary of State will have the power to act on health improvement when appropriate. We welcomed what the noble Lord, Lord Beecham, said in Committee about a renewed involvement of local government in public health, and he has reiterated that today. It is extremely important that local government, which is often best placed to take this forward, sees its prime legal responsibility and that there is no duplication of duties. Therefore, in drafting Clauses 10 and 11, we have taken care to avoid duplicating duties and to keep roles and responsibilities clear. We do not believe that additional amendments to the Bill are needed and I hope that noble Lords will understand why we have drafted these provisions in this way.

Amendment 26 takes the list of steps that the Secretary of State may take as part of his health protection duty and turns it into a set of fixed duties. I hope that I can reassure noble Lords that the Secretary of State cannot simply ignore the steps even though we have used the word “may” and not “must”. He must give proper consideration to what steps are appropriate to protect or improve health. Although the duty does not necessarily require the Secretary of State to take all the steps listed under new Section 2A, if after proper analysis he considers that a particular step is appropriate, he must take it. However, we take the view that the Secretary of State needs the flexibility to decide what steps are appropriate. The Bill outlines the areas in which the Secretary of State might take action. It fleshes out the ways in which the Secretary of State must take steps to protect the public. To prescribe these exemplars in statute runs the risk of inflexibility. One duty in the list, for example, is to make available the services of any person or any facilities. What would that mean if it was made a “must”?

Amendment 29 would set out specific public health issues that must be addressed by the steps taken under this duty. Although the amendment clearly indicates that the list is not exhaustive, it could still give undue precedence to the issues named; for example, by including occupational health but not smoking cessation. We agree that in certain circumstances some steps or services should be mandated, but we intend to do this through secondary legislation. I agree with the noble Lord, Lord Beecham, that the issues that he emphasised are important. However, I would refer him to the public health outcomes framework, which covers the areas comprehensively. I hope that noble Lords have seen that and will welcome it. The framework also gives indicators of how these areas can be evaluated. For example, the framework includes indicators on air pollution, fuel poverty and statutory homelessness. I hope that that fleshes out the intentions behind this legislation and that noble Lords will be reassured.

In Committee, we discussed at some length the importance of reducing the harm caused by the misuse of alcohol. In the light of those discussions, Amendments 157 and 158, tabled by the Government, will ensure that a local authority with responsibility for health improvement will have a role to play in the licensing of premises for the sale and consumption of alcohol. We expect these functions to be the responsibility of the director of public health.

A number of the amendments in this group address issues of co-operation that we also debated in Committee. We do not believe that further amendments to primary legislation are needed in this area. Local authorities are already under a duty to co-operate with NHS bodies in order to secure and advance the health and welfare of the people of England and Wales. The outcomes framework, which I have already referred to, will encourage further co-operation. It contains details of how the different levels of authority work with each other; for example, incentives for upper-tier authorities to co-operate and share resources—which was a concern of the noble Lord previously—with district councils. As the noble Lord is well aware, district councils are responsible for a number of services that have a direct bearing on the framework indicators—education and housing, for example.

Amendment 32 would require the Secretary of State to publish a report on impacts of budget changes on health improvement. We discussed this proposal constructively in Committee, but the Government do not consider that such a specific amendment is needed. The Secretary of State will be under a duty to produce a report on the performance of the health service in England.

Amendment 27 would require local authorities to take steps as appropriate to reduce health inequalities when exercising their public health improvement duties—the noble Lord, Lord Rea, also made reference to that. We have made amendments to require the Secretary of State to include in his annual report an assessment of how effectively he has discharged his inequality duty, which is an overarching duty applicable to the whole service. That would obviously relate also to local government. Therefore, do not feel that it is appropriate to make further legislative changes.

We can also promote local authorities’ role in reducing inequalities in other ways. Again, I refer noble Lords to the outcomes framework, which takes a very wide view of public health and emphasises the need to reduce inequalities within that. If noble Lords look at the range of issues addressed within that framework, they will see that it is very clear that addressing these areas helps to address inequalities and that local authorities would not be carrying out their responsibilities appropriately if they were not seeking to achieve that.

Will the Minister clarify what the sanctions are when there is a failure to co-operate? Examples of failure to co-operate are emerging already. While there is an outline duty in the Bill, what are the sanctions when that is not happening?

Local authorities have a statutory responsibility for public health. If the noble Baroness looks at the outcomes framework, she will see where different authorities have different responsibilities. In order to discharge those responsibilities, those authorities will have to work together, otherwise they will not be able to deliver those outcomes.

In response to Amendment 25, we entirely share the view that we must make use of the best scientific and other evidence available. However, we do not think that an amendment to the Bill is necessary to do this. If the Secretary of State is to carry out his duty effectively, he must necessarily obtain and use such advice.

I heard how the noble Lord, Lord Beecham, read out the amendment. It is clear that evidence must be sought without it being skewed in any way by any special interests. However, the way in which the amendment is drafted implies that the Secretary of State might not be able to consult legitimate professional organisations or stakeholder groups that may have relevant expertise and experience. I made that point in Committee. We agree, clearly, that the inappropriate influence of special interests would not be right, but that is not quite how the amendment is drafted.

The Government’s Chief Medical Officer will continue to provide independent advice to the Secretary of State on the population’s health. She will be supported in this role by a public health advisory forum that will bring together expert professionals and leading partners to assist her in providing advice and challenge on public health policy and implementation. I hope the noble Lord will be reassured about that. The use of evidence underpins all this and there is no intention whatever that it should be skewed in any way. I trust that that reassures noble Lords and that they will not press their amendments.

My Lords, given the number of issues on which there are serious disagreements around the House, certainly between the Opposition and the Government, this is a shame. On an issue on which we basically agree in principle, the Government have been entirely negative about suggestions made not merely by the Opposition—heaven forfend—but by the Health Select Committee, which is less prone to charges of any sort of political bias.

I find it almost risible that the Minister should single out one line in the amendment that deals with the Secretary of State's duties in the clause by transforming an option,

“making available the services of any person or any facilities”,

into a mandatory requirement. I agree that perhaps we could have taken that particular line out, but the principle of getting stuff properly into the Bill remains important. All the other items ought to be part of the Secretary of State’s mandated responsibilities.

The Minister referred repeatedly to frameworks, but frameworks are not statute and not something that is immediately accessible to the public or others. Statute should set out a fairly comprehensive picture of what the Government intend, and there has been a failure to take the opportunity to do that, whether in promoting public health or in any of these other matters. It is perfectly true that government Amendment 144 will give the Secretary of State the responsibility of reporting back on how he has exercised his responsibilities, but he is not responsible for what is being delegated to local government. He may undertake to report back on what local government is doing, but there is no obligation on him to do so, as I read the Bill. Yet the whole issue of local authority responsibility in relation to the public health agenda, and in particular to inequalities, after—I remind your Lordships—a very strong recommendation from the Health Select Committee, could be ignored in practice. That cannot be satisfactory.

With all due respect to the Minister, I cannot say that I found her replies at all convincing or helpful, and it is a pity that in an area in which we could have worked together to improve the Bill there seems to be no inclination to do so, since the Government are simply standing pat on their original proposals, with a few very minor amendments. If that is how the Bill is going forward, I think they are missing an opportunity, but that is their responsibility. In the circumstances, since there is clearly no evidence of any intention to be flexible on the part of the Government, I reluctantly beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Amendments 25 and 26 not moved.

Amendment 26A

Moved by

26A: Clause 10, page 5, line 18, at end insert “, including screening for communization needs”

My Lords, I rise to speak to Amendment 26A and the others in this group on behalf of my noble friend Lord Ramsbotham, who was unable to stay until this hour tonight. My noble friend was first going to explain, and apologise to the House, that the amendments, as handed to the Public Bill Office, included the word “communication”, which somehow turned into “communization” during the printing process. My noble friend was then going to thank the noble Earl for his letter, which he received on Friday, and invite him to confirm to the House what he said in that letter about the healthy child programme. The letter said that the programme,

“provides regular opportunities after birth for the parents and the health visitor to review together a child’s development, health and wellbeing including any concerns about speech and language skills”.

My noble friend was very glad to note that the Department of Health and the Department for Education and Skills are working together to ensure that the two-year to two and a half-year review that is part of that becomes an integrated review covering both health and education, which he assumes is to be compulsory. He also noted the work that was being done within the public health outcomes framework to inform decisions on services and support. However, accepting all that, he noted that, in her final report, the communication champion recommended that the Government should fund local professional development for early-years practitioners to enable them to assess and support children's communication and language development within the revised early-years foundation stage framework that is part of the public health outcomes framework. There is a possible shortfall, so my noble friend would like to ask the Minister whether that includes training of health visitors, who will make initial assessments, and a halt to the reduction of speech and language therapists, whose numbers were reduced by 3 per cent in 2010-11. Their follow-up is crucial to successful post-assessment development support. Equally crucial is that health and well-being boards understand that speech and language development not only underpins literacy development but is at the heart of the Government's proposed revisions to the early-years foundation stage framework. My noble friend seeks the Minister's additional assurance that assessment and follow-on action are properly integrated.

Speaking now for myself in support of these amendments, I have had personal experience in my family of a child needing the specialist help of speech and language therapy to be able to acquire sufficient language for day-to-day communication. The battle to provide adequate speech therapy for pre-school and indeed for primary schoolchildren has been ongoing for many years. I know that my noble friend Lord Ramsbotham was not proposing to test the opinion of the House, but I beg to move this amendment tabled in his name.

My Lords, in supporting this group of amendments to which I have put my name, perhaps I may first say how grateful I am to the Minister for his letter of 29 November in response to the Committee debate. He confirmed in that letter that speech language and communication needs are included in the remit of public health. This group of amendments simply makes that clear for the Secretary of State and for commissioning groups. I suggest that it would not otherwise be clear. Look at what has happened: 70 per cent of British Sign Language users admitted to A&E units will have no interpreter provided. Increasing numbers of people with hearing loss have problems even with making appointments and understanding the diagnosis of their GP.

Since Committee, as the noble Lord, Lord Ramsbotham, would have said and as the noble Baroness, Lady Hollins, said, the report of the communication champion, Ms Jean Gross, has been published with further evidence of cuts by 10 local authorities to speech therapy services of more than 15 per cent. The Royal College of Speech And Language Therapists reports that 70 of 109 such services jointly funded by the National Health Service and the education authorities had lost the NHS element. More than half of newly qualified speech therapists have not found jobs. This crisis in the provision of speech and communication therapy means that for a significant proportion of children with these conditions—I remind the House that it is the most common disability of childhood, which substantially limits the chances of reaching their potential at work and even in relationships—this problem will be neglected without the kind of emphasis that these amendments provide. It needs to be clear that the health duties will include communication needs.

My Lords, briefly, we support these amendments and commend the noble Lord, Lord Ramsbotham, and my noble friend for tabling them again because they are indeed important. I got quite excited when I saw the original spelling which was out there because I was thinking, “Is this about TB or HIV? This is a new one on me”. Nevertheless, this is a very important group of amendments because, as the noble Lord, Lord Ramsbotham, and other Members of the House have pointed out over many years, if you do not deal with the communication, speech and language problems of children at an early stage, you are storing up problems for the future. Indeed, Jean Gross’s report on front-line speech therapy for children is a cause for great concern, because it is quite clear that significant gaps are already appearing because of the cuts that have been made to provision.

I point out to the House that the allied health professionals have expressed their very grave concern about these issues by saying that they would like the Bill not to proceed. They are among the many thousands of health workers who, in this case, have been saying that for some extremely good reasons. Perhaps the noble Baroness would like to explain to the House what she is doing to persuade the allied health professionals and the speech and language therapists why the Bill will help them do their job any better, when it is quite clear that the services to children with speech and language therapies are already suffering.

My Lords, we are very sympathetic to the points that the noble Baronesses, Lady Hollins, Lady Whitaker and Lady Thornton, have just made. The noble Baroness, Lady Hollins, is quite right about the importance of communication skills—or even “communization skills”; my dyslexic son latched on to that one. We are acutely aware that addressing these kinds of areas is critical to the reduction of inequalities.

The noble Baronesses, Lady Hollins and Lady Whitaker, were concerned to ensure that we had flagged up this area. My noble friend Lord Howe sent a letter to the noble Lord, Lord Ramsbotham, who has worked tirelessly in this area. I emphasise that the Healthy Child programme, from pregnancy to five years, is the overarching NHS framework for providing prevention and early intervention for children and their families, and consists of a programme of screening, immunisation and health and development reviews. It is led and delivered by health visitors. It provides regular opportunities after birth for the parents and the health visitor to review together a child’s development, health and well-being, including any concerns about speech and language skills. We are working to improve the coverage of the HCP by delivering the Government’s commitment to increasing the health visitor workforce by 4,200, full-time equivalent, by 2015.

As part of the HCP’s schedule, the review at two to two and a half years includes a focus on speech and language development and is a key opportunity for health visitors to identify any problem and to take appropriate steps to refer a child to speech and language therapy if required. Following the commitment in the July 2011 publication Supporting Families in the Foundation Years, the Department of Health and the Department for Education are working together to develop the two to two and a half year review to become an integrated review, covering both health and education. The Department of Health is also leading a piece of work to develop a population measure—

How does the Minister reconcile what she has just been telling us about referring children to that service after review at two and a half years with the fact that 70 local authorities have lost their NHS funding, 25 have lost cash from the LEA and those speech and language therapists are actually not going to be there?

I would refer the noble Baroness to the public health outcomes framework and the way that this will be included in that. The framework is very widely drawn and I hope that the Opposition will generally welcome that. It builds on the work that they themselves did and I hope that they recognise that.

I think that I have covered most of the issues that were flagged up. I reiterate that we appreciate enormously the commitment that noble Lords have paid to this area. We know how important it is; it sets the foundation for what happens later for many of these children. On the basis of that, I hope that the noble Baroness will be willing to withdraw the amendment.

My Lords, I know that my noble friend was extremely grateful for the letter from the noble Earl, Lord Howe, on this matter. Communication is fundamental and screening is critical. We know that early intervention is effective. I am disappointed that the Minister did not confirm whether there would be a halt to the reduction of speech and language therapists. I beg leave to withdraw the amendment.

Amendment 26A withdrawn.

Clause 11 : Duties as to improvement of public health

Amendments 27 to 29 not moved.

Amendment 30 had been retabled as Amendment 28C.

Amendments 31 and 32 not moved.

Amendment 33

Moved by

33: After Clause 11, insert the following new Clause—

“Chief Environmental Health Officer for England

(1) The Secretary of State shall appoint a Chief Environmental Health Officer for England.

(2) The Chief Environmental Health Officer for England shall give advice to and report to the Chief Medical Officer for England on all such aspects of environmental and public health as are relevant to the public health functions referred to in section 2A of the National Health Service Act 2006 and the duties referred to in section 2B of that Act.

(3) The Secretary of State shall report to Parliament annually on the work of the Chief Environmental Health Officer for England.”

My Lords, Amendment 33 proposes the appointment of a chief environmental health officer for England. Incidentally, there is such a post in Wales. It is intended to balance the clinical role of the director of public health with that of a person of almost equivalent status—although not quite—in terms of the wide range of issues that fall within the province of environmental health officers working in district and unitary authorities. As I indicated in the debate on earlier amendments, a wide range of responsibilities fall within the area of environmental health that transcend ordinary health requirements but, by definition, often impinge on public health. For many years, environmental health officers have played a key role in protecting the public and in advancing areas of public policy across a range of local authority and other functions. Again, I cite housing, environmental issues, transport, air quality, water quality, fuel poverty and the like.

It would generally strengthen the hand of the director of the national Commissioning Board and, more particularly, that of the Chief Medical Officer to have alongside him or her a person of sufficiently high status to address concerns not only within the Department of Health and the various structures that the Bill creates but across a range of other government departments, particularly those that relate to local government. That would involve the Department for Communities and Local Government, the Department for Transport, Defra and, in the context of fuel poverty, the Department of Energy and Climate Change. It would also conceivably involve other government departments and, at a local level, different organisations whose responsibilities bear on a community’s well-being and where policy lead is clearly desirable at a national level.

It used to be the case in many local authorities that a medically qualified officer of health worked alongside a chief public health officer, as I think they were then called. As I mentioned in Committee, it was certainly my experience to sit on a health committee that had two very powerful such officers. They produced very detailed annual reports independently but worked together to highlight issues that needed addressing by local and national government and other agencies. This proposal would substantially contribute to the work of whoever is to be responsible for public health within the department and it would facilitate precisely the kind of overview that the Minister has referred to as part of the outcomes framework for public health at an appropriate level.

I hope that on this occasion the Government might just consider that wisdom is not concentrated on the government Benches and that others may make suggestions that can contribute to our shared goals. I would have thought that this was one of them, which could be met at a small cost but with the potential for a high return in its impact on public health policy and administration. I beg to move.

My Lords, may I ask the mover of the amendment whether infection control will be one of these subjects, as tuberculosis is such a problem for homeless people, and I hear that chicken flu is again occurring in China? Who will be in charge of that?

I would be loath to give a definitive answer, not even having the advantage of officials in the Box to support me on this matter. However, I would have thought that infectious diseases are more appropriately a matter for the director of public health at local level. Presumably, at national level the Chief Medical Officer would have overall responsibility. However, the noble Baroness is right to imply that there is a connection with other functions and services where environmental health could contribute. I suppose that overcrowding would be an example of that. I take it that that is what she is referring to in this context. It is precisely in that sort of area that environmental health officers and others would have a statutory responsibility. There is no direct relationship potentially between, for example, a chief environmental health officer and infectious disease, but it would be sensible to have somebody with responsibility and oversight of environmental health issues of the kind that we are discussing working alongside the Chief Medical Officer. Water quality could in certain circumstances be another example of these issues. That discipline should be at the table, as it were, in a sufficiently authoritative way to contribute to dealing with issues of that kind and, we hope, preventing them.

My Lords, the question asked by my noble friend Lady Masham illustrates why we need to have a chief environmental health officer for England, as well as having that input in Wales, because by and large elements in the wider environment are determinants of health and play a much greater role in that regard than we recognise. Indeed, if the Marmot review and its aspirations are to have any effect on the health of the nation, we need to address environmental health much more closely.

I declare an interest in the specific areas of carbon monoxide poisoning and the problems contributing to that arising from the environment in which people live, and the link between the roads infrastructure and its air pollution and asthma and the underdevelopment of the lungs of children who live near major road junctions. The interplay between health and the environment in which people live is crucial. Health services on their own will not achieve improvements in health, particularly those outlined in the Marmot review. I hope that the Government will not tell us that the amendment is unnecessary, despite the initial typographical error in the reference to an “Evironmental Health Officer” rather than an environmental health officer. I fear that we will hear that the amendment is deemed to be unnecessary and that the relevant advice can be sought elsewhere. However, there is good evidence from other places that strong leadership from somebody who has a particular role in an area can bring about change and build the bridges to which I referred in the previous group of amendments.

I support the amendment. The significance of the chief environmental health officer’s role would stem from his or her being the national head of the profession. The enormous amount of work that local chief environmental health officers do will be familiar to anyone who has been involved in local government. Their work stretches from food standards in local restaurants right through to housing conditions, as the noble Baroness, Lady Finlay, said. It is important that there is a clear mechanism by which the issues that are being highlighted and the points that need to be followed through by government action are fed up to the national level of government. If the Government resist this amendment, I would be interested to hear precisely what mechanisms they see as being available to local environmental health officers and local health and well-being boards to pass through the sorts of issues that can be tackled only at national level.

My Lords, we discussed environmental health in Committee. It is clearly an important area that indeed interlinks with public health, but I hope to reassure noble Lords that we are taking action in this area through non-legislative means. The noble Baroness, Lady Finlay, is absolutely right to say that a narrow definition of public health is inadequate and it seems to me that this is the strength of moving the responsibility for public health to local government.

We need to emphasise the interlinkages in this area and I refer again to the public health outcomes framework. I am looking here at the domain “Improving wider determinants of health”, which includes indicators such as,

“Children in poverty … Pupil absence … First-time entrants to the youth justice system … Killed or seriously injured casualties on England’s road … Domestic abuse … Violent crime … Reoffending … Statutory homelessness … Fuel poverty”,

and many others. The point is that there are wide determinants of public health and it is necessary to link all these areas under the leadership of a director of public health who is drawing them together, rather than identifying an area as being the only one that links in. Directors of public health will need to link up with many other areas, nationally and locally, if that much wider definition of public health is to be accepted and become reality.

It is imperative that we continue to work with all our partners to achieve our ambitions for better public health, better care and better value for all. The Chartered Institute of Environmental Health indeed does an excellent job in presenting the issues nationally and liaising with central government. The environment within which people live, work and play, the housing they live in, the green spaces around them and their opportunities for work and leisure are all crucial to their health and well-being. For example, poor air quality is a significant public health issue and the current burden of particulate air pollution in the UK is estimated, on 2008 figures, to be equivalent to nearly 29,000 deaths at typical ages and an associated loss of 340,000 life-years in the population.

There is no doubt about the significance of that, but I should like to put it in the wider context of all the other areas with which the new director of public health will link up. Every day of the year, local councils have direct contact with many of their residents, and a fully integrated public health function in local government at strategic and delivery levels offers extremely important opportunities to make every contact count for health and well-being. I mentioned the public health outcomes framework and the way that it broadly defines things. It includes four indicators of direct relevance to environmental health professionals, and noble Lords have picked up on a number of those.

At a national level, the Chief Medical Officer will have a central role in providing impartial and objective advice on public health to the Secretary of State and the Government as a whole. We are clear that this role includes advising on environmental health issues. The Chief Medical Officer will, in turn, continue to be able to seek advice on environmental health and other issues whenever necessary, just as she can now. A public health advisory forum will support the Chief Medical Officer in this role. This will bring together expert professionals and leading partners to assist the Chief Medical Officer in providing quality advice and challenge on public health policy and implementation, including areas such as the public health outcomes framework.

The amendment also calls on the Secretary of State to report annually to Parliament on the work of the chief environmental health officer. As discussed in Committee, we agree on the need for transparency and believe that the Secretary of State’s accountability for public health at national level is a major strength of the new system, which is why Clause 52 requires the Secretary of State to publish an annual report on the working of the comprehensive health service as a whole. That will include his and local authorities’ new public health functions.

I understand the arguments that noble Lords are making. We will come on later to issues relating to directors of public health and their leadership role. There clearly needs to be co-operation there, but across other areas too. Noble Lords who have worked in this area for some time have very effectively been arguing the case for this wider definition of public health and what affects it. In the light of that and the reassurances that I have given, I hope that the noble Lord will be willing to withdraw the amendment.

Before the noble Baroness sits down, will she clarify whether she sees the chief public health officer as being essentially the head of profession for environmental health officers around the country?

It was exactly that. I asked specifically for an answer to the question I put earlier. That is entirely consistent with Standing Orders at Report.

Okay. I think the noble Lord has a fairly good idea of what the structure looks like. Therefore, you do not muddle it up with a multitude of different people with different responsibilities at the same level. I think that he can therefore see clearly the answer to his question. Meanwhile—one I prepared earlier—I will also write to the noble Lord in case that is not quite right.

My Lords, I have a vision of meetings in the health world now starting with, instead of prayers, as we have in your Lordships’ House, a brief recitation from the outcomes framework. That seems to be the noble Baroness’s prescription for everything. However, it does not meet the case. We are not seeking to supplant the role of the Chief Medical Officer; we are seeking to augment the resources available to the Chief Medical Officer and the Government as a whole by the appointment of someone senior with the relevant experience across a range of issues mentioned by Members on both sides of the Chamber in this debate which impinge on the health of the nation, communities and individuals.

It is lamentable that the Government fail to take sufficient regard to the potential that this has to reinforce the common agenda. It is not a question of in any way diminishing the role of the Chief Medical Officer. I do not know whether the noble Baroness has considered the situation in Wales; I am sure that the noble Baroness, Lady Finlay, would enlighten her and, perhaps, all of us about how effective that post has been. It looks to me as though another opportunity to work together to promote the common agenda is being ignored.

Therefore, I regret that I will have to beg leave to withdraw the amendment. We will have to return to the point in future. When, in due course, we have the Secretary of State’s review of what is happening in public health, perhaps we can look particularly at the role of environmental health and how it might best be deployed within the department and across government. That may be an opportunity to do something, not necessarily within the statutory framework—I am sure that an appointment can be made outside the statutory framework—but it is an issue to which we shall have to return.

Amendment 33 withdrawn.

Clause 12 : Duties of clinical commissioning groups as to commissioning certain health services

Amendment 34

Moved by

34: Clause 12, page 7, line 17, at end insert—

“( ) After subsection (1E) insert—

“(1F) In exercising its functions under this section and section 3A, a clinical commissioning group must act consistently with—

(a) the discharge by the Secretary of State and the Board of their duty under section 1(1) (duty to promote a comprehensive health service), and(b) the objectives and requirements for the time being specified in the mandate published under section 13A.””

Amendment 34 agreed.

Amendment 35

Moved by

35: Clause 12, page 7, line 22, at end insert—

“( ) In section 272 of that Act (orders, regulations, rules and directions), in subsection (6) before paragraph (za) insert—

“(zza) regulations under section 3(1D),”.”

My Lords, I shall speak also to Amendments 39 and 40, 74, 137 to 140 and 149.

The Government have accepted all the Delegated Powers and Regulatory Reform Committee’s recommendations for amendments to the secondary powers in the Bill. This group of amendments makes most of the changes necessary to fulfil those recommendations. The others will be included in later groups. I beg to move.

My Lords, I shall speak briefly to this group of amendments. We are very pleased that there should now be acceptance of the detailed suggestions of the Delegated Powers and Regulatory Reform Committee. That gives a much stronger underpinning to parliamentary accountability, which we appreciate.

I should like to ask my noble friend a couple of questions. At this hour of the night I may be misinterpreting some of the wording in the amendments but I should like to address two of them in particular. The first is Amendment 35, to which I have added my name. I simply want to ask a little more about the effect of this amendment on inclusivity. As my noble friend will know, there have been many attempts to make inclusivity part of the Bill, and from time to time we on these Benches have expressed concern on the issue. I should be grateful if he could explain the effects of the Secretary of State’s ability to have a commissioning group determine when a patient can be excluded from the overall effect of the directions under Amendment 35. I assume that that would be because they come under the board rather than the CCGs but my noble friend may be able to give me a slightly purer view of the exact meaning.

My second question relates to Amendments 137, 138, 139 and 140. What are the effects of the Secretary of State’s ability, as I understand it, to proceed with orders and regulations without that effectively being the case in the Bill? In other words, could the Secretary of State, in certain circumstances, simply override what is in primary legislation by passing orders and regulations or would he effectively have to fall back on regulations and orders at a later stage?

I apologise for asking these two questions at this late hour but they are asked in all good faith. I think it is important that the public and Parliament understand exactly what is intended by the amendments. Because they are rather complicated, I may have got it wrong but I hope that I have not.

My Lords, on Amendment 35, Section 3 of the National Health Service Act 2006, as amended by the Bill, states that CCGs have responsibility for persons provided with primary medical services by a member of the group and persons usually resident in the group’s area who are not provided with primary medical services by a member of any CCG. Regulations under subsection (1D) enable the Secretary of State to specify that this would not apply for persons of a prescribed description, or in prescribed circumstances—for example, for persons registered with an English GP who were resident in Scotland. As currently drafted, these regulations would be subject to the negative procedure in Parliament. Following the recommendation of the Delegated Powers and Regulatory Reform Committee, the amendment would make these regulations subject to the affirmative procedure.

Amendments 137 to 140 are linked to Amendment 39. They would make clear that the Secretary of State is not able to delegate his function of making orders or regulations specifically relating to the provision of primary medical, dental or ophthalmic services and any functions relating to local or other pharmaceutical services to the NHS Commissioning Board, a CCG, a Special Health Authority or to such other persons or bodies as may be prescribed. The amendments would make it clear that the Secretary of State cannot delegate the function of making orders or regulations to other bodies under Clause 48.

If that short explanation represents an over-abbreviated one, I shall be happy to write to my noble friend after this debate, but I hope that that is helpful.

Amendment 35 agreed.

Amendment 36 not moved.

Clause 13 : Power of clinical commissioning groups as to commissioning certain health services

Amendment 36A not moved.

Clause 14 : Power to require Board to commission certain health services

Amendment 37

Moved by

37: Clause 14, page 8, line 12, at end insert “including for those with profound and multiple learning disabilities and people with complex needs whose behaviour challenges services”

My Lords, I shall speak also to Amendments 55 and 238. My noble friend Lord Rix sincerely regrets that he could not stay this evening as his wife is unwell.

The three amendments tabled by my noble friend to this Bill have been placed together in this one group. I welcome this opportunity to speak to them. Noble Lords will be aware that these issues were raised during the Committee stage of the Bill. My noble friend recently met the Minister to discuss the matters that I am about to raise in relation to people with a learning disability. It is appropriate for me to declare an interest as a psychiatrist specialising in learning disability and also because my son has a learning disability.

To be fair to the Government, it could be argued that the broader issues which these amendments attempt to resolve could have been addressed by the National Health Service many years ago. However, my noble friend and I are using the opportunity presented by this Bill in an attempt to tackle them now. The first amendment, Amendment 37, aims to ensure that health services for those with the most complex needs are commissioned by the NHS Commissioning Board. Concerns were expressed about this issue in Committee. We seek assurances that health services for those with the most complex needs, particularly people with profound and multiple learning disabilities and people with complex needs whose behaviour challenges services, will be commissioned centrally by the NHS board. This amendment would ensure that the NHS Commissioning Board has oversight in this area, including the co-ordination and commissioning of specialist services or facilities for this particular group of disabled people. Any assurances that the Minister may be in a position to provide on this matter would be welcome.

The second amendment tabled in the name of my noble friend, Amendment 55, concerns the importance of collecting data on the experience and outcomes encountered by all patients in the NHS. Where a patient has a disability, it would also ensure a breakdown of disability by impairment type. In Committee, the Minister informed the House that his department is working with the NHS information centre to explore the extent to which indicators in the NHS outcomes framework can be disaggregated to show impairment types, which we would both welcome. However, if the information is not collected at source, clearly there will be limits to which this can be achieved. The Minister also stated that the Government's NHS information strategy aims to cover this issue too, when it is published later this year. Any additional assurances that the Minister is willing to give about what steps the Government will take to ensure that data are collected at source would be welcome.

The third and final amendment, Amendment 238, concerns the provision of independent advocacy services for people who are in the process of making a complaint against the NHS. For those who are unfortunate enough to encounter it, the NHS complaints system is flawed and ineffective. We welcome the Government's proposal for local authorities to make appropriate provision to support people in the complaints process through the use of advocacy services. However, there is a risk that advocacy support could be started and then halted some time before any conclusion to an ongoing complaint has been made. In Committee, the Minister emphasised that local authorities would have the discretion to provide independent advocacy services, consistent with their legal obligations, as they deem appropriate. My noble friend is particularly concerned that such discretion could leave many families without the on-going advocacy support that they need. Is the Minister able to provide my noble friend with any comforting words on that matter? I beg to move.

My Lords, it is important that the Minister can give us some satisfaction in answer to the remarks made by the noble Baroness, Lady Hollins, particularly in view of the tireless pursuit of these issues by the noble Lord, Lord Rix. This small suite of amendments aims to start at the top as it talks about the Secretary of State’s power to require the board to commission services including for those with profound and multiple learning disabilities. It then puts a duty on the board to reduce inequalities, which will involve collecting data on the experiences and outcomes of patients with these disabilities. It also sets out that there should be no upper limit on the length and type of advocacy support that must be provided by local authorities. Therefore, it aims to provide a suite of amendments that address the whole system and the interventions that will be necessary to provide the right framework under the new regime for some of the most vulnerable people in our country.

It was interesting that, on a more general matter concerning children and the Bill, the NHS Confederation deputy policy director, Jo Webber, said recently that the Government's plan to recruit 4,200 extra health visitors by 2015 was leading to a loss of staff in other vital roles in some areas. For example, many established and successful children's health teams are being rearranged or in some cases disbanded simply to employ more health visitors. Ms Webber’s report claimed that the Government should replace the health visitor target with one that focused on the outcomes for children rather than on the numbers of staff in place. That was a very wise remark.

I turn to the children with the most complex difficulties and the question of how under this framework they will receive appropriate assessment and treatment that will address their individual needs. At best, there will be problems with the transition to the new system, and if there are gaps in the service for vulnerable children and learning-disabled patients who perhaps have GPs with limited experience, and doubts about how GP consortia will react to the situation, that is an issue of great concern. Historically, there has been an imbalance whereby people with learning disabilities have lost out when compared with those, for example, with mental health problems—who have also lost out. Therefore, how this group of children and young people are catered for will be a way of testing whether these things will work at all.

My Lords, I am grateful to the noble Baroness, Lady Hollins, for her typically knowledgeable contribution to today's debate. I hope she will accept that the Government are committed to improving the health of people with learning disabilities, to help them both to live longer and to stay healthier for longer. The Bill aims to drive improvements in outcomes by establishing clinically led commissioning, by giving patients a stronger voice and by embedding quality improvement and a reduction in health inequalities at all levels of the system.

We debated these amendments in Committee and I have since exchanged correspondence with, and met, the noble Lord, Lord Rix. I understand and share his concern, and that of the noble Baroness, that there should be robust arrangements for commissioning services for people with profound and multiple learning disabilities, and for people with complex needs or challenging behaviour. I am afraid that it may disappoint the noble Baroness to hear that I still believe that the amendments are unnecessary. However, in saying that, I hope that I can reassure her about the reasons why.

On Amendment 37, the regulation-making powers in new Section 3B are already broad enough for the Secretary of State to require the board to commission these services. The current intention is that the regulations under subsection (1)(d) will be used to give the board responsibility for commissioning specialised services for rare and very rare conditions. The current specialised services national definitions set will form the basis for the services included in these regulations. These will include a number of services for people with profound and multiple learning disabilities, and people with complex needs or challenging behaviour. The services that are not considered specialised will be commissioned by CCGs, although in practice there will need to be close collaboration between the board and CCGs to ensure that patients receive a seamless service.

I do not agree that it would be appropriate to make a particular exception and specify services in the Bill that the board may be required to commission in relation to a particular protected characteristic. Those kinds of detailed requirements are more appropriate in regulations.

I would like to reassure the noble Baroness that we are working with clinicians to define these services through regulations that Parliament will have an opportunity to scrutinise. However, I think we can all agree that the collection and dissemination of more accurate and meaningful information about health services is important to understanding and improving health and care outcomes for the whole population, as well as for specific groups of patients.

I fully support the intentions behind Amendment 55, but I am confident that the work currently being undertaken by the Government and the Health and Social Care Information Centre to explore the extent to which indicators in the NHS outcomes framework can be disaggregated to show disability will meet the noble Baroness’s aims. Our information strategy for health and social care in England will be published in April, and I can tell the noble Baroness that it will clearly state that data sets need to include inequalities data. I would be happy to write to the noble Baroness when the information strategy is published to set out how we see the strategy tackling inequalities.

Allow me to end by addressing the points the noble Baroness has made in relation to NHS complaints advocacy. Clause 184 has the effect of transferring a duty to commission independent advocacy services for NHS complaints from the Secretary of State to local authorities. Under these arrangements, a local authority would decide from whom to commission these services. It could be a local healthwatch organisation or another provider. I am grateful to the noble Lord, Lord Rix, for welcoming these proposals in Committee.

First, let me say that I agree with the noble Baroness’s observation that effective advocacy is particularly relevant to the needs of disabled people, including those with a learning disability. The scope of independent advocacy services is potentially wide, but local authorities should have discretion to determine what arrangements are right as they know their local areas best. We do not believe it would be appropriate to require them to make arrangements for the provision of unlimited assistance. However, we should bear two things in mind: first, that in discharging their obligation, local authorities would have to act reasonably; and, secondly, that Clause 184 would enable the Secretary of State to give directions to a local authority about the exercise of these functions if the Secretary of State felt it necessary to do so.

I hope the noble Baroness, Lady Hollins, will be reassured by this, and that, in the light of the explanations I have given, she will be willing to withdraw her amendment.

My Lords, I am grateful to the Minister for emphasising the Government’s wish to improve outcomes for the group concerned in these amendments. I am pleased that current plans are to define these services through regulations. On behalf of my noble friend Lord Rix, I thank the Minister for their recent meeting at which I understand these issues were discussed in depth. I know my noble friend was very pleased to have that opportunity. I would like to pay tribute to him for his careful and persistent work to improve access to healthcare for people with learning disabilities. I shall look forward to seeing the information strategy in April and seeing just how far the information is going to be able to identify the needs that my noble friend and I are concerned about. I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Amendments 37A and 37B not moved.

Clause 19 : Regulations as to the exercise of functions by the Board or clinical commissioning groups

Amendment 38

Moved by

38: Clause 19, page 13, line 20, leave out “Regulations may” and insert “The Secretary of State must draft regulations not less than annually, and shall submit them to the relevant committee of the House of Commons not less than two months before the regulations are to be laid before Parliament.

(1A) Such regulations shall”

My Lords, I shall speak also to Amendments 41, 46, 48 and 293.

On a number of occasions, the noble Earl has spoken about the mandate to be issued to the national Commissioning Board. In our debates we have given a great deal of focus to the relationship between the Secretary of State and the national Commissioning Board, and the role of the mandate. When the noble Earl has been pressed to say how the Secretary of State would be able to bring influence to bear in relation to particular issues, he has referred on a number of occasions to the role of the mandate and indeed to standing rules. There is no doubt that the mandate assumes considerable importance. My amendments are seeking to give Parliament a stronger role in scrutiny of the mandate.

I have taken as my reference point the procedure for national policy statements in relation to major infrastructure planning applications. The noble Earl will be aware that the Planning Act 2008 introduced a parliamentary procedure to deal with major infrastructure planning applications. Essentially, it goes back to the issues that have bedevilled infrastructure planning decisions in this country, which mean that very often when there are public inquiries into applications, much of the public inquiry debate has been around the principle of whether a particular infrastructure should be developed in the UK rather than actual local planning matters. The classic for me was the Sizewell B application, where I think there were roughly 300 days of public inquiry, of which only about 10 to 20 were concerned with local issues; the rest were concerned with whether nuclear power should be developed in the UK.

The Planning Act brought in a new procedure where it was accepted that issues to do with nuclear power—or High Speed 2, for instance, if it were not going to go through the hybrid legislation process—would be decided by Ministers because those are national decisions, and the local application would then be decided very much around the impact of an actual planning consent.

What is the connection between this and the mandate? It is the parliamentary scrutiny, because a national policy statement has to be debated in your Lordships’ House in Grand Committee, Members of the House having every opportunity to ask questions, and then brought before your Lordships in the Chamber where it is open for debate. My proposition is that the mandate is of such importance that a similar approach could be taken in your Lordships’ House and in the other place, providing a real process of questioning and debate. Although, ultimately, it is, in my view, a ministerial decision, I argue in Amendment 46 that such a process of parliamentary scrutiny and ministerial consideration followed by an affirmative order to approve the mandate would provide a robust approach that would give much more parliamentary comfort to the nature of the mandate between the Secretary of State and the national Commissioning Board.

I do not believe that the current provisions in the Bill allow for that kind of parliamentary scrutiny and I hope that at the very least the noble Earl might be prepared to take this back to see whether there are ways in which we could beef up parliamentary scrutiny of what all of us acknowledge is probably one of the most important processes between the Minister and the national Commissioning Board. I beg to move.

My Lords, I shall address Amendments 38, 43 and 49 in this group but, given the lateness of the hour, I can reassure the House that I shall not be lengthy on any of them. My comments will follow fairly closely some of the matters raised by the noble Lord, Lord Hunt, and will therefore fit in well with our brief debate.

Amendment 38 in essence is the suggestion that the Secretary of State should issue regulations at least once a year. In addition, those regulations should be shown within an adequate timeframe of about two months to the Select Committee, presumably before they pass through the affirmative or negative procedure. This issue is quite close to the amendment addressed at the beginning of our proceedings by the noble Lord, Lord Hennessy. Members in the Chamber will remember that the noble Lord raised the issue within the context of our discussions on constitutional matters when he suggested that any regulations should be subjected to scrutiny by the Select Committee before proceeding to either the affirmative or the negative procedure.

Quite simply, the reason for this, which I think we all recognise, especially those of us who served for some time in another place, is that the negative procedure is extremely weak. Unless one or two Members of Parliament are particularly concerned about a matter, the regulations pass through with not much more than a nod from the House of Commons. In the case even of the affirmative procedure, unless one can organise a substantial group of people who are deeply concerned about the regulation, debates are not profound. Little scrutiny is offered and very often the procedure is little more than routine.

I am not so concerned about the first part of Amendment 38. I do not think that one should necessarily hold the Secretary of State to having to produce regulations annually, but I am very interested in the second part, which refers to passing it to the Select Committee for scrutiny, presumably of its merits, before it passes on to the fixed procedures. There is of course a fairly close parallel with the Select Committee on the Merits of Statutory Instruments as distinct from the older Select Committee on the vires of statutory instruments.

This is an interesting idea. I am one of those convinced that it is important to strengthen parliamentary accountability, not only on health but across the whole front. Therefore, Amendment 38 is well worth consideration. I hope that the Government will consider it carefully because it would be a substantial and interesting step forward. It would enable the regulation to be looked at carefully instead of in effect just being passed on the nod.

Amendment 43 is about the mandate, to which the noble Lord, Lord Hunt, has already referred. We on these Benches see the mandate as a first-class way for the Secretary of State to indicate his most important priorities for the health service for the coming year or so. As such, we put considerable weight on it. The issue that I should like simply to underline is that the role of the mandate is so important that I hope that in it the Secretary of State would be able to address the known priorities of the Bill, including such issues as the narrowing of inequalities and the proper provision of care for the elderly and those who are chronically sick. The mandate could be a very important instrument for setting before the House, and more widely the public, the goals that the Secretary of State hopes the health system would be able to prioritise.

Finally, Amendment 49 is also in the names of the noble Lords, Lord Warner and Lord Patel, both of whom are unable to be here as late as this. They have asked me to apologise on their behalf. The noble Lord, Lord Warner, is particularly interested in this amendment, which sets out in considerable detail the need for audited accounts and for the careful comparison of those accounts for the levels of performance and for comparison with one another. Given his substantial experience in the field of accountability for health issues, this deserves careful consideration. It would at least enable us to be closely concerned with differential performance in the health service and allow people to make a good judgment of the quality of the care being given. I therefore hope that the Government will look sympathetically at Amendment 49.

My Lords, in the absence of my noble friend Lady Cumberlege, I shall speak to Amendment 50. The board has a duty towards improvement in the quality of services, in particular the prevention and treatment of illness, and the protection of and improvements to public health. The board must have regard to documents,

“published by the Secretary of State for the purpose of this section”,

and NICE quality standards as appropriate. So far, so good, but what is completely omitted from this process is input in the form of the voice of the public and of patients—that of HealthWatch England. This organisation is best placed to look at how services improve on the ground. Its role is to gather evidence from patients about services and then to offer advice to the board, so the omission seems quite strange. I wonder if my noble friend could confirm that this is actually an accidental omission. We know that the patient is seen to be paramount throughout the Bill, so it seems odd that the patient is missed out of this element. I would also be grateful if he could confirm that HealthWatch England will be adequately resourced and able to use information and advice from local healthwatch.

Does the noble Baroness agree that another possible source of information would be the health scrutiny committees of local authorities, which could well consider representations from local healthwatch and, in any case, report on how the service is performing in their area?

Certainly local government will play a key role in all this, so the scrutiny committees would seem to be a sensible place to take information from, which would then work in with their local healthwatch.

My Lords, let me begin by setting out what we intend for the standing rules. We intend to use the rules to replicate core elements of the current system that need to be maintained in the future. For example, the standing rules will be used to provide the legal basis for certain patient rights as set out in the NHS constitution. Amendment 38, tabled by the noble Lord, Lord Hunt, will do three things. First, it seeks to require the Secretary of State to make standing rules as opposed to enabling him to do so. Secondly, it would require rather than enable him to update the standing rules no less than once a year; and finally, the Secretary of State would be obliged to share the standing rules with the relevant committee of the House of Commons for consideration at least two months before they are laid in Parliament. I hope that I can help the noble Lord here.

It is already our intention to make standing rules and to review them on an annual basis alongside the mandate. Where it is necessary, the Secretary of State would update the standing rules. Imposing a requirement on him to produce regulations regardless of whether an update is necessary will introduce what I believe is a needless administrative and bureaucratic burden on the system, and we surely do not want that. The amendment would also set out a requirement in legislation for the Health Select Committee to examine the proposed standing rules. I hope that I can reassure him that the committee would have the opportunity to examine proposals, and that Ministers in the department would engage constructively with the committee on any inquiry. However, I do not think that it is usual practice for legislation to set expectations as to the subject that Select Committees should examine or what areas committees should focus on. I should also remind the House that any regulations laid in Parliament are also considered by the Merits Committee of your Lordships’ House, as well as the Joint Committee on Statutory Instruments.

I turn now to the remaining issues. I think that it would be helpful to set out what we aim to achieve with the mandate. The mandate will bring with it an unprecedented degree of transparency, scrutiny and accountability to government policy for the NHS. For the first time, the Government’s core objectives for the NHS commissioning system will be subject to full public consultation.

A number of the amendments in this group, both government and from your Lordships, focus on the parliamentary scrutiny of the mandate. Amendments 41 and 46, tabled by the noble Lord, Lord Hunt, would make the mandate subject to the affirmative resolution procedure and require the Secretary of State to lay the mandate in Parliament in draft. I hope that I can reassure your Lordships that we have already built in sufficient parliamentary scrutiny of the mandate to render the amendments unnecessary.

Following the Delegated Powers and Regulatory Reform Committee’s recommendations, the Government have tabled Amendments 45 and 47, to which I now speak, to allow specific parliamentary scrutiny of the “requirements” within the mandate by providing that they can be brought into effect only by regulations subject to the negative resolution procedure.

However, making the mandate as a whole subject to the affirmative procedure would go too far. Parliament will set the parameters that the NHS will operate within, through this Bill and the legislation that will support it. This is a Bill that takes many powers away from Ministers and gives them back to Parliament, but it should be for the elected Government of the day, not for Parliament, to set specific policy objectives within that legislative framework following full consultation.

Of course, parliamentarians will have an interest in the mandate, and will have the opportunity to debate and influence it in the usual ways. As Clause 1 of the Bill makes clear, following our debate last week, the Secretary of State retains his responsibility to Parliament for the health service; and Parliament has the right to hold him to account for the health service, including the setting of the mandate.

Amendment 43, tabled by my noble friend Lady Williams and three of my other Liberal Democrat noble friends would require the Secretary of State to explain how the mandate supported his cross-cutting duties. I think that part of the motivation for the amendment is a concern to ensure that the mandate is not simply about financial issues. I hope that I can reassure my noble friend Lady Williams in particular on this point. It is our firm belief that the mandate should focus on the strategic outcomes and policies that the Government wish the NHS Commissioning Board to achieve. At the heart of this should be objectives for improvement against the NHS outcomes framework. The mandate will also be an opportunity for the Government to set specific objectives about the policies that we have set out in the NHS White Paper and the government response to the NHS Future Forum; for example, about extending patient choice and enabling clinical commissioning groups to flourish.

While the mandate will set the budget for the board and could include objectives relating to efficiency or financial management, it definitely will not be primarily about financial controls. Of course financial controls are essential, but the Bill has separate provisions for these under Clause 23. The mandate will not be a narrow and technical financial document which requires a separate justification of how the Secretary of State has fulfilled his legal duties; rather, it will visibly embody his duties. So I do not believe that an extra reporting requirement in the Bill is necessary.

Amendment 49 would require the board in consultation with the Secretary of State to set standards for the management of commissioners’ and providers’ accounts to enable efficiency comparisons. This comparison would be published annually by the Secretary of State. I understand the concerns which have led to the tabling of the amendment, but it would be an unnecessary and perhaps bureaucratic imposition on NHS providers and commissioners, distracting them from improving outcomes for their patients and the wider QIPP challenge.

It is important to be able to make comparisons of efficiency, but the board and, in turn, CCGs should be given the autonomy to decide whether and how to do this. I happen to know that work is currently proceeding in this area.

Monitor’s role currently includes the oversight of the financial management of foundation trusts, and the Trust Development Authority will do the same for non-FTs, so this information is already available for providers.

My noble friend Lady Jolly referred to HealthWatch England. It is specified in subsection (8) of new Section 13A as someone the Secretary of State must consult in developing the mandate. HealthWatch England will be able to feed in the views of local healthwatch as well.

Amendments 48 and 293, tabled by the noble Lord, Lord Hunt, would require parallel mandates to be set for Monitor and the Care Quality Commission. Again, I hope that I can persuade him that that is not necessary.

Monitor and CQC are independent regulators, with clearly defined statutory functions. Their core role is unchanging and regulatory, rather than about achieving a series of evolving policy objectives. Therefore, there is far less reason for the Government to set them a specific mandate. The fact that there is a statutory mandate in the Bill for the Commissioning Board reflects the different nature of the board’s role.

As with any arm’s-length body, there is a framework agreement between it and the sponsor department, which is used as the basis for monitoring the body’s ongoing performance. That is the approach that the department uses and will be using for all of its arm’s-length bodies, including CQC and Monitor. That will be underpinned by formal reviews of each organisation’s capability, at least every three years.

The department will retain overall stewardship, system leadership and accountability for ensuring that the different national bodies are working as Parliament intended. As I have mentioned on previous occasions, the Secretary of State will have formal powers to intervene in the event of significant failure. I hope that that reassures the noble Lord, and that he will feel able to withdraw his amendment.

My Lords, I thank the noble Earl for a comprehensive response to the interesting amendments that have taken us to the duly appointed hour. He has given quite some assurance about the fact that parliamentary Select Committees will have an opportunity to scrutinise both the mandate and the standing rules, and that is to be welcomed. I urge him even now to reflect on whether the parliamentary scrutiny might not be beefed up somewhat by some reference in the Bill alongside some of these amendments.

The noble Earl has said that the process will be transparent. That is to be welcomed. But in the end, if Ministers are determined to hand off power to the national Commissioning Board, it seems only sensible and right that the mandate in the standing rules under which that should be done should be subject to decent parliamentary scrutiny. I very much hope that the Government will give that further consideration.

This has been a good debate to round off tonight. I am most grateful and beg leave to withdraw the amendment.

Amendment 38 withdrawn.

Consideration on Report adjourned.

House adjourned at 10.44 pm.