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Lords Chamber

Volume 817: debated on Tuesday 18 January 2022

House of Lords

Tuesday 18 January 2022

Prayers—read by the Lord Bishop of Birmingham.

Health and Care Bill

Committee (3rd Day)

Relevant documents: 15th and 16th Reports from the Delegated Powers Committee, 9th Report from the Constitution Committee

Clause 10: Funding for service integration

Amendment 20

Moved by

20: Clause 10, page 6, line 19, at end insert “including how it must be used to support service integration for children”

Member’s explanatory statement

This amendment would clarify and prioritise how use of sums paid to NHS England under section 223B of the National Health Service Act 2006, better known as the Better Care Fund, can be used towards service integration for children.

My Lords, I will also speak to Amendment 177. Amendment 20 requires the Secretary of State to ensure that the better care fund, an important and successful initiative, is used to support service integration for children as well as adults. As the Bill stands, the better care fund will continue to be focused exclusively on adults. This is one of a number of amendments that we will debate over the coming weeks which together ensure the children are given equal treatment with adults in the Bill. I assume at the outset that the Minister agrees in principle with us that children and adults should be treated equally in the Bill. Can he give the House an assurance that this is the case—I cannot believe it is not—and if it is not, can he give us the reasons why?

We understand that the fund has focused on adults until now but surely it is time to extend it to children’s services. When the better care fund is all about integration of health and social care, it is hard to understand why children’s services should be excluded. Integrated multiagency support for children and families is key to delivering on the Government’s policy agenda, including for disabled children, those with special educational needs, children supported by the social care system and children during the first 1,000 days of life. Extending the scope of the better care fund to children would greatly accelerate this process of integration and support the Government’s ambitions for children.

I recognise that the funding streams and systems involved in services for children are complicated and it would involve work to extend the better care fund to incorporate those systems. However, this complexity is precisely why good and integrated services for children are so hard to achieve and why the better care fund could be so beneficial.

To illustrate the point, I will quote from a letter I received last week from Julian Wooster, the Somerset director of children’s services. He welcomes this amendment and explains that

“unfortunately we currently have a perfect storm of issues nationally in relation to placements of teenagers with complex needs, which is having a detrimental impact on their well-being.”

Apparently, the Association of Directors of Children’s Services has made a number of submissions, including the following commentary to the review of children’s social care which is under way:

“Despite long standing and ongoing discussions about the needs of children across the children’s social care, mental health and youth custody secure estate, the three systems continue to be separately commissioned, operate under separate legislative frameworks and are the responsibility of different government departments, each with different priorities. This can present practical barriers to local innovations and change. Locally in Somerset the council and NHS colleagues have worked well together on a joint initiative, which is receiving national interest. If the country is to benefit, Wooster claims, there needs to be a joint framework which the better care fund could provide.”

I am aware that officials from the department have been having positive conversations with colleagues from the Children and Young People’s Health Policy Influencing Group and the National Children’s Bureau, and I hope these will continue. But what I hope today is that the Minister will clarify to the House is that he has no objections to the principle of extending the remit of the better care fund to children, and that he is happy to explore how that might be achieved.

I turn briefly to Amendment 177, which seeks to ensure that the needs of those aged nought to 25 are adequately met under the integrated care systems. The amendment would require the Secretary of State to publish guidance on how ICSs should meet their obligations and with which ICS bodies would be required—that is a very important word—to comply. I do not think that I really need to persuade the Government that meeting the health needs of children from birth to adulthood is perhaps the most important investment in the health of the nation. Obviously, good health in childhood is likely to lead to good health in adulthood, to the benefit of every single one of us and to our NHS and taxpayers. We know that integrated care systems will have to cater for all ages in the context of the historically large backlog of appointments and treatments. It will be all too easy for particular groups to be left behind, unless there are specific provisions in the legislation to make sure that they are not.

As this Bill passed through the House of Commons, I was really pleased to hear that the Minister for Health had recognised the importance of meeting the needs of babies, children and young people. In particular, I warmly welcomed his commitment in Committee to ask his officials to develop bespoke guidance spelling out how ICSs should meet their needs. I understand that officials from the Department of Health and Social Care are currently engaged in discussion with the Children and Young People’s Health Policy Influencing Group on the development of that guidance, which is really encouraging.

I hope the Minister understands the reason for this amendment. Given that the Minister in the other place has shown his commitment to the principle of issuing guidance, our purpose here is to ensure that the guidance is published and will have statutory force to ensure compliance with it. I shall not go into the details of the amendment, but those are its objectives. I hope the Minister will be able to agree to this amendment, as it does nothing more than ensure that his colleague’s commitment in the other place is honoured by the new system. I beg to move.

My Lords, I have my name to Amendment 98. I am very pleased to support the noble Baroness, Lady Tyler of Enfield, in this amendment, so that the safeguarding of children has an important place in this Bill.

Vulnerable children’s needs must be highlighted. It is not long ago that six year-old Arthur and the little girl called Star were cruelly murdered, and the chances of saving them were missed. Over the years, there have been many other shocking cases where children were tortured and killed. It is vital that all the safeguarding people involved in the many tragic cases of vulnerable children work together. It should not be left to one junior social worker, who may be frightened of facing difficult, devious and cunning parents. I hope that the Government agree on the need to upgrade safeguarding children’s needs and will help to see that it is in the Bill. The needs of children should not be passed over and neglected.

I also support many other amendments in this group.

I rise to speak to Amendments 51, 98, 141, 151 and 162 in my name and, briefly, the other amendment to which my name is attached. I shall make one opening remark. This group is all about children and young people. I know that all noble Lords feel very strongly about this issue. Children and young people make up 30% of the population but are not mentioned anywhere in the Bill.

Amendment 51 would require integrated care boards to share relevant information and data with key partners in the children’s system and to collect multiagency data from those partners. As the Bill stands, there are a number of crucial areas in which adults are, rightly, set to benefit from improvements to integrated working in ways that children are not. One of the most concerning ways in which it feels to me as though children have been an afterthought in the Bill is in the sharing of data and information.

Barriers to sharing information have been identified over many years as a key barrier to better joint working, commissioning and delivery of services but, due to the invisibility of children in existing data-sharing legislation, the children’s system faces even greater barriers to sharing information than that for adults. However, the measures to improve the sharing of information and data in Part 2 apply only to the adult system. Frankly, I find that inexplicable.

Alongside the noble Lords, Lord Bichard and Lord Hunt, to whom I am very grateful for adding their names to my Amendment 51, I heard numerous accounts of the huge challenges that the NHS and local authorities face in collecting, sharing and interpreting data as part of the recent Public Services Select Committee inquiry into child vulnerability. We heard this time and again. I quote just one sentence from the report:

“poor data-sharing between Government departments and local agencies endangered vulnerable children and their families by undermining safeguarding arrangements and preventing referrals for early help.”

As we heard from the noble Baroness, Lady Masham, following the heartbreaking murders of Arthur Labinjo-Hughes, Star Hobson and other vulnerable children in this country, it is essential that arrangements for data sharing between the health system and local authorities for babies, children and young people are urgently improved. As I have said, Part 2 focuses on data sharing between health and adult social care but does not extend this to the children’s system. It is not just that children are not specifically included in the wording of the Bill; they have been explicitly excluded.

As the noble Baroness, Lady Meacher, said, colleagues in the sector, including the National Children’s Bureau—to which I am very grateful for its help and support on these amendments—have engaged in discussion with officials on this issue. I was pleased to hear that this engagement is going well and is set to continue, but I hope to secure today the Minister’s agreement to look again at this issue, which is in the best interests of vulnerable children in this country.

Amendment 98 would add the discharge of duty as a safeguarding partner to the general duties of ICBs in Clause 20. It would require new regulations that specify how ICBs should perform the statutory child safeguarding duty when it is transferred to them from CCGs, which are obviously abolished as a result of the Bill. Although the statutory guidance Working Together to Safeguard Children already sets out the responsibilities of a safeguarding partner, the recent tragic events that I have just referred to show that a more robust legislative approach is needed to ensure that children are properly protected by a really effective multiagency safeguarding system.

It was heartbreaking, and I know that all noble Lords in the Chamber were shocked when they heard the details of the tragic death of Arthur Labinjo-Hughes, a six year-old boy who suffered prolonged abuse and was murdered by the very people who were supposed to keep him safe. I recently met the NSPCC, which highlighted government data showing 536 incidents involving the death or serious harm of a child due to abuse or neglect in 2020-21.

Sadly, young Arthur’s case is only one of far too many, but health practitioners such as GPs, nurses, midwives and health visitors are in a prime position to recognise and report safeguarding concerns; during medical examinations they might identify signs of physical or sexual abuse. Missed medical appointments can also indicate neglect. As the strategic safeguarding leader, the ICB will be responsible for ensuring that health practitioners are fully supported to work with other agencies on safeguarding and promoting the welfare of children. Alan Wood’s review from 2021, which has been discussed in the Chamber on a number of occasions, makes clear recommendations on strengthening the existing safeguarding arrangements, which came into effect in 2019, including by ensuring effective leadership, data sharing and scrutiny. The Bill offers a golden opportunity to act on these amendments to bolster local health partners’ role as a lead safeguarding partner and to embed effective joint practices that really do keep children safe.

Amendment 141 would require NHS England to assess how well an integrated care board has met the needs of children and young people in its area. In order to make a judgment about this, the amendment would require NHS England to publish an accountability framework for setting out national priorities for children and young people. Among other things, ICBs will have a crucial role in commissioning primary and community healthcare services directly for children and young people. They will play a key role in jointly commissioning services for disabled children and those with special educational needs, and in contributing to education, health and care plans, and they will be crucial in commissioning the joined-up services in the first 1,000 days of life, which the Government, to their credit, are investing in.

However, as we all know, there is unwarranted variation, with the support that children and young people receive in the health service often based on where they live rather than on their level of need. This amendment would create much needed accountability for integrated care boards and provide an overarching framework for children’s health that ICBs can work within, importantly without being prescriptive in any way about how local systems fulfil their duties.

Turning to Amendment 151, Clause 21 requires every integrated care partnership to develop an integrated care strategy. The amendment would require ICPs to consider specifically the needs of babies, children and young people when developing this strategy. I think the Minister knows my concern and that of other noble Lords—the noble Baroness, Lady Meacher, referred to it—that if we do not refer explicitly to children in the Bill, they will not be given priority equal to the adult population’s when it comes to implementation. Sadly, experience shows that when legislation does not explicitly require health systems to consider children, they are often overlooked in subsequent implementation.

Children and young people have distinct development needs. They use a distinct health and care system staffed by a distinct workforce with its own training, and they are covered by distinct legislation. Simply hoping that integrated care systems will take full account of that of their own accord will just not cut it. A more robust legislative approach is needed. Like the noble Baroness, Lady Meacher, I was also pleased to hear that the Minister in the other place recognised the importance of focusing on children and families in the new ICS structures and made a commitment that the Government would develop bespoke guidance for integrated care systems on meeting the needs of babies, children and young people. That is why I support Amendment 177 in the name of the noble Baroness, Lady Meacher, and to which my name is attached, to put this guidance on a statutory footing.

Amendment 162, on Clause 26, would require the Care Quality Commission to work jointly with Ofsted to plan and conduct reviews into the provision of health and children’s social care in integrated care board areas.

Again, I refer back to my experience as a member of the Lords Public Services Select Committee. I can confirm, as the noble Lord, Lord Hunt, will be able to, that the committee investigated the role played by the relevant regulators and inspectorates. Indeed, we took evidence from the senior leaders of the relevant inspectorates and regulators, specifically Ofsted and the CQC. Our conclusion was that, despite the very best intentions, these inspectorates do not work together closely enough or have a truly integrated approach. It is telling that our report revealed that the CQC itself called on the Bill

“to give it the ‘ability to look at [the] care of children across all settings’ as part of its regulation of Integrated Care Systems”.

I believe that the Bill should give the Care Quality Commission and Ofsted powers jointly to hold integrated care systems, service providers and local decision-makers accountable for the long-term outcomes for children’s health, including health inequalities.

I very much support Amendment 177 in the name of the noble Baroness, Lady Meacher. It has been explained and it very much goes with the grain of my other amendments.

I also strongly support Amendment 142 in the name of my noble friend Lady Walmsley, which would provide an opportunity for the Government to ensure that children and young people are prioritised on ICBs while maintaining local flexibility, which is important. An impact assessment would allow for good practice to be shared quickly and for both Houses to exercise effective scrutiny over the implementation of this legislation.

On Amendment 87 in the name of the noble Baroness, Lady Finlay, the idea of the appointment of a strategic clinical lead for children and young people’s health is an excellent proposal, but I will leave the noble Baroness to express that.

In conclusion, the Government have a very important agenda for children. There are a lot of things that they are trying to do. I strongly support most of them but I really feel that we must have an effective legislative framework to allow that agenda to be taken forward successfully.

My Lords, this group of amendments is particularly important because it concerns the next generation, addressing children and young people’s health and social care needs. As has been said, I have tabled Amendment 87. I have also put my name to Amendments 141, 151 and 162, introduced so comprehensively by the noble Baroness, Lady Tyler. I also support the other amendments in this group.

These amendments address how the needs of children and young people aged nought to 25 will be met by the relevant healthcare and social care provision within the area of each integrated care board. A bonus from recognising this in the Bill would be the encompassing of young people with learning difficulties and autism, whom we discussed last week.

I was struck by a figure raised during the debate in the other place. According to Young Minds, 77%—more than three-quarters—of sustainability and transformation partnerships failed to consider children’s needs sufficiently. Only one of the 42 ICSs in existence listed a strategic lead for children and young people. Given the range of agencies and pathways, someone must have responsibility for the integration of services at the local level and for listening to the needs of young people.

More than 12.6 million children aged 18 and under live in England, yet the Bill reads as if it is written by adults for adults. Let us not forget that an estimated 800,000 children in England are child carers and more than 250,000 of them are likely to be providing high levels of care for their relative.

Alarmingly, the UK is fifth from bottom among 27 European countries for infant mortality, and one in six children has a diagnosable mental health condition. The number of children in looked-after care is rising and we have heard terrible stories of children whose lives have been lost through abuse and illness.

Child health outcomes in England are worse for children in deprived areas and the inequalities are widening. We have the highest child mortality rate in Europe for children with asthma. Children of school age from the most deprived areas are two and a half times more likely to have an emergency admission for asthma, representing an excess cost to the NHS alone of £8.5 million a year, quite apart from the devastating and frightening nature of asthma. Let us not forget that children die of asthma.

The population of nought to 25 year-olds also have distinct development needs, requiring a specialised workforce to meet those needs and prepare them for adulthood. If they have learning difficulties at any level, the parents also need to be prepared for the legal cliff edge at the age of 18. From one day to the next, the parents can no longer determine decisions on behalf of their child but need a lasting power of attorney or deputyship in place. All this underlines why the voice of children and young people must be heard at board level.

In Committee in the other place, the Government committed to developing “bespoke guidance” for integrated care systems on meeting the needs of babies, children and young people. This is most welcome, but somebody needs to have responsibility for making sure that guidance is acted on and the gap is closed rather than allowed to widen.

Amendment 98 would stipulate such a duty as a safeguarding partner. The NSPCC and the Royal College of Paediatrics and Child Health, to which I am most grateful for meetings and briefings, have highlighted that last year alone there were over 500 incidents involving the death or serious harm of a child through abuse or neglect—an increase of 188 child deaths on the previous year.

The Bill provides an important opportunity to strengthen and support health as a lead safeguarding partner, embedding effective joint working practices within multiagency safeguarding partnerships. But clinical commissioning groups and ICBs are not equivalent bodies. ICBs’ larger geographic area means that they must ensure that all healthcare professionals are actively engaged. The clear recommendations in Sir Alan Wood’s paper need to be acted on. An ICB lead is essential to make sure that there is an accountable officer, that data and information-sharing happens, with scrutiny of the mechanisms so that a national benchmark can ensure that good practice is disseminated. Amendment 162 aims to ensure a joint framework to hold agencies to account for how effectively they collaborate, to improve long-term outcomes for children. The Bill should give the CQC and Ofsted joint powers to hold integrated systems.

Multiagency arrangements need examining to ensure that the funding is shared equitably and proportionately. Without the lead person, I fear that children and young people will yet again be viewed as an afterthought and ongoing deaths as a tragedy to be looked into, perhaps with lessons learned, but not as the avoidable deaths that they are.

My Lords, on behalf of my right reverend friend the Bishop of London, who cannot be in her place today, I speak in support of Amendment 141, to which she has put her name, alongside all the amendments, which I too support, having listened to the discussion and read them carefully. They all aim to strengthen the services for children and young people. The Government should be congratulated on continuing in the NHS a long period—perhaps 20 to 30 years—of raising the profile of children and young people. The work of the clinical director should be noted, and the involvement of young people in the design of services, although we have already heard this morning that this could be increased.

The pandemic has shown that there are still gaps through which children and young people fall. My right reverend friend the Bishop of London, and myself in Birmingham, are in regular contact with head teachers of Church schools and know about the increase in children’s mental ill health, continued inequalities, and the uneven provision of services across the country.

In the second day of Committee, the noble Baroness, Lady Harding, emphasised the need for focus in the NHS. Other noble Lords here have spoken of the need for levers in the Bill to ensure accountability. I think that this is what Amendment 141 attempts to do—to provide such a regular assessment and framework to ensure that the needs of children and young people are always included and that there is a general and regular accountability. I trust that the Minister will consider the amendment carefully, along with the others—but particularly this one—and accept it.

My Lords, it is a great pleasure to follow the right reverend Prelate the Bishop of Birmingham. I apologise to the Committee for not being able to be here at the start of the debate on this group, owing to a medical appointment.

I shall address my remarks to Amendments 141, 151 and 177. I do so because, like other noble Lords who have put their names to these amendments, and as I made clear at Second Reading, I believe that supporting speech, language and communication development and better outcomes for children and young people with speech, language and communication needs, which I shall refer to as communication needs for the remainder of my contribution, is incredibly important and a cost-effective investment.

I should at this point declare my interest as a proud vice-president of the Royal College of Speech and Language Therapists. I should also say that I have incorporated within my remarks those that would have been made by the right reverend Prelate the Bishop of Gloucester, who has a passionate interest in adequate support for people with communication needs as a former speech and language therapist.

My first point is that these amendments do not come with a significant price tag attached. Indeed, the price tag of not implementing what they propose would be considerably greater. These amendments would actually facilitate cost-efficiency because of the significant benefits over the medium to longer term of getting the system right at the outset—in other words, by ensuring that the system works to maximum effect when it matters most, as early as possible in children and young people’s lives.

We know that the impact of not supporting children and young people with communication needs in particular can be significant. For example, children and young people with long-term communication needs—10% of all children and young people—are at greater risk of worse educational attainment, mental health problems, unemployment and potential involvement in the criminal justice system if their needs are not identified and adequately supported. It seems common sense to require NHS England, as Amendment 141 proposes, to assess how well an integrated care board has identified and met children and young people’s needs in relation to the national accountability framework, which, of course, it has responsibility for publishing. It would help ensure transparent value for money—in other words, optimal bangs for bucks for the taxpayer. I have to ask: what’s not to like?

This amendment gives us the opportunity to ensure that children and young people are prioritised by decision-makers in the health system. Sadly, children and young people with communication needs are often even less of a priority. Indeed, this has been demonstrated by decisions taken during the pandemic, when speech and language therapy services to children were stopped and speech and language therapists were redeployed in many areas. As a result, according to a survey conducted by the Royal College of Speech and Language Therapists, 62% of children and young people received no speech and language therapy during the first lockdown. That is almost two-thirds whose life chances will have been adversely affected, and that will definitely come with a price tag attached over time.

It is therefore vital that integrated care boards are held to account to ensure that they give children and young people the priority they deserve, with a clear set of outcome metrics, including outcomes for children with communication needs. In fact, this would be in line with the Government’s very welcome acknowledgement—in a response to a Written Question tabled by the noble Lord, Lord Ramsbotham, in July 2019—that speech, language and communication skills are a primary indicator of a child’s well-being.

Surely it makes complete sense that this accountability should be grounded in a national accountability framework so that we actually see equitable support across England and thereby reduce the risk of babies, children and young people and their families facing a postcode lottery of access to services. I assume that all noble Lords would agree that the service they receive should be based on need rather than where they live. I would be very grateful if the Minister could tell me whether the national accountability framework will include metrics on outcomes for children and young people with communication needs.

Amendments 151 and 177 are in a similar vein and would, I believe, also bring considerable cost benefits. Amendment 151 would require an integrated care partnership to specifically consider the needs of babies, children and young people when developing its strategy. As with Amendment 141, to ensure that the Government’s very welcome ambitions for babies, children and young people, including those with communication needs, are achieved, it is essential that an integrated care partnership’s strategy specifically considers the needs of babies, children and young people so that they can achieve the best possible outcomes, not least in terms of life chances. This would help to develop a holistic, local approach to supporting babies, children and young people and their families, including, of course, those with communication needs.

It is also crucial that the strategy includes plans to support speech, language and communication development at the population level. This would help not only to deliver better health outcomes for children but to tackle health inequalities, an issue that I appreciate noble Lords have already addressed in considerable detail in Committee.

Finally, on Amendment 177, this proposed new clause would require the Secretary of State to lay regulations and publish guidance on how integrated care systems should meet the needs of babies, children and young people. This would also require integrated care systems to act in accordance with guidance. The key point here is that bespoke guidance for integrated care systems on meeting the needs of babies, children and young people must be on a statutory footing if we are to ensure that the strongest possible support is provided, including for those with communication needs and their families. I suggest that only then can we be confident that meeting their needs will not be considered optional and that a potential postcode lottery in access to services and support can be pre-empted and prevented.

Going back to that figure of 10% of all children and young people having long-term communication needs, surely it is important that the guidance includes specific reference to such needs. Given the links between early speech, language and communication skills and health inequalities, it is essential that this guidance also includes details on how communication skills will be developed at a population level.

Surely it is in everyone’s interests that integrated care systems give due regard to meeting the needs of babies, children and young people, including those with communication needs. These amendments would ensure that that happens and that the significant cost benefits are not only factored in from the outset but realised in the medium to longer term.

My Lords, I declare an interest as a patron of the British Stammering Association; indeed, I am a stammerer myself. I regret that I could not join in at Second Reading. I support all the amendments in this group, as does the Royal College of Speech and Language Therapists.

I want briefly to add my support for Amendments 141, 151 and 177. As the noble Lord, Lord Shinkwin, said, Amendment 141 would improve the lot of some 10% of children in the United Kingdom. That is a large proportion. Those are the ones who have identified speech, language and communication needs, which, as has already been said, affect their life chances in many ways. The way to do this, as the right reverend Prelate said, is to have the vital structure of accountability for their needs being identified and met.

There is a big equality issue here. I remind noble Lords that up to 50% of children in areas of social disadvantage start school with delayed language or another identified communication need. The 2010 Marmot review on health inequalities emphasised that

“giving every child the best start in life … is our highest priority recommendation.”

The review identified reducing inequalities in the early development of physical and emotional health and cognitive, linguistic and social skills as a priority objective, noting communication skills as crucial for “school readiness”. Levelling up is for children too; arguably, it is particularly important for them. The national accountability framework in Amendment 141 must include metrics on speech, language and communication development at the population level and outcomes for children and young people with communication needs.

On Amendment 151, I can do no other than echo the words of the noble Lord, Lord Shinkwin, with whom I agree entirely.

I strongly endorse Amendment 177, which would put the guidance on a statutory footing. One advantage of this, which should be done for all sorts of reasons, is that it would enable the postcode lottery to disappear or at least be very much reduced. Of course, it ought to include specific guidance on supporting speech, language and communication development at the population level, explaining how the needs of children and young people with communication needs will be met. I hope that the Government will pay attention to this often rather neglected aspect.

My Lords, I support Amendment 20 in the name of the noble Baroness, Lady Meacher, and in so doing declare my interest, as laid out in the register, as a vice-president of the Local Government Association and a non-executive director of Chesterfield Royal Hospital NHS Foundation Trust.

NHS England defines the better care fund as being there to support

“local systems to successfully deliver the integration of health and social care in a way that supports person-centred care, sustainability and better outcomes for people and carers.”

So why is that not the case for 30% of the population, children and young people, who have the same complex needs and the same need for integration as adults do to help and support them on their journeys? The better care fund has been around since 2014. My guess is that this was an oversight rather than a deliberate means to keep children and young people out. Having looked at examples of what the better care fund can achieve in integration and outcomes for adults, I believe that this oversight needs to be addressed. Children and young people need to be on the face of the Bill.

I think that the Government accept that things need to happen, because we have the children’s social care innovation programme, which is particularly about looking at innovation in social care along with healthcare partners. The problem, however, is that it is a bidding system and it is not for all local authorities. If you win the bid, you can do it. Children and young people across the country deserve and should expect the right to have innovation in integration to improve their outcomes regardless of where they live. It should not be conditional on their local authority being successful in a bid.

I can see no reason why, as the noble Baroness, Lady Meacher, said, the Government would not want to do this. It is an oversight in the better care fund. Putting children and young people on the face of the Bill would ensure that they received the integration and better outcomes that adults achieve through the fund.

My Lords, I offer the support of the Green group for all the amendments in this group. My name is attached to Amendments 51 and 87 and it would have been attached to others had there been space. I can only commend the noble Baronesses, Lady Meacher, Lady Tyler of Enfield and Lady Finlay of Llandaff, for identifying a serious lacuna in the Bill and for providing practical, careful and sensible solutions to that.

The noble Baroness, Lady Finlay, said that the Bill was “by adults for adults”. The other amendments in the group address only half that phrase. It addresses the “for adults” part but not the “by adults” part, which is what my Amendment 103A aims to address. Young people are experts in being young people. We may think about the life experiences of a 12 year-old or an 18 year-old, but none of us really knows what it is like to be 12 or 18 at this moment. A phrase often used particularly by marginalised groups is “Nothing about us without us”—given the hour, I will spare noble Lords the Latin version.

Young people are undoubtedly a marginalised group in our society in that their voice is far too rarely heard. As I have reflected previously, they are hugely underrepresented in this place and in the other place. The under-18s do not have the vote. The under-25s in the voting population, for structural reasons that could be fixed but have not been, do not have the same kind of voice.

I entirely accept that, among paediatricians and social workers, there are many older people who have much expert knowledge, but it is crucial that we actually hear. My amendment seeks to address ICBs and sets out that, in statute, there should be an advisory board consisting of young people on every ICB. I believe that this is an important addition to ensure that young people’s voices are heard. It might be said that many ICBs may set up such a structure, but that is not the same as it being statutory, ensured in the Bill with a message from Parliament saying, “You have to listen to these young people’s voices”.

I doubt that I need to address this in detail, particularly with the occupancy of the Chamber for this group, but I want to mention the Children’s Society’s Good Childhood Report 2021, which looked at 10 to 17 year-olds. Among them, one in 15 were unhappy with their lives—the highest level in a decade. We know that children who are unhappy at the age of 14 are significantly more likely to display symptoms of mental ill health, to self-harm or, sadly, to attempt to take their own life by the time they are 17.

As the report makes clear, the pandemic is only part of this story. There is a climate emergency and a pervasive fear about the future that young people have lived their entire lives through. We are talking about people whose whole life experience, virtually, has been since the financial crash. One thing that we know addresses a sense of powerlessness, with all its negative effects on mental and physical health, is giving people a sense of empowerment—that is, a sense that they can take control of their lives, make choices and make a difference. I often see this with young climate strikers.

I believe that the measure proposed by my Amendment 103A would ensure that this group of amendments collectively addresses the two sides of the problem that the noble Baroness, Lady Finlay, identified. I want to take this forward and I invite noble Lords who are interested to talk to me about it. This should be included in the Bill. Let us hear from children and young people and make sure that ICBs listen to the children and young people they serve.

My Lords, I very much agree with the noble Baroness and I support the broad thrust of these amendments. As this is my first intervention on the Bill, I should declare my interests as a board member of the GMC and the president of GS1 UK, the British Fluoridation Society and the Hospital Caterers Association. I am also a trustee of the Foundation for Liver Research.

I support Amendment 51 in the name of the noble Baroness, Lady Tyler. As she said, she, the noble Lord, Lord Bichard, who also put his name to the amendment, and I are members of the Lords Public Services Select Committee, which has just produced a report on vulnerable children. When taking evidence and listening to the arguments, it was sobering to hear that it is now estimated that the number of vulnerable children has accelerated, particularly during Covid, so that more than 1 million children are growing up with reduced life chances. Too many of them end up in our criminal justice system but, despite this, there is no government strategy to deal with vulnerable children.

The result is a lack of co-ordination both nationally and locally. Too many children fall through the gaps. Public services intervene far too late to prevent some of these children from getting into difficult circumstances. Although the amendment deals with only one aspect, it is but one aspect of a more general problem that we believe the Government need to address. The particular problem that we wish the Committee to take account of is the silo working that continues to be evident both nationally and locally, as well as the frustrating unwillingness of public bodies to share data even though it is abundantly clear from both the law and the Information Commissioner’s comments that they are perfectly able to do so.

I do not pretend that passing an amendment to the Bill will change everything overnight, but we look to the Government to be firm in their intent. It is unacceptable for public bodies, many of which have a direct relationship with government, to refuse to share information for all the miserable reasons of tribalism and managers not being willing to let go. We need to do something here.

My Lords, I am pleased to speak immediately after the noble Lord, Lord Hunt. I am sure that he has, like me, a feeling of déjà vu. We were here not so long ago talking about the Domestic Abuse Bill, when I and many Members here today urged the Government to put children in the Bill. I am pleased that the Government listened, although it took some time and a lot of effort—that is why I am pleased to support the noble Baroness, Lady Meacher, on Amendment 20. It seems clear to me that children should be front and centre in this Bill, as we made them in the Domestic Abuse Bill.

We have worked closely with Barnardo’s, which has advised many of us, and I know that it raises three issues here: to protect the needs of young carers; to mandate that the child impact assessment is undertaken by the Government within two years of the Bill’s implementation to assess its impact on children; and to clarify and prioritise the better care fund so that it can be used to achieve service integration for children. I do not want to take time—I just think that my noble friend the Minister may want to look at Hansard and our debates on the Domestic Abuse Bill. I am sure that he will find a way to put children front and centre in this Bill.

My Lords, this morning the Committee has heard from the noble Baronesses who have spoken to amendments many good reasons why it would be helpful to the Government’s agenda to improve services for children, if children were referred to explicitly in several places in the Bill. I hope that the Minister will be able to consider this matter and see whether there is anything that he can do about it.

I have Amendment 142 in this group. New Section 14Z57 in Clause 20 is about performance assessment of the integrated care boards; it contains several important measures, but one is one missing. This amendment would mandate that, two years after the Bill is implemented, a child impact assessment should be undertaken by the ICS annually to assess its impact on children. This would provide the information to enable NHS England to do the assessment which Amendment 141 requires it to do. I very much support all the amendments, particularly those that would gather information, publish it and enable its sharing, because that will help. We know that early intervention works, but we do not know where to intervene unless we know what is going on, and that is why these things are very important.

There is no duty in England for government to assess and publish the effects of legislation on children—neither is there a duty in this Bill on the ICS. It was in about 2010, I recall, that the then Government committed to regularly assess the effect on children of relevant legislation, although it is not mandatory to do so and it is often not done, despite the fact that Nadhim Zahawi, now Education Secretary, when he was Children’s Minister in the Department for Education said:

“The use of children’s rights impact assessments is widely promoted across the Department and wider Government”.—[Official Report, Commons, 24/6/19; col. 447.]

Well, I hope so.

Scotland and Wales have taken a slightly different approach; they have systems to assess the effect of devolved legislation on children. I have to say, as a proud resident of Wales, that those two nations have always led the way in relation to children’s rights.

As others have said, this is a very adult-focused Bill, but there are more than 12.6 million children aged 18 and under living in England, compared to just under 10.5 million of 65 year-olds and over—people like me. As drafted, the Bill does not explicitly recognise the health and well-being needs of those children and young people, who, as we have heard, have very specific needs and no voice and are often more dependent than adults on integrated services. They could benefit from the Bill perhaps more than any other group.

We know that around half of mental health disorders start at the age of 14 to 16 and that, although research has shown that around 30% to 40% of the risk of anxiety and depression is genetic, 60% to 70% is environmental—and we can change the environment. I am grateful to Barnardo’s for these figures. In addition, this generation, from infants to older teenagers, will have had their physical health and mental well-being impacted by the pandemic, and in just over a decade, over half of this group will have left school and entered further and higher education or the workforce. Other amendments will allow the ICBs to gather information and share it. This amendment would allow them to publish an impact assessment, which would help NHS England to publish what it has to publish.

The Government cannot meaningfully address the challenge of improving overall population health without tackling child health inequalities. The success of the Bill should be measured by its practical and tangible impact in ensuring children and young people’s access to timely and appropriate health and care services, and ultimately in doing what the Government want to do: improving health outcomes for the whole population.

My Lords, the House will recognise that children have very different needs. They are vulnerable in many ways and in need of the recognition that all the services have to work together. It seems strange that in a Bill on health and social care, children are not identified as a special group. I support these amendments.

My Lords, today’s debate has shown the strength and depth of feeling across your Lordships’ House that children and young people should be properly provided for within the scope of the Bill and not just as an afterthought, as many noble Lords have said.

Intervening in the early years of a child’s life is the most effective way of shoring up their good health and well-being as an adult. This group of amendments seeks to do just that, ensuring that our children are not sidelined in a healthcare infrastructure currently designed with adults, and just the NHS, in mind. This group also seeks to strengthen the Bill by including safeguarding, interagency working, service integration and data sharing, especially between government departments and the NHS and social care.

I thank noble Lords for putting forward these amendments, particularly the indefatigable noble Baroness, Lady Tyler, for her proposals across Clauses 20 and 21 to ensure the joining up of the roles and work of ICBs and ICPs in these crucial areas. Indeed, what is particularly striking about today’s debate is that the experience and contributions of noble Lords have joined up children’s needs across a whole range of service provision and support in a way that government structures currently fail to do. This is a major issue that needs to be addressed, particularly to address the needs of vulnerable children, as my noble friend Lord Hunt and other noble Lords have stressed.

If the Bill is to stand any chance of improving government health outcomes, it must start with the youngest among us all. Right now, in this, the fifth-biggest economy in the world, child health inequalities are widening, while 25% of children in the average reception class will be overweight. By the time those children are in year 6, it will be 40%. The all-cause mortality rate for under-14s in the UK is among the worst in Europe, and the World Health Organization tells us that 50% of lifetime mental illnesses start by the age of 14. Noble Lords will recall the debate last week about the need for robust mental health services, which include those around potential young suicides, self-harm and eating disorders. As the charity YoungMinds reminds us, after-care and follow-up are crucial although, sadly, ignored in current sustainability plans, as the noble Baroness, Lady Finlay, pointed out.

The Royal College of Paediatrics and Child Health has expressed particular concern that there is currently no duty in the Bill to include representation from children’s health and care services on integrated care boards. The noble Baroness, Lady Finlay, underlined in her Amendment 87 the importance of safe staffing levels and of this in driving forward improvements in child healthcare outcomes and ensuring that children and young people can access the care they need, when they need it and from the most appropriate person or team.

Barnardo’s is similarly worried about the absence of a child impact assessment, without which there will be no clear, objective idea of the impact of the changes in this Bill on young people. The right governance and rigorous evaluation, aimed at providing lessons learned for future service design and reform, can surely only be a good thing. We strongly support Amendment 142 on this issue, in the name of the noble Baroness, Lady Walmsley, which calls for the impact assessment to be undertaken within two years of the Bill’s implementation. It also emphasises the need for an annual report and debate in Parliament on the impact of changes, scrutinising, in the first year in particular, how the changeover from CCGs to ICBs is working in practice.

Following last week’s debate on the appalling backlog of waiting lists and the NHS’s duties under the mandate and constitution, I remind the Committee that last month’s National Audit Office report showed that more than 288,000 children and young people are waiting for NHS treatment, 86,000 of whom have been waiting for longer than the 18-week target I asked the Government to reaffirm.

Whether it is ensuring proper information sharing between care providers, safe staffing levels or clarifying how the Better Care Fund can specifically be used to better integrate children’s services, these amendments have compassion and common sense behind them. We have an opportunity in this Bill to give our children a healthier future. I hope that the Minister will agree.

My Lords, I am sorry to intervene at this stage but I cannot let the opportunity pass to say, in my view, how important it is that children be particularly referred to and their circumstances be properly taken into account. We have very powerful legislation on the care of children, but the same is not true with health, and it is extremely important that that be kept in view. Apart from anything else, special staff and treatments are required for children, and I therefore strongly support this amendment. I am sorry that I was not able to do so at a more appropriate time, but I arrived a little later than I would have liked.

My Lords, I begin by thanking all the noble Lords who have tabled these amendments for debate, and noble Lords from across the House for their eloquent contributions. As the noble Baroness, Lady Wheeler, rightly said, it is important that, as the fifth-largest economy in the world, we treat all our citizens equally and give them the respect and access to services they deserve. As she also said, the strength of feeling across the House on the importance of this issue is clear, and this was amplified most eloquently by my noble and learned friend Lord Mackay of Clashfern.

With your Lordships’ agreement, I will look at some of these amendments from a different perspective. Each amendment touches on a different aspect of providing health and care for children. Before I turn to matters of detail, let me say that we believe that the Health and Care Bill’s proposals represent a huge opportunity to support and improve service planning and provision and ensure that they better meet the needs of infants, children and young people.

With your Lordships’ permission, I will start by addressing Amendment 20, which was spoken to so eloquently by the noble Baroness, Lady Meacher, the noble Lord, Lord Scriven, and my noble friend Lord Polak. It would clarify and prioritise how the Better Care Fund could be used to integrate services for children. I remind the Committee that the relevant legislation does not prevent the use of the Better Care Fund for the integration of children’s services. The disabled facilities grant within the BCF is already used to fund housing adaptation for individuals aged under 18 with disabilities. Some areas also extend the scope of their BCF-funded initiatives to include integrated services for children and young people.

However, we can go further. The Government believe that integrated care partnerships and integrated care boards represent a huge opportunity for partnership working. The Bill explicitly requires integrated care partnerships to consider whether needs could be met more effectively under Section 75 of the NHS Act 2006, which provides for arrangements to be made between NHS bodies and local authorities. The Government are also working on bespoke guidance on the measures that statutory bodies should take to ensure that they will deliver for babies, children and young people.

Turning to Amendment 51, I particularly welcomed the contribution of the noble Lord, Lord Hunt of Kings Heath, on vulnerable children. The amendment would require ICBs to share and collect information from partners when arranging for the provision of services for pregnant women, women who are breastfeeding and young children. I sympathise with the amendment, and in fact, I would go further: one of my three big priorities in my departmental portfolio, as the Minister for Technology, Innovation and Life Sciences, is to push digitalisation and sharing data. As all noble Lords have rightly said, that is not just for children’s services but right across the sector. We hear stories almost every day of something that could have been prevented, had data been shared more appropriately.

Even asking your GP to put your data on the NHS app is not as simple as it should be. When I asked my GP to do so—I did not tell them that I was a Minister, although maybe I should have; however, I do not like to pull rank—I was told that I had to write to them. I sent an email to my GP’s surgery but to this day, the data is still not on there. That shows that the problem in making sure that we can share data and have a common architecture through which we can access it in an appropriate manner, from a trusted research environment, is not just the technology; we must also tackle the culture and the processes to make sure that data is shared. Even though we have put into the Bill provisions on data, which noble Lords will discuss later, it is not enough to say that we need a trusted research environment or to lay out a shared architecture. We must make sure that we drive that culture right across the health and social care system.

This amendment would position integrated care boards as a central repository of data in the health and care system, a function that we do not believe they are well placed to take on. As a result, I regret that we cannot agree to the noble Baroness’s proposals. We completely agree that data has to be shared, but we see the health and social care information system known as NHS Digital as the national information partner to the whole health and care system in England—one that can better collect data and share information. I was having a conversation with an NHS manager the other day, and it is clear that there is some confusion over data. We have to distinguish between management and performance data, and patient data. Right across the health and social care system, an awful lot of time is spent on the telephone by people centrally, wanting to collect data and thereby blocking patients getting through to services they want to access. If we had the right data architecture, a lot of management and performance data would automatically be shared. That would improve the system, making sure that patients can be treated and that clinicians are aware of their data records wherever they happen to be—especially in emergency situations when they are far from home, but also daily in our healthcare system.

That is why we believe it is more appropriate for the health and social care information system, NHS Digital, to be the data partner for the whole system. We have tasked it, through the Harnessing Digital Technology workstream of the Maternity Transformation Programme, to focus on the interoperability of different records. Noble Lords will be aware that the Bill makes sure that data can be better shared right across the system, to a standard, ensuring that in some areas where data is not shared, such as GP patient records, it is better shared across the system.

I turn to Amendment 87, in the names of the noble Baronesses, Lady Finlay and Lady Bennett. It would require integrated care boards to drive improvements in child health outcomes, including through appointing a children and young people’s health lead. As your Lordships will be aware, the Bill already contains measures that require ICBs to secure continuous improvement in the quality of services and in the related outcomes, and that includes outcomes for children. ICBs will also be required to ensure that health and care services are provided in an integrated way when this would improve outcomes, but also—the noble Baroness, Lady Finlay, referred to this—when children reach the cliff-edge age whereby they are no longer considered children, but part of adult services.

There is also existing legislation—the Children’s Act 2004—that will require local authorities to make arrangements with ICBs to improve the well-being of children. As a result, the Government do not think that an extra duty would be helpful here, even if we agree with the spirit of it.

I want to take a moment to draw the Committee’s attention to some of the work already going on in this area; I thank noble Lords from across the House for acknowledging some of the work that the Government are already doing in this area. To deliver the commitments in the NHS Long Term Plan, children and young people’s senior responsible officers have been appointed at a regional level, as well as children and young people’s leads in integrated care systems. In addition, there will be wider clinical leads for children and young people in ICBs, including leads for children’s mental health, learning disability and autism, and overseeing specialised commissioning functions.

Amendment 98 would require the Secretary of State to lay regulations to provide formal guidance on how the ICB must perform its duties as a statutory safeguarding partner. I hope I can reassure the noble Baronesses, Lady Tyler and Lady Masham, that this amendment is unnecessary as all the existing statutory duties of clinical commissioning groups—CCGs—will be transferred to ICBs anyway, including the child safeguarding responsibilities set out in the Children Act 2004. The chief executive will take on responsibility for their local health system’s part in multiagency child safeguarding arrangements and the 2018 statutory guidance, Working Together to Safeguard Children, will be updated accordingly.

Amendment 103A in the name of the noble Baroness, Lady Bennett, would require ICBs to consult an advisory board comprised of young people on matters of youth ill-health prevention and treatment provision. I acknowledge the noble Baroness’s concerns and hope that I can provide some reassurance as to our commitment to public involvement. Our intention with the duties we are looking to place on ICBs is to establish a comprehensive framework of requirements while allowing them significant flexibility to deliver it in a way that best suits local needs.

This includes a provision relating to the public involvement of all ages and requires ICBs to make arrangements to ensure that the individuals for whom services are being or may be provided are involved in the ICB’s decision-making on commissioning. The provision covers those health services relating to the care and prevention of illness among children and young people. It means that ICBs already need to ensure that young people are appropriately consulted in a way that best suits their local system needs. I hope that this will reassure the noble Baroness, who I am sure does not wish to create a duplicate provision.

Amendment 141 was tabled by the noble Baroness, Lady Tyler, my noble friend Lord Shinkwin and the noble Baroness, Lady Finlay, and eloquently spoken to by the right reverend Prelate the Bishop of Birmingham on behalf of his colleague, the right reverend Prelate the Bishop of London. It would require NHS England to publish a national accountability framework for children and young people and to use that framework to assess the boards. Again, I hope that I can give some assurance that this is already provided for in the Bill.

Under new Section 14Z57, NHS England

“must conduct a performance assessment of each integrated care board”

and produce a summary report. The assessment will look at a number of issues, including improvement in the quality of service and reducing health inequalities. It will also apply to all age groups; indeed, much of today’s debate and noble Lords’ contributions touched on some of the issues that we covered in the earlier debate on tackling health inequalities; I know that noble Lords across the House share those concerns.

Further, under the new section, NHS England

“must consult each relevant Health and Wellbeing Board … on any steps that the board has taken to implement any joint local health and wellbeing strategy”,

which is based on the assessment of relevant local needs and keeps that connection to place below the level of the ICB. As a result, I would gently advise against creating a separate national accountability framework solely for babies, children and young people simply because this would create an additional burden and risks creating confusion between accountability frameworks. We want to make sure that we have proper accountability and avoid confusion.

Amendment 142 in the name of the noble Baroness, Lady Walmsley, would require ICBs to set out in an annual report how they are meeting the needs of children and young people. I assure the noble Baroness that, under new Section14Z56, to be inserted by Clause 20, each ICB is already required to prepare an annual report on the discharge of its functions, and NHS England can provide guidance as to its content. We expect that, in preparing its report, the ICB would set out how it is meeting the needs of babies, children and young people. We believe that a report focusing exclusively on children and young people is unnecessary and likely to duplicate existing work.

Amendment 177, also endorsed by the noble Baroness, Lady Whitaker, and in the name of the noble Baroness, Lady Meacher, would require the Secretary of State to lay regulations and publish guidance on how integrated care systems should meet the needs of babies, children and young people. I hope to reassure the noble Baronesses that we are already working with NHS England, the Department for Education and stakeholders on bespoke guidance for bodies in local systems on the measures they should take to ensure they will deliver for babies, children and young people. This will include guidance on the exercise of functions currently conferred on CCGs that will be taken up by ICBs, including children’s safeguarding, and on children with special educational needs and disabilities.

I hope that I can assure the noble Baronesses that going further than this by requiring the Secretary of State to publish regulations may well interfere with the ability of ICBs and ICPs to innovate to best meet the needs of the babies, children and young people in their local population.

Amendment 162 would expand the Care Quality Commission’s duty to include children’s social care in co-ordination with Ofsted. I gently suggest that the existing clause already allows the CQC to look at the provision of health and public health services for both adults and children. It can also look at the transition between children’s and adult social care and would be able to look at the system’s role in that transition in these reviews. In addition, it already looks at the safeguarding of children in health care and the provision of healthcare to children who receive social care.

In addition, existing provisions can and do allow for the CQC to work jointly and proactively with Ofsted, for example on joint targeted area inspection or special educational needs and disability—SEND—inspections. For the CQC to look at children’s social care as proposed by this amendment would also risk duplicating Ofsted’s role. The existing mechanisms are already an effective way for the CQC and Ofsted, as well as other organisations, to work jointly, and I am slightly concerned that any further amendment risks undermining that, which I know the noble Baroness does not intend.

Amendment 151 would require an ICP specifically to consider the needs of babies, children and young people. Once again, I hope that I can assure noble Lords that this is already our intention. The Bill states that the ICP strategy must set out how assessed needs will be met by the ICB, NHS England or the responsible local authorities. “Assessed needs” includes the needs of all children and young people aged nought to 25. If this amendment were to be accepted, it could affect how the clause is interpreted by suggesting that other population groups are not in scope or of lower priority.

In addition, the September 2021 ICP engagement document sets out that the ICP should highlight in its strategy where co-ordination is needed and specifically clarifies that this includes action to improve the life chances and health outcomes of babies, children and young people. Our bespoke guidance for ICBs and ICPs on babies, children and young people will cover the importance of ICP integrated care strategies having clear objectives for these populations.

Some noble Lords raised the sad and distressing cases of Arthur Labinjo-Hughes and Star Hobson. The Government have been deeply saddened, as have all noble Lords, by these tragic cases, and are undertaking urgent action to seek the answers we need. The Child Safeguarding Practice Review Panel is conducting a national review into these cases and what improvements are needed by the agencies that came into contact with them in the months before Arthur’s death. A joint targeted area inspection has also been commissioned to assess the effectiveness of child protection arrangements in the relevant safeguarding agencies. Together, these two actions will establish what national lessons need to be learned and how local agencies can work together to keep children safe.

I am grateful to all noble Lords who have spoken in this important debate, raising incredibly important issues but in an emotive way. I hope I have been able to give some reassurance that these matters are taken seriously by the Government. However, as the noble Baroness, Lady Wheeler, said, noble Lords should be in no doubt that I understand the strength of feeling of the Committee. This will need further conversations with noble Lords who have spoken today and those who have tabled amendments, as well as with others. I hope, for that reason, that noble Lords will feel able at this stage to withdraw or not press their amendments.

My Lords, I say a huge thank you to and congratulate Members from across the Committee who have made the most amazingly powerful contributions to this debate on the children’s amendments. I think that we are all just taken aback that there is no mention of children in these crucial clauses. I confess that I was very disappointed in the Minister’s response; we do not seem even to have managed to persuade the Government that the Bill should mention children somewhere, so I think that a number of us will want discussions with him before Report to see whether we can make some progress on making sure that children in future are taken care of. On that basis, I beg leave to withdraw my amendment.

Amendment 20 withdrawn.

Clause 10 agreed.

Clauses 11 and 12 agreed.

Amendment 20A

Moved by

20A: After Clause 12, insert the following new Clause—

“Appointment of a National Clinical Director for Women’s Reproductive Health

NHS England must appoint a National Clinical Director for Women’s Reproductive Health.”Member’s explanatory statement

This amendment would require NHS England to appoint a clinician to provide national clinical leadership, advice, input and support on issues relating to reproductive healthcare.

My Lords, I declare an interest as the co-chair of the All-Party Parliamentary Group on Sexual and Reproductive Health. At Second Reading, I said that it was not at all clear exactly what contribution the Bill would make to the strategic aims that all parties have to turn the NHS into a body that is preventive, forward-looking health promotion service, which concentrated far less on the acute sector and looks at population health much more strategically while making greater use of technology and, in doing so, seeks to reduce health inequalities. On day 3 of the detailed examination of the Bill in Committee, I am still no clearer about that.

In every set of amendments that noble Lords have put forward, they have tried to ascertain from the Government exactly how the Bill will achieve that aim—and, as yet, the answer is unclear. But if the Bill is about anything, it is about enabling those within the NHS, as well as patients and interest groups that work with them, to take what we have as a National Health Service at the moment and introduce into it new and innovative ways of looking at conditions, to build different pathways and processes of treatment in order to bring about the much-improved health outcomes that we believe are possible from the NHS.

In this amendment, I am very much influenced by the 2009 report from the Royal College of Obstetricians and Gynaecologists, Better for Women, which did exactly that: it took a longitudinal life-course investigation of women’s health needs. The report decided that the way health services have traditionally been provided is lacking, because it is by and large built on some fairly old established ways of thinking from a provider’s perspective rather than from the perspective of women and their partners. In terms of reproductive health, the RCOG report showed, with a number of different stakeholders, the many different ways in which we could look at women’s health and achieve far better outcomes.

The RCOG report started by looking at the data on reproductive health. Bear in mind that reproductive health is unique. It is perhaps the one area of medicine in which the people engaging with health professionals are, for the most part, not ill. They are in need of medical intervention and occasionally surgical intervention, but by and large they are not ill. They are going through a process that is natural but needs the informed intervention of health professionals. It is very different from other areas of acute medicine.

We have a national health service and all the years of experience behind that, yet we currently have very poor outcomes for women. Almost half of British women experience very poor reproductive and sexual healthcare. It is estimated that about 45% of pregnancies in the UK are either unplanned or there is ambivalence, and that is after decades of different Governments making concerted efforts to deal with unwanted pregnancies. The abortion rate is probably the highest it has been since records began and, crucially, access to contraception, and to particular forms of contraception, including long-acting reversible contraception, is now in significant decline. Also crucially, cervical screening for eligible women is at 70%, significantly below the national target of 80%.

This is largely due to one simple fact: we have completely fractured service provision. We know that reproductive health services were traditionally part of primary care; indeed, access to information about reproductive health services was part of the education service. We know that an element of women’s reproductive health will always have to sit in the acute sector, yet in all these years we have failed to build a coherent system that works with the three different elements—primary care, acute care and the education system—and in which women can access what, by and large, they know they need.

For some sections of our community, the outcomes are even worse. We know that the figures are much worse for women from black and minority ethnic communities. Eight per cent of abortions occur in women who report as being black, but that is in 3% of the general population. We also know that black, Asian and minority ethnic women also have much worse outcomes in maternity services. Only of late has that begun to be looked at and systematically analysed by one or two very good, interested professionals in maternity units.

The amendment, which calls for a national director, was tabled to highlight the case for having somebody in the leadership of the NHS who can look at the whole question of information for women, access to services and the different outcome statistics for different methods of arranging reproductive health services. We have different arrangements in the four nations of the United Kingdom because this is a devolved matter, so we can have comparative statistics to see which approaches work better.

If we follow the lead set out in the RCOG report, we can have an inclusive approach to women in all their diversity, and inevitably we will look at systems that are beneficial to men. Clearly reproductive health has a particular impact on the lives of women, but men are included too.

It seems to me that, if this Bill and the flexibilities in it are a route to better outcomes, this is perhaps one way in which we could try to have innovation at the centre. It impacts in different ways throughout the system, which hopefully will be integrated between local government, primary care and tertiary care. It is in that spirit that I beg to move the amendment.

My Lords, I support my noble friend’s proposal for this simple reason: it would enable focus on the very particular needs of women’s reproductive health. As we heard earlier in our debate, children have specific needs. Well, so do women, particularly with reference to their reproductive cycle.

I am particularly keen on the element of prevention of ill health. Many services for women focus on it. Obviously, we all have cause to be grateful for the breast and cervical screening services that are available; I was professionally involved with them many years ago. It is also, however, cause for concern that the number of women taking advantage of those important preventive services has been falling. A national lead would have the expertise, responsibility and ability to focus on areas where women need to be encouraged to take advantage of the services that are available to them.

There must be concern about the quality of maternity and perinatal services, given some of the dreadful cases that we have heard about and the poor quality that has been rife in a few centres in the country in the past. I hope that things are being put in place to improve that, but there is an element of prevention here too. Good-quality maternity services prevent women and their babies having a bad experience at the beginning of their life together. It is so important for the ongoing mental and physical health of the child that women can bond with their children and babies can bond with their mothers. That bonding starts at the very beginning, but it is less likely to happen with poor-quality maternity services, which of course cost the health services and the country later on.

These services are vital for preventing further problems not just for the mother but for the children. It is the sort of thing that a highly qualified and knowledgeable national lead can focus and advise on in trying to ensure that access to good-quality services is available to all communities in the country. My noble friend Lady Barker highlighted the difficulties that some communities face in getting those good services. I hope that the Minister will consider this amendment in a positive light.

My Lords, first, I thank the noble Baroness, Lady Barker, for introducing this amendment. Yet again, it is an indication that if this Bill actually presents the opportunities that the Government tell us it does, they need to accept something that recognises the opportunities that are being suggested to them across a whole range of issues, including children, about whom we have just had a very good debate.

The amendment would require NHS England to appoint a national clinical director for women’s reproductive health to provide the kind of clinical leadership that the noble Baroness, Lady Walmsley, talked about and to support this important area of women’s reproductive healthcare. In recent years, the Government have issued policy papers about women and health, so I would have thought that this particular proposal would chime with that.

We know that almost half of British women will experience poor sexual and reproductive care. It is clear that we can take the opportunity to improve this situation, particularly on the postcode lottery that some women face. I can certainly see, as the two noble Baronesses have said, that a single clinical director for the whole of the UK would give the area energy and focus, particularly for the 50% of women who have not had a good experience. We agree with the Faculty of Sexual and Reproductive Healthcare, which supports this amendment. I am glad of the opportunity to speak on this important issue, and I hope that the Minister may have some good news for us.

My Lords, I am most grateful to the noble Baroness, Lady Barker, for bringing Amendment 20A before the Committee today, and to the noble Baronesses, Lady Walmsley and Lady Thornton, for their very wise insights. I do not think there can be anyone in Committee who does not agree that delivering high-quality reproductive healthcare is critical for the health service.

This is definitely a priority area in the Government’s work on the women’s health strategy for England. Proof of that, I hope, is that on 23 December 2021 we published Our Vision for the Women’s Health Strategy for England. The vision is informed by analysis of the call for evidence, which ran for 14 weeks from March to June 2021.

On reproductive health specifically, the vision sets out our ambition that

“women can access services that meet their reproductive health needs … and women’s experiences of services and reproductive health outcomes are improved”.

As a bit of further background, we were clear that the strategy should be evidence-based, so the vision is in fact underpinned by the analysis of what we heard through the nearly 100,000 responses to the call for evidence. We owe it to women and girls across England to get it right, and when we publish our full strategy later this year we will set out our ambitions in more detail and will follow that up with full delivery plans where appropriate.

Joined-up national policy and clinical leadership are essential to the delivery of women’s reproductive health services. I can assure the Committee that this is also recognised as a priority by NHS England and NHS Improvement. We continue to work closely with NHS England and NHS Improvement on the development of the women’s health strategy for England. We will also be working closely with NHS England and NHS Improvement on the Government’s forthcoming sexual and reproductive health strategy to ensure that, together, the women’s health and sexual and reproductive health strategies take a holistic and comprehensive approach to improving women’s reproductive health. The sexual and reproductive health strategy will consider how we can strengthen leadership and accountability in relation to reproductive health, as well as how we improve access to contraception.

Self-evidently, NHS England regards these as major areas of work. We do not, however, think it appropriate in the Bill to require NHS England to appoint an additional national clinical director specifically for reproductive health. The first reason is because, within the current NHS England and NHS Improvement, the role of national clinical director for maternity and women’s health already exists. This position is responsible for clinical advice and leadership on obstetrics and gynaecology matters, which are of course important areas of women’s reproductive health. The post is currently held by Dr Matthew Jolly. The national clinical director works alongside the national speciality advisers for gynaecology and four other national speciality advisers, covering broader aspects of obstetrics and public health. Creating an additional post of national clinical director for reproductive health is likely to be counterproductive, in that it may lead to duplication or less clarity over responsibilities and clinical leadership.

Secondly, as a point of principle, we should try to resist the urge to specify the clinical directors that NHS England should appoint. If we make a habit of doing that, it strips it of its operational autonomy. It is better to allow it to determine the directors it needs, based on the challenges it faces.

The noble Baroness, Lady Barker, rightly pointed out the disparities that exist between different groups of women in this country. I can only express my agreement with the points that she made on that subject. It is essential that we recognise that women are not a homogenous group. The different characteristics that make up each woman’s identity can lead to multiple, sometimes overlapping barriers to accessing healthcare and can contribute to disparities in health outcomes.

When we launched the call for evidence that I mentioned, we said that we wanted to better understand where there are disparities between men and women and between different groups of women. As set out in the vision, a key priority running through this work is to ensure that all women have equitable access to and experience of services and that disparities in outcomes are reduced.

In addition, NHS England and NHS Improvement regularly review their clinical leadership, including national clinical director and national specialty advisor roles, to ensure alignment with strategic priorities for the NHS and patients, as set out through the NHS Long Term Plan, and to support areas in which NHS England and NHS Improvement are taking forward major programmes of work or areas identified as priorities for improvement. In other words, this is not a static landscape. I hope that the noble Baroness will be reassured by this and so will be able to withdraw her amendment.

My Lords, I thank noble Lords who have contributed to this debate. I realise that time is at a premium, but it was useful to air these issues. I thank the Minister for his full response, although it was not entirely unexpected.

I do not doubt that NHS England has a number of clinical directors, but the stats speak for themselves: 45% of pregnancies are either unplanned or ambivalent and abortion rates are at their highest level. Whatever we have at the moment is not working. The call for this director came from the Faculty of Sexual and Reproductive Healthcare and RCOG; they are people who know this subject in great detail.

I know that across the NHS there are different initiatives trying to bring a greater understanding of gender in medicine. For example, for NHS England I know that the Government are working with the Royal College of Physicians to try to bring about a greater understanding of gender in medicine in the form of training for medical students. But this area of medicine is one in which information, and particularly digital transformation, is already having a significant impact and could have an even greater impact on outcomes. That in itself is a challenge to practitioners, and NHS practitioners are not always the best at dealing with that sort of challenge to their existing practice. Therefore, there is perhaps a case for refreshing the clinical leadership of NHS England in this respect.

If the stats do not improve, we will definitely have to look at this before too long. I listened to what the Minister said about the two strategies that are coming out and I will look at them with a keen eye. In the meantime, I beg leave to withdraw this amendment.

Amendment 20A withdrawn.

Clause 13: Role of integrated care boards

Amendment 21 not moved.

Clause 13 agreed.

Clause 14: Establishment of integrated care boards

Amendment 22

Moved by

22: Clause 14, page 9, line 10, at end insert “within a period of three months following the publication of the list of initial areas.”

Member’s explanatory statement

This amendment sets a determinate period for the clinical commissioning group or groups to propose the constitution of the first integrated care board.

My Lords, I will also speak to Amendments 24 and 53 in my name. Amendments 22 and 24 are probing amendments about the time it should take to set up a new ICS constitution and who should do it if the local CCGs fail to do so. I also support Amendment 23 on the importance of consultation, which is in the name of the noble Baroness, Lady Thornton.

I welcome the short delay to implementation that the Government have announced. However, as the Minister probably knows, I am still dubious about whether the Bill is being brought forward at the right time. The NHS is currently in crisis, the staff are exhausted, many are absent through Covid illness or the need to isolate, and the Army and volunteers are being brought in to help. There is evidence that some of the shadow or non-statutory ICSs are not quite as ready as some noble Lords have suggested. Last year, nearly half of them did not publish board papers as they are supposed to do. This is a strong indication that they have not been holding routine public board meetings or joint committee meetings. They may say that they are not obliged to do so until the Bill is implemented, but NHS England said in a paper in 2019 that ICS partnership boards and joint committees, despite not then being statutory bodies,

“should be required to … Make decisions in public meetings … Minute and make public its discussions and decisions”

and publish board papers in advance of meetings. This followed the Commons Health and Social Care Select Committee recommending that

“we expect ICSs to meet the highest standards of openness and transparency in the conduct of their affairs by holding meetings in public and publishing board papers and minutes.”

It seems that this has not been happening.

At Second Reading, we heard the noble Lords, Lord Stevens of Birmingham and Lord Adebowale, as well as the Minister, assuring us that the NHS is ready for these changes, has been preparing for them for some time and, indeed, has been behaving as far as possible as if these statutory powers and duties to collaborate were already in place as shadow authorities. The passing of legislation, we heard, was just a small barrier to getting on with things. We are being asked to rubber-stamp the way they have done it, despite the amendments that many noble Lords have laid to ensure that people with the right skills and experience to achieve the ICSs’ mandatory objectives are appointed to the boards. I think that the noble Lord, Lord Hunt of Kings Heath, will have more to say about that.

What we do not want is a postcode lottery where some areas, which are already well on the way to getting their ICS running smoothly, are getting on with it, while other areas—perhaps those that have been particularly badly stretched during the pandemic and had their attention elsewhere—find themselves with gaping holes in their commissioning for an unacceptable period or even with the wrong people on the board.

That is why I have suggested in Amendment 22 that the relevant CCGs must set up the constitution of their ICS within three months of the passage of the Bill, which would give them time to appoint additional people to the board if your Lordships’ arguments persuade them, and the Government, that they need additional skill sets. In Amendment 24, NHS England can do it within the same period if the CCGs do not. The Bill says “within a reasonable time” but, if what I am being told about all the detailed preparation is correct, three months is a perfectly reasonable time.

Amendment 53, my other amendment in this group, refers to new Section 3A in Clause 16:

“Power of integrated care boards to commission certain health services.”

It changes the word “may” in subsection (1), which is about securing improvement, to the word “must”. It is a simple amendment, but it is fundamental to legislation that seeks to improve the way in which health and care services are provided through integration and collaboration. New Section 3A requires the ICB to commission services to improve its population’s physical and mental health and the prevention, diagnosis and treatment of their physical and mental ill health.

Why then, if all this welcome stuff is being specified, should we not mandate such improvement? Surely that is the whole point of the legislation. It is not just to make life easier for health and care staff by removing what have been called the clunky legislative barriers to integration. We are doing this to improve the services to patients themselves.

If the Minister accepts this amendment, it will not be the first time a Government have accepted a “may” to “must” amendment from me. Many years ago, it was accepted that the Children’s Commissioner for England must have regard to the UN Convention on the Rights of the Child. That mandatory duty has been welcomed by all Children’s Commissioners ever since, and they have not found it a burden. Indeed, it has given them an important framework for their work. I was able to convince the Government then that they had already committed themselves to having regard to the convention when they signed up to it years earlier, and that in setting up the duties of this new champion for children it was quite appropriate to restate the commitment that this new public servant should have the same duty, as it was central to her work.

I hope the Minister will see the parallel here: a mandatory duty to improve is exactly what the Government want, and have committed themselves to by laying the Bill before Parliament. Therefore, it should be made clear in the statute. I beg to move.

My Lords, the noble Baroness, Lady Walmsley, brought us very persuasively to the point of Clause 14, which I must say I am extremely puzzled about, because it purports to set out the whole set of arrangements that have to be gone through before integrated care boards can be set up as statutory bodies. However, it appears that that has already been done.

I register a very strong protest with the Minister at the actions of NHS England in going ahead and establishing these bodies, issuing extraordinary edicts such as no local authority councillor being able to serve on an ICB. What right does a quango have to say that local authority councillors cannot be represented on ICBs? This is absolute abuse of parliamentary power, because quangos do not have the right to set out what should happen on governance issues at local level in the NHS without parliamentary endorsement.

NHS England has put out a note that says that, subject to parliamentary progress, arrangements for the new statutory bodies are to come in now, on 1 July. How can that be, when we have not even gone through the sections that deal with the composition of integrated care boards? It is quite possible that your Lordships might insist on Report that local authority councillors are members of the ICBs. That is not impossible, so what will happen? Will the Minister say that, despite what Parliament says, the ICBs will go ahead, or does it mean, as I read this legislation, that the Government have to start again?

Lots of issues will be raised in this and the next group, not least the outrageous governance issue, which says that NHS England basically appoints the chair and the chief executive officer is also at its disposal. There is no attempt locally to have a board that elects its own chair or one that is appointed independently; they are essentially place-people put in there by NHS England. These are matters that Parliament should decide. I accept that Parliament may say that it is happy to go ahead on that basis—but I strongly object to this clause. It is dishonest; it purports to go through a process from the start that says that this is how ICBs will be set up—but they have all been set up, the boundaries settled and the chairs nominated, without any proper public accountability process whatever.

I hope that, when we come to agree Clause 14, the Minister will think again and that he will issue instructions to NHS England to withdraw the letter that says that the new arrangements will come into place on 1 July. I do not understand how that can possibly be.

My Lords, I speak to my Amendment 45. This is a disparate group of amendments, dealing with the issue of integrated care boards. I strongly support the comments already made. My amendment addresses another issue. There are questions about what the boards are; the issue is for whom they provide services, and how they are defined.

I have been made aware of a case that raises real questions about how this is going to develop. The case was reported in September, in the Manchester Evening News, about a woman who suffered burns while on holiday. She returned to her local urgent care centre in Rochdale and was advised that, because of long waiting times, she should go to another A&E in Bury. When she arrived there, she was told that that centre did not treat people from Rochdale, because of rules laid down by the integrated care board predecessor, which had established the rules in that part of Lancashire. She was left literally on the pavement, unable to obtain the care that she required.

That is a specific case under the existing rules, but it points out the lack of clarity in the Bill about how the integrated care boards will operate. The fear is that they will be membership bodies along the lines of health management organisations in the United States, which are responsible for providing services to members. That contrasts with the residential basis on which the NHS was based, at least up to 2012.

Proposed new Section 14Z31(4) gives the Secretary of State astounding power to set out which ICB is responsible for a particular individual’s care. I hope that the Minister will be able to provide some reassurance, but the problem with membership-based organisations is that, first, there will be cherry picking of patients and, somewhat counterintuitively, at the same time they will be competing for the less expensive patients. Without far more clarity through the Bill from the Minister, people will have reasonable fears over how these new organisations will work and how people will attain the services that they currently expect from a seamless provision of services. My amendment seeks to address the issue of it being a single service. We have these 43 ICBs, or whatever they are, but it is a single service, and patients can access services wherever it is best for them and not best for the service.

My Lords, I echo the comments from the noble Lord, Lord Hunt of Kings Heath.

We are living in a parallel universe. We are discussing the legislative framework for this new system while, out in the real world, the foundations and the bricks are being built. People are in place. Dates are being set. People are being told that they cannot be on boards. This Parliament has not decided. Under what legislative framework are these organisations working? They have no legitimate powers or approval from Parliament, yet they are being set up. People are being put in place. Chairs are being appointed. Councillors are being told that they cannot sit on ICBs.

This Parliament has not decided that yet. Letters are going out from NHS England telling the system when it will start, and Parliament has not gone through the legislative process. This is not collaborative working at a local level, because many local authorities feel that they are not even in the car let alone in the driving seat; the car is leaving and they are being asked to join at a later date. This is not a good start for collaborative working. It has to stop. NHS England has to be reined in and told that, until there is a legislative framework, the system must stay still.

In that sense, I support Amendment 23, because, significantly, it would give local authorities powers to determine their own destinies. As a former NHS manager, I am not somebody who says that this is a bunch of bureaucrats who are a waste of time. I understand the importance of NHS leaders and managers, but they cannot start drawing lines on a map and ignore local authorities’ democratic mandate. This system is not just about administrative convenience; there are real questions about the identity of local authorities, which have built regional boundaries.

Some local authorities look two ways. Let me give noble Lords an example, not a health example but something that happened in south Yorkshire and in which I was involved. The people and the authority of Barnsley, on the edge of south Yorkshire, look to west Yorkshire as well as looking to, and being administratively in, south Yorkshire. As I am sure the noble Baroness, Lady Bennett of Manor Castle, will know, because she knows the local area, when we set up the economic framework it caused a lot of distrust and bad blood for four years, simply because the local authority was not allowed to use the democratic mandate that it had been given and people from the centre were pushing how local economic partnerships and mayoral authorities should be set up.

If we are talking about local authorities and the National Health Service working in a collaborative way, the democratic right of local authorities must be taken into consideration. They know the nuances of their local people in a way that NHS managers do not. I say that having been an NHS manager, a councillor and a leader of a council. It is important to establish the democratic mandate in the system right from the beginning. I can tell you now that if you get a system where two local authorities out of four are forced into an area that they do not want to be in, I can tell you now that it will not work. There will be years of fighting and distrust. This is not just a plea; this is really important. The system has to stop. It has to be a collaborative approach in which local authorities’ elected mandate is key, but NHS England must also take its foot off the brake and wait until this Parliament has set the legislative framework before the system gets going. This is a parallel universe and it has to stop.

My Lords, I share the outrage of my noble friends and the noble Lord, Lord Scriven, about how this is proceeding. In a way, I can see how some of this has come about. Perhaps the Minister will say that the Government are building on what is happening on the ground. It is perfectly true that many organisations at a local level found their way around the disaster that was the 2012 Act. They set up systems so that they did not have to follow it and could collaborate and not compete. Many of those systems operate practically on the ground, but they do not operate in a proper legislative framework, as we have heard, and nowhere is that more important than the outrageous decision in some areas to preclude local authorities, as noble Lords have said.

For those of us who know our way around the system, it is easy to ignore the fact that most patients and users—after all, the Bill is supposed to be focused on their experience and what their outcomes will be—have no idea about the difference between local authorities and the local health producers. To them, it is all the council or the NHS, and they have no idea that the GP, the district nurse, the care provider and the local care home do not talk to one another or have any mechanism for coming together. That is the kind of mechanism that we are trying to establish. We must ignore the informal arrangements that may have taken place as a result of the 2012 Act, and establish the proper legislative framework in which all those who have the interests of patients and users at heart are properly represented.

My Lords, I declare my position as a vice-president of the LGA and the NALC. I will speak particularly to Amendment 23 in the name of the noble Baroness, Lady Thornton, to which I have attached my name; it is unfortunate that we have not heard from her yet. It is about consultation with local authorities, which is what so much of our debate on this group thus far has already addressed. I particularly associate myself with the comments of the noble Lords, Lord Hunt and Lord Davies. A great rearrangement of the NHS has happened entirely under the radar, and it is deeply disturbing to those of us concerned about the risk of the Americanisation of our NHS and its takeover by private US healthcare for-profit companies.

I am slightly surprised that no one has yet mentioned the report in the Times this morning about the Health Secretary seeking to model NHS hospitals on academy schools, which has been seen as a large privatisation of our education system. Also, we found out only recently and entirely by accident that the Chancellor was giving days of his time to visit US healthcare companies in California. When you look at those facts, the runes seem very disturbing. To defend against the incidents that the noble Lord, Lord Davies, referred to, and the restructuring by stealth, we need local authority involvement. That is what Amendment 23 seeks to ensure, at least in part.

I also want to comment briefly on another amendment in the name of the noble Baroness, Lady Thornton, Amendment 44, which is about protecting the collective arrangements for pay and conditions for staff. We have to look at it in the context of the survey this week that showed one in four doctors saying that they were exhausted to the point of being impaired in their work. We have an exhausted, utterly worn-down workforce, and we have nurses who are not paid enough and end up going into food banks to feed their families.

It is obviously a matter of justice that we at least protect, and in fact improve, the pay and conditions of healthcare workers. But more than that, it is very much an issue of health as well, because workers who are overworked and underpaid are simply unable to deliver the quality of care that we would hope to provide.

I very much hope that this group of amendments will get some attention, because this has all happened under the radar. There has been no public discussion of this and that desperately needs to happen, so once again it seems to fall to your Lordships’ House to try to get this on the agenda.

My Lords, I will speak to the amendments to Clause 14, which is a very important clause. There is absolutely no doubt about that, and the Minister can be in no doubt that that is exactly how we see it. It was touch and go whether we would have a clause stand part debate on this, and I am not sure that we were right not to do so, because this debate, particularly my noble friend Lord Hunt’s comments, has highlighted some serious problems.

My noble friend Lady Pitkeathley is quite right that the arrangements that we are seeking to put into statute, which have grown up over the last few years to allow areas to collaborate, were the right thing to do. In my area of the world, I have no doubt that it was important that the boroughs collaborated together, particularly in their relationship with and commissioning of services from the very big providers.

The question in Clause 14 is: what is going on with the arrangements that the Government are putting into statute? I am very pleased to follow the noble Baroness, Lady Walmsley, and to speak to Amendments 23 and 44 in my name. Amendment 23 addresses the vexed issue of boundaries for an ICB. In this Bill we are dealing with geography, whereas the 2012 Act dealt with GP lists. The area of an ICB is defined in terms of tier 1 local authorities.

Concerns have been expressed, because the NHS is often a bit clueless and sometimes very defensive about local government, its boundaries and its powers. Maybe the Minister will tell me I am wrong, but I suspect that one of the reasons why elected members have been precluded from the boards is that the NHS does not feel comfortable with the direct democratic accountability at that level. That is a great shame. I think it is wrong; accountability is extremely important.

How can we have an integrated service when social care is provided by local government, which is democratically accountable, and we want to integrate that with the NHS at a local level in an area to provide the best service that we can for that population and those patients? The almost offensive way of constructing a board that does not allow elected representatives is not acceptable.

My quite modest amendment seeks to change that situation for the future. There were exchanges in the Commons about this, and there have been meetings with disgruntled authorities that seem to have ended without agreement. We may need to take a step back and learn some of the lessons, perhaps from Scotland and Wales where more logical boundaries have been applied for their health boards.

We may learn a bit more about plans for integrated commissioning at this level when we get the promised but overdue White Paper on integration. It is possible that it will set up a third set of geographies, and who knows how that will line up? This seems to be the wrong way around. Our amendments at least elevate the need to consult with local authorities over boundaries to start off with. That is perhaps a pious hope, but we can agree that any future changes can be made only if the local authorities agree.

Amendment 159 arises out of lengthy discussions elsewhere. In the twin-striker model for ICS, we have the ICBs and the ICPs. We know almost nothing about ICPs; all that is said is that it is part of the “flexibility” and so should be valued. Referring back to my previous remarks, I just hope that local authorities will be genuinely involved in the ongoing discussions about ICPs, how they are set up and their governance. What we do know is that the ICPs will own the analysis of needs and the strategy that follows from that. What, therefore, is the role of local health and well-being boards?

There are echoes of 2012 here, as, during the consideration of the 2012 Bill, amendments were advanced on the same issue. In the 2012 version, it was the health and well-being boards that did the strategy and the CCGs that did the commissioning, at least of health. Nobody ever properly addressed how social care would be commissioned in any integrated way in a wider strategy. It was proposed in 2012 that the health and well-being boards had to approve the plans of the CCGs, and that was the glue that would hold the whole thing together. We know that that has not worked. It has sometimes worked on paper, but it is not the thing that has driven the work of the CCGs.

The answer so far for 2022 is that everyone will play nicely and it will all be resolved. I do not think that can possibly be the case when there is such a serious imbalance. Our Amendment 159 acknowledges that there just might be a dispute over whether some decision or plan of an ICB was genuinely aligned to the strategy that it was supposed to be following, so a process for resolution is needed.

I am not sure whether Amendment 44 sits easily in this group, but it is a matter on which assurance is needed. When foundation trusts came into being, they were rather bravely given the power to set their own terms and conditions for staff. One of them might have tried it, and it was not a great success. In general, despite whatever powers exist, almost every part of the NHS follows the Agenda for Change, the collective agreement that took 10 years to agree but which has stood the tests of time.

Now, as with CCGs, we have the power of ICBs to set their own terms and conditions. They are probably unlikely to do so, as it takes an enormous amount of work and the risks that it brings are probably not worth the effort. Without doubt, some staff are worried that they just might be the ones picked on for special treatment. The Minister will no doubt say that the ICBs need the flexibility, but surely, given the pandemic and everything else that faces the NHS, it would be much better to give staff certainty and confidence they will be treated properly.

We agree with the sentiments of Amendments 22 and 24, which try to ensure that agreement on ICB constitutions will be done promptly. We agree with the sentiments of Amendment 53, which echoes a previous amendment about the need to drive improvement. In my noble friend’s Amendment 45, he asks a legitimate question, which I think the Minister will need to answer.

Once again, I thank all noble Lords for bringing this debate before the Committee today. There have been a wide range of views on the establishment of the ICSs and on what is currently going on in the NHS.

I will start with Amendments 22 and 24 from the noble Baroness, Lady Walmsley, which were supported very strongly by the noble Lord, Lord Hunt of King’s Heath, and on the ICBs’ establishment. I am grateful to the noble Baroness, Lady Walmsley, for bringing the amendments, and I understand her concerns about ensuring that ICBs are established in a timely way. We agree. We have had an interesting debate here. A number of people have said that it is really important, given that ICSs have already been established, that you put it on a statutory footing, but we are also being asked how they dare to go ahead and do this, because the legislation is not there yet.

In recognition of the fact that ICSs have been set up in some areas and are being established, we are trying to get the right balance. That is why work is under way to prepare existing organisations, including CCGs, for the transition once the Bill comes into force.

The noble Lord, Lord Hunt of Kings Heath, rightly asked whether NHS England is pre-empting Parliament. He raises an important point but I assure him that the powers necessary for establishing each ICB and publishing any statutory guidance cannot be made until the Bill has been enacted and the relevant provisions commenced. However, to ensure that ICBs are ready to begin work, NHS England is producing a range of draft guidance, including a model constitution, so that system partners can start work on preparations—but this does not have the power of statutory guidance. The guidance and the model constitution are based on the proposed requirements—

My Lords, I accept that but how can NHS England give guidance to say that no local authority councillor can be on the ICB? That is not for NHS England to say, and how can it do it prior to the Bill going through Parliament? It is for Parliament to decide these matters, not a quango.

I apologise to the noble Lord because I was coming to answer that point, but maybe in too long-winded a way. One issue that was clearly raised, and very strongly felt in the contributions from more than one noble Lord, was about banning councillors from sitting on boards. There is nothing in the Bill that expressly bans this. We recognise the points raised in this debate and will raise them directly with NHS England. It is not statutory guidance.

I am sorry but this is a very important point. They have made the appointments and are not going to start again, which of course they should, because this is an absolutely hopeless position. No one from NHS England has ever had the guts to come here to explain why they are making this decision, and who will believe it? The chair of the ICB is appointed by NHS England. They know that NHS England does not want local authority councillors on the boards. Who are they going to take notice of? They are going to take notice of NHS England. The Minister has to tell NHS England to stop sending out this ludicrous guidance and telling the NHS that the new arrangements will start from 1 July. It cannot possibly do so if we go through what is contained in Clause 14.

I sympathise with the noble Baroness, Lady Walmsley, but the fact is that we must have a three-month consultation process on the proposals. This is the problem we are in: none of this stands up because Parliament is being treated with absolute contempt by NHS England.

I hear the strength of feeling from the noble Lord. I will take this back to the department and discuss it with my right honourable friend the Secretary of State. I hope noble Lords are reassured by that. I may not get the perfect answer, but I will try. I understand the strength of feeling on this issue; no one can fail to do so. Let us put it this way: it was not subtle but direct. It is really important that, as the Minister here, I take this back and reflect the feeling of the House in my conversations with the Secretary of State, and his subsequent conversations with NHS England. I will take that back and look at the consultation process and the CCGs consulting all the relevant local authorities.

I understand the point made strongly by the noble Lord, Lord Scriven, that we have to be careful about prescribing in a top-down way how to work locally. I have always been a strong believer in localism and making sure that powers go down to a local level rather than being taken away. Let me again assure the noble Lords, Lord Scriven and Lord Hunt, and other noble Lords that I will take this back, because clearly there is concern. I had not appreciated the strength of that concern. At Second Reading the noble Lords, Lord Stevens and Lord Adebowale, said, “We are already doing this. It makes sense to go ahead and put it on a statutory footing”. But I have now heard the other side of the argument, and it suggests that I should go back and have a stronger conversation with, in effect, my boss—my right honourable friend the Secretary of State. I hope that gives some reassurance.

On Amendment 44, in the name of the noble Baroness, Lady Thornton, I assure your Lordships that we intend to provide as much stability of employment as possible while ICBs develop their new roles and functions. I hope that noble Lords are aware that there is already an existing commitment that staff transferring into ICBs will transfer across on their current terms and conditions in line with the NHS Terms and Conditions of Service Handbook. NHS pension rights will also be preserved. As a result, staff transferring into ICBs will not see any change to their existing conditions.

However, the Government are concerned about forcing ICBs to adopt conditions and practices that the ICBs do not believe work best for new staff. We believe that it is important to give ICBs flexibilities relating to staff terms and conditions; they are there for a reason. For example, when it is difficult to recruit and staff are going elsewhere, this would include allowing ICBs the flexibility to diverge from collectively agreed pay scales in order to attract staff from elsewhere or with unusual or valuable skills, or to reflect local circumstances. It will also give ICBs the flexibility to support joint working and bring in staff currently working in local authorities or foundation trusts, for example, supporting integration and the joint working approach that the Bill hopes to encourage.

I also note that ICBs having the independence and flexibility to choose whether to adopt collectively agreed pay conditions and pensions for new staff is not unique, as the noble Baroness, Lady Thornton, acknowledged. NHS foundation trusts, which are already free to exercise their discretion in adopting such conditions, overwhelmingly choose to honour and apply such terms to their staff unless there are good reasons to diverge.

On the proposals for very senior managers, existing procedures are in place to ensure that the most senior staff within the NHS are appointed with fair and equitable salaries. Proposals to pay very senior staff more than £150,000 must be similar to those for other equivalent roles or be subject to ministerial oversight.

The Government are in the process of finalising the procedures that will apply for ICBs. The specifics may differ but the effect and intention will be the same: to afford ICBs agency in setting pay at competitive rates so that we can continue to attract the most senior and experienced leaders, while putting adequate checks and balances in place to ensure appropriate use of taxpayers’ money and keep senior public sector salaries at an appropriate level. The Government believe that this amendment, which also asks for ICPs to approve annual salaries in excess of £161,000, is unnecessary. I am happy to have further conversations.

I now turn to the amendments on how the ICBs will function once established, starting with that in the name of the noble Lord, Lord Davies of Brixton, which relates to the question of treatment outside the ICB area. The new clause in question provides that NHS England must publish rules for determining the people for whom integrated care boards have responsibility. Importantly, this clause ensures that everyone in England is covered by an ICB.

We intend that the rules set by NHS England should replicate the current system for CCGs as closely as possible. This means that the ICB will be responsible for everyone who is provided with NHS primary medical services in the area—for example, anyone registered with a GP. It will also be responsible for those who are usually a resident in England and live in their area if they are not provided with NHS primary medical services in the area of another ICB.

It is important to remember that no one will be denied healthcare on the basis of where they live. We want to ensure that, under the new model, bodies that arrange NHS services—decision-making bodies—are required to protect, promote and facilitate the right of patients to make choices with respect to services or treatment. This means allowing patients to choose to be treated outside their ICB area. Choice is a long-standing right in the NHS and has been working well for some time. The Bill continues to protect and promote it. However, I am afraid that we have concerns about this amendment, as it places a requirement on providers rather than commissioners. It would not be reasonable to expect providers to provide services regardless of whether they were funded by an ICB to do so, and it is important that ICBs should be able to make decisions about with whom they contract and where they prioritise their resources.

On Amendment 53, in the name of the noble Baroness, Lady Walmsley, I hope I can assure the Committee that the Government are committed to ensuring continuous improvement in the quality of services provided to the public. As your Lordships will be aware, there is already a wider range of duties in relation to the continuous improvement of services. Clause 20 imposes on ICBs a duty as to the improvement in quality of services. Furthermore, the ICB must set out how it proposes to discharge that duty at the start of each year in its joint forward plan and explain how it discharged the duty at the end of each year in its annual report. I hope this goes some way to meeting the noble Baroness’s concerns.

Clause 16, which this amendment seeks to alter, recreates for ICBs the commissioning duties and powers currently conferred on CCGs in the NHS Act 2006. It ensures that ICBs have a legal duty to commission healthcare services for their population groups. It also recreates Section 3A of the 2006 Act, which provides the commissioning body with an additional power to commission supplementary healthcare services in addition to the services they are already required to commission. This power enables ICBs to arrange for the provision of discretionary services that may be appropriate to secure improvements in the health of the people for whom it is responsible—or improvements in the prevention, diagnosis and treatment of illness in those persons—so it is important that the clause remains as it is currently drafted.

The Bill will ensure that the existing local commissioning duties conferred by the NHS Act 2006 will transfer over to ICBs. This is set out in proposed new Section 3, which is also to be inserted by Clause 16 on page 13. I hope that the noble Baroness, Lady Walmsley, will be reassured that it rightly uses “must” rather than “may” when referring to the arranging of services. I can therefore assure the Committee that ICBs will continue to commission the services previously delivered by CCGs. That will ensure that service delivery for patients is not impacted.

Amendment 159 in the name of the noble Baroness, Lady Wheeler, touches on the important relationship between ICBs and ICPs. I remember that, when we had an earlier consultation, the Bill team had a diagram about how ICBs and ICPs would work together; It might be helpful if I ask for that to be sent to noble Lords so that all of us can have more informed conversations about the intentions of the amendments and the issues that noble Lords want to raise. I will make sure that that is done.

This amendment would add a requirement for the Secretary of State to make regulations to establish a dispute resolution procedure if an ICB fails to have regard to an assessment of needs, an integrated care strategy or a joint local health and well-being strategy in respect of the ICB’s area. The Bill was introduced to ensure that existing collaboration and partnership, working across the NHS, local authorities and other partners, is built on and strengthened; I recognise the concerns raised by the noble Lord, Lord Scriven.

We intend for these assessments and strategies to be a central part of the decision-making process of ICBs and local authorities. That is why we are extending an existing duty on ICBs and local authorities to have regard to relevant local assessments and strategies. The ICB and local authorities will be directly involved in the production of these strategies and assessments through their involvement with both the ICP and health and well-being boards at place—that is, at a more geographical level. As a result, they have a clear interest in the smooth working of the ICP.

More widely, there are several mechanisms to ensure that ICBs and local authorities will have regard and not intentionally disregard the assessments and strategies being developed at place in their areas. First, health and well-being boards have the right to be consulted.

I just had a flashback moment. I remember being asked, or volunteering, a decade ago to produce a chart of the various organisations under the 2012 Act. I think that the King’s Fund did a rather good job of doing it back then; perhaps it might do it again, although it will find that it is more complicated this time.

The noble Baroness, Lady Thornton, asked a perfectly reasonable question that might simplify the process. If health and well-being boards do the same job as integrated care partnerships, in large measure, why cannot integrated care partnerships and health and well-being boards be the same organisation?

I remember hearing in an earlier discussion on the Bill that nothing prevents that where they coincide. My noble friend and I have had conversations about health and well-being boards and where they sit. Given that, and given my noble friend’s experience of this issue, perhaps we could have a further conversation on this matter before the next stage to clarify some of the issues that he rightly raised in previous conversations.

At this moment, we believe there are mechanisms to ensure that ICBs and local authorities have regard to and do not disregard the assessments of the health and well-being boards. As my noble friend points out, that is for further conversations.

As noble Lords know, NHS England must also consult each health and well-being board on how the ICB has implemented its joint health and well-being strategies, so there is another level of reassurance there. The ICB must also include in its annual report a review of the steps it has taken to implement any relevant joint local health and well-being strategy and must consult the health and well-being board when undertaking that review. NHS England has formal powers of intervention if an ICB is not complying with its duty in any regard. That is sufficient to ensure that ICBs will have regard to both ICP and health and well-being board plans, but I understand the concerns raised.

Given the strong collaborative measures in the Bill and the strong foundations of collaboration and partnership working across the NHS—albeit despite the concerns raised by the noble Lords, Lord Hunt of Kings Heath and Lord Scriven—we do not think that further provisions are required. We would expect an ICP to resolve disagreements through discussion and joint working, but there is clearly some concern and I hear the Committee’s mood on this.

I hope that we can have further conversations. I will go back to my right honourable friend the Secretary of State for Health to raise the issue about NHS England effectively saying that local councils should not be on these bodies, as well as the other concerns raised about the health and well-being board. With that in mind and further conversations, I hope that noble Lords will feel able not to press their amendments.

Before the noble Baroness, Lady Walmsley, decides what she wishes to do with this amendment, I say to the Minister that this is very important; I cannot stress this enough. The noble Lord, Lord Lansley, and I are in agreement again about this. At the next stage of the Bill, the Government could find themselves in very serious trouble indeed if we do not resolve it between now and then.

My Lords, I appear to have opened a can of worms. I very much welcome the Minister’s commitment to go back to his boss and talk about some of the serious issues raised by noble Lords.

My purpose in introducing Amendments 22 and 24 was simply to ensure that once the Bill has passed through all its stages in Parliament and an implementation date has been reasonably proposed, from that point onwards there is reasonable coherence across the country so that there are no gaps in the proper commissioning of services and everybody gets on with it in a reasonably timely way.

However, noble Lords will remember that both at Second Reading and when I introduced this group of amendments I expressed my view that it is too soon, for a number of reasons—first of all, the state of the NHS. Also, as has been pointed out by me and other noble Lords, the Bill has not gone through Parliament yet. Last week noble Lords proposed a number of amendments about who should be on the ICB and what skill sets, knowledge and experience should be represented on it. It has become quite clear that, should this House decide to press those amendments, the shadow boards may have to look again at who they have appointed, because Parliament will have said that perhaps they need to appoint some more appropriate people to carry out the objectives that the Government have rightly laid down for them. It became clear to me that the three months I had suggested might not be quite enough, because of the consultation. It would not be the first time that noble Lords had laid amendments that were to some extent faulty but had stimulated an important discussion among other noble Lords.

I very much appreciate the Minister’s commitment to going back. I hope that, when he has those conversations, he remembers that noble Lords in this House are very supportive of the objectives of allowing local authorities to play their appropriate part in the establishment and running of these new boards, and allowing health and care people to work collaboratively in the interests of patients.

I want to say a brief word about Amendment 53. The Minister gave me several reassurances about where, in other parts of the Bill, there really is a duty to improve. I am afraid that he succeeded only in convincing me that changing “may” to “must” in the place I suggested in the Bill is totally consistent with what he says exists in other places, so I may come back to that at later stages.

Noble Lords will have their say about who should be on these ICBs. Things may have to change and appropriate time may need to be allowed for the now-appointed chairs of all the ICBs to make some corrective measures regarding who they have on their boards. I will leave all those thoughts with the Minister. For the moment, I would like to withdraw my amendment.

Amendment 22 withdrawn.

Amendments 23 and 24 not moved.

My Lords, we will start the next grouping now but we will stop at 2.15 pm. Anybody who is speaking three minutes before 2.15 pm should realise that they will have only three minutes before we stop, if the Committee sees what I mean.

Amendment 25

Moved by

25: Clause 14, page 11, line 20, at end insert—

“ NHS Appointments Commission (1) There is to be a body corporate known as the NHS Appointments Commission.(2) The NHS Appointments Commission has the function of—(a) appointing the Chair and ordinary members of integrated care boards;(b) other duties as set out in regulations under subsection (3).(3) The Secretary of State must by regulations provide for—(a) the establishment and constitution of the board of the Commission;(b) the financing of the Commission;(c) the duties of the Commission.(4) The Commission must prepare and submit an annual report of its activities to Parliament.”Member’s explanatory statement

The amendment would provide for an independent commission to have responsibility for the appointment of the chair and ordinary members of integrated care boards.

My Lords, in moving Amendment 25, I will speak to other amendments in this group, which follows on from the previous group and the last comments made by the noble Baroness, Lady Walmsley. On day two in Committee, we had an interesting discussion about the composition of integrated care boards. My noble friend Lady Thornton and other noble Lords argued for specifying in some detail the composition of ICBs, including having representation from mental health trusts, public health, staff and the patient’s voice.

Equally, the noble Lord, Lord Mawson, discussed the problems that arise when members on committees are seen to represent what he called “other agendas”. The noble Baroness, Lady Harding, was supportive of that view, although she argued that

“we should think more about what we want the integrated care boards to do”.—[Official Report, 13/1/22; col. 1303.]

and how we will measure this, rather than exactly who is on them. I see the force of that argument; I for one am pretty uncertain about what exactly these integrated care boards are all about.

The noble Lord, Lord Hunt of Wirral, went to the heart of this when he raised an issue that has troubled me right from the beginning: the provision that NHS trusts and foundation trusts are to be members of the integrated care boards. As he said:

“Organisations that provide the bulk of NHS services”

are therefore brought into the work of commissioning. The current system is one where commissioners—CCGs—hold providers to account

“objectively determining whether they are best placed to provide a service and assessing their performance”

and, as he said, the question then arises as to how the new integrated care boards can

“continue to perform that role.”

He felt that the membership of provider appointees on those boards at least created a risk of

“a conflict of interest between the roles of those individuals on the board and any roles they may hold with provider organisations”.—[Official Report, 13/1/22; col. 1297.]

In response, the Minister said that

“each ICB must make arrangements on managing the conflict of interest and potential conflicts of interest, such that they do not and do not appear to affect the integrity of the board’s decision-making processes. Furthermore”—

this is a very relevant point—

“each appointee to the ICB is expected to act in the interests of the ICB. They are not delegates of their organisations, but are there to contribute their experience and expertise for the effective running of the ICB”.—[Official Report, 13/1/22; col. 1308.]

Up to a point, Lord Copper. I am now totally confused as to what ICBs are. I must admit that I thought that reason for having all the key local players around the table was to brokerage deals, sort out the flows of money and keep the show on the road, but the Minister’s vision seems to be for a rather more rarefied forum, where members of the ICBs have to leave their interests behind them and think Olympian thoughts in the interests of the greater good. However, when you think of an ICB, with members of a major trust sitting around the table, and local authorities represented not by their political leadership but by officers, how on earth can they leave their principal interests behind them? Surely the responsibility of the CEO of a trust or presumably of a local authority or the director of adult social care is to represent the interests of the organisations on that board.

I will give a couple of examples. On page 21, the Bill states in relation to new Section 14Z50 on the joint forward plans for an integrated care board and its partners that

“an integrated care board and its partner NHS trusts and NHS foundation trusts must prepare a plan setting out how they propose to exercise their functions in the next five years.”

That is fine, because that is probably one of the most important things that they have to do, but what are the trusts’ chief executives on the ICB expected to do? Are they expected to sit there and declare that it is a conflict of interests and therefore take no part in the discussion, or are they there to represent the interests of their trust, because the forward plan is very important to the success or otherwise of their organisation? It would be the same with the local authority representative, even though that representative, because they are an officer, will have to report back all the time to their political leaders to get the green light to what they have to agree to within the ICB board, which is why it is so stupid to keep local authority councillors off that board.

The Minister says, “Oh well, if it all goes wrong, we can use regulation powers to put it right”. But we are at the beginning of this process, and we need to get it right now. I very much ask the Minister to think again about the structure of ICBs and how on earth you can expect them to operate if the large trusts that they are supposed to commission serve round the table. It is really a nonsense in governance terms. Only NHS managers could have come up with this—and, oh dear, it was NHS managers who came up with it. Much though I love them and have represented their interests, I agree with the noble Lord, Lord Scriven, that accountability and democracy do not come very easily to them, and you can see that in the complete mess that we see before us today.

We then come to the question of whether these ICBs are accountable at all locally. I see no evidence of that at all; they are clearly part of a top-down managed hierarchy. How can you explain the reasons for the chair being appointed by NHS England and not by the board itself? How can the chair be removed from office only by NHS England? The chair should hold office at the confidence of the board. It should be the board that decides whether the chair is competent to continue, subject to external regulatory interventions, as of now, where that is necessary.

Secondly, why does the appointment of the ICB members have to be approved by the ICB chair? I am sorry that the noble Lord, Lord Scriven, is not here. If I, as leader of Birmingham City Council, for instance, decided that my director of adult social care should go on to the board of the Birmingham and Solihull ICB, what right does the chair have to give their approval or not to that appointment?

We have already discussed the nonsense of local authority councillors being left off, but let me just make one other point. If you were the chief executive of the local authority appointed to an ICB, where you are making big decisions about finance, does the Minister imagine that that officer will do it off their own bat, or does he think that every step of the way they will report back to the leader of the council and the cabinet member for social care? Of course they will.

The problem is that NHS managers think local government is run in the way the NHS is run; they think the officers are in charge. But they are not, because you have political, democratic leadership. It is the same with Ministers in government, which it seems is why they have got themselves into such a mess in relation to this governance.

The ICB does not even appoint its own chief executive officer. The CEO is appointed by the chair, with the approval of our old friends NHS England. Again, why? Surely, the chief executive should be appointed by the board of the ICB through a proper appointments process. What we can see is, first, that these ICBs will basically be the tools of NHS England, because the chair and the chief executive officer owe their continued existence to that quango. Secondly, we see that they have built a huge conflict of interest into the structure.

When taking evidence last year, the Health and Care Select Committee concluded that it was

“vital that local populations have confidence in the boards of the NHS Body … and transparency in the appointment process for those boards will be a key factor”.

I agree. The argument I put forward, particularly in my first amendment, is that there must be some independent process or scrutiny of the appointments of ICBs. When the composition of NHS England was debated on the first day in Committee, the noble Earl, Lord Howe, said he agreed that

“robust governance arrangements are absolutely necessary to oversee public appointments, particularly to NHS England”.—[Official Report, 11/1/22; col. 987.]

He then qualified it by saying that it did not apply to ICB boards. He was absolutely right, because the one thing they do not have is a robust independent appointments process. I put this point to the Committee: why can we not put a proper appointments process in? Why do we not resurrect an independent NHS Appointments Commission to do the job properly, make sure that the governance arrangements are fit for purpose, and ensure there is much more local confidence in these ICBs and what they are there to do?

The board should appoint the chair; the chair and the board should appoint the chief executive officer. They should stay in those positions at the disposal of the boards, and those members should be appointed through an independent process which should include local authority councillors nominated by the principal local authorities within the ICB board region. ICBs cannot be expected to carry any weight locally, given the way they have been constructed at the moment.

I urge the Government to think again about this. They may want to push on and have it accepted with a fait accompli but, in the end, it is their decision in Parliament as to how these bodies operate. Unless we do this, it is pretty clear that we will be coming back within the next year or two with another NHS restructuring Bill. We have already heard about the ludicrous decision to keep health and well-being boards at the same time as having ICBs. We all know that, looking at it, this structure will not keep. It would be better if the Government started to sort it out now. I beg to move.

My Lords, I rise only to say that I agree with my noble friend Lord Hunt. I will speak very briefly to Amendment 24 in the name of my noble friend Lady Merron, which would ensure the involvement of the integrated care board and the integrated care partnership in the appointment of the ICB chief executive. That seems to me to be sensible.

My Lords, I support that. I am glad that the noble Baroness, Lady Thornton, introduced Amendment 34. According to the Bill as it stands, the chief executive of the ICB could be appointed only by the chair—of course with the approval of NHS England. Like many of your Lordships, I have been on a board, including being the chair of a board, and as such, I always thought it good practice to appoint my chief executive with the help and approval of my board members. As an ordinary member of a board, I cannot imagine how I would have managed the relationship with a chief executive officer who had been appointed over my head only by the chair without any consultation with me or other members. If we want to encourage collaboration, that is not the way to do it at board level.

It is inconceivable that the mechanism would work in practice in such a situation. Indeed, it is vital that all the senior people who steer the ICS, the members of the ICB, and indeed the chair and members of the ICP, must have confidence in the chief executive; the word “confidence” was so appropriately used by the noble Lord, Lord Hunt of Kings Heath. How could that be if they had no involvement whatever in the appointment? It is a simple matter of good practice and I shall be very interested to hear what the Minister can possibly find to say against it.

My Lords, I know we have 10 minutes to go, but perhaps it makes sense to stop now in case noble Lords want to interject during the Minister’s speech.

Debate on Amendment 25 adjourned. House resumed.

Sitting suspended

EU-UK Partnership Council

Question

Asked by

To ask Her Majesty’s Government what will be on the agenda for the next meeting of the EU-UK Partnership Council, and when will that meeting take place.

My Lords, the date for the second meeting of the Partnership Council has yet to be confirmed. The first Partnership Council met on 9 June last year; it marked an important milestone in standing up the trade and co-operation agreement governance structures. The agenda for the next meeting will be agreed with our EU counterparts. We will push hard to ensure that priority issues for the UK are discussed and our interests are protected.

If this means that the Minister has replaced the noble Lord, Lord Frost, I welcome him to his new position; he is saying, “No fear”, so I thank him at least for answering the Question today. As we have passed the authority in both Houses to establish the Parliamentary Partnership Assembly, the membership of which is due to be announced very shortly, can he give us an undertaking that our Foreign Secretary, as co-chair of the Partnership Council, will report both before and after meetings of the council to the newly established Parliamentary Partnership Assembly?

I will certainly convey the noble Baroness’s message to the Foreign Secretary; I cannot make an undertaking on her behalf, but it certainly seems in the spirit of the approach she has taken of involving both Houses and maximum transparency.

My Lords, technically the Parliamentary Partnership Assembly will cover only the trade and co-operation agreement, yet some of the key issues between the UK and the EU are within the withdrawal agreement—not least Northern Ireland and, most importantly to MPs and Members of this House, UK and EU citizens’ rights. Will the Government sympathetically support the assembly extending its remit to the withdrawal agreement and those key areas?

My Lords, our relationship with the European Union hinges in many respects on issues yet to be resolved. The noble Lord mentioned two of them. Resolving issues around the Northern Ireland border is an absolute priority for the Government; likewise, issues around friction-free visa travel within the European Union and changes to border requirements are high on the agenda. His priorities are very much in sync with those of the Foreign Secretary.

My Lords, does the Minister agree that the experience of the first year of operation of this council has shown that the very passive and rather negative approach to it—doing the least possible and having only the one statutory meeting required—has not so far delivered any very useful outcomes? Would it not be better if the new British chair of the council showed a more proactive policy towards it and, when items are to come up on the Partnership Council, started to shape up what decisions that might come out of it would be to our benefit?

My Lords, I am not sure I agree that we have taken an insufficiently proactive approach, but I certainly think the new Foreign Secretary has brought a particular level of energy to the task. The first meeting last year saw frank but constructive discussions on the TCA implementation; yes, a number of areas of disagreement were identified, but the process launched the governance and committee structures of the TCA and our commitment to dialogue and co-operation. I think it achieved the first goals that were set out.

My Lords, will my noble friend take this opportunity to update the House on meetings of specialist committees between the UK and the EU, particularly in areas such as fisheries, which are so key to our ongoing and future relationship with the EU in these policy areas?

I will try in due course to provide answers relating to other specialist committees, as the noble Baroness mentioned, but on fishing licences our approach has been and remains fully in line with our TCA obligations. We have said throughout the process that we have issued licences where we have received evidence of an entitlement. It is worth pointing out that the UK has issued over 1,800 licences to EU vessels seeking to fish in our waters.

My Lords, at the meeting of the Partnership Council on 9 June, sanitary and phytosanitary measures were discussed. Can the Minister confirm whether the Government intend to seek what is often called a veterinary agreement and whether there is any progress on that?

I am not able to give the noble Baroness any kind of detailed update on those discussions. I do not believe there is an update to provide, other than that those discussions continue. If there is more to provide, I will do so in writing.

My Lords, on 16 December, in answer to a question from my noble friend Lord Hannay, the noble Lord, Lord Frost, indicated that performing artists would be discussed at the next meeting. Little has been done to resolve the huge concerns of musicians touring in Europe; cabotage, for instance, has to be discussed at the TCA level. Will this be put on the agenda?

My Lords, the Government are committed to supporting the music sector to adapt to our new arrangements. We worked with DCMS to speak to EU member states about the importance of touring; 21 of them have confirmed that they offer visa and work permit-free routes for performers and other creative professionals. This includes most of the biggest touring markets, including Spain, France, Germany and the Netherlands.

My Lords, before we left Euratom, EU representatives used to carry out external checks on the way in which we monitored emissions from UK nuclear sites. That no longer happens. It has not been replaced by another system. Can the Minister say, or find out, when the Partnership Council will discuss our post-Euratom radioactive substances status, an important policy area which intersects, as he will know, with the trade and co-operation agreement?

My Lords, much of the work the noble Baroness describes was conducted on the back of UK experience and expertise, neither of which have gone. On the precise relationship we will have with Euratom going forward, those discussions continue but I will see whether I can provide more of an update to her in due course.

My Lords, Paul Johnson of the Institute for Fiscal Studies recently highlighted that trade with the EU has declined sharply since 2019. Based on OBR figures, the prediction is that this reduction in trade post Brexit will reduce productivity in this country by 4%. What action will the Government take to address this? Will they finally admit that the promised benefits of the UK leaving the single market have not been realised?

My Lords, a number of factors—not least a Covid lockdown across Europe and businesses adjusting to our new trading relationship—have made inevitable the dip in exports to the EU that the noble Baroness describes. However, the Office for National Statistics has cautioned that it is impossible to identify the underlying causes, at least at this point, and that we should be careful not to extrapolate. In answer to the second part of her question, I say that the Department for International Trade will continue to work with businesses and business groups across all sectors and the whole country to make the export support service work as well as possible for businesses. As we set out in the 2025 UK Border Strategy, our ambition is to create the most effective border in the world.

Will my noble friend use the next meeting of the Partnership Council to point out to the European Union that Northern Ireland is now the only part of Europe in which laws are made for its people without any democratic mandate or input from them and that this situation is incompatible with its own EU Charter of Fundamental Rights?

My noble friend makes a hugely important point. I reiterate that our overall aim is to renegotiate the Northern Ireland protocol to resolve the undoubtedly significant issues that people in businesses in Northern Ireland face daily. The EU has recognised that the current arrangements do not work. Any solution must be underpinned by the commitments made in the Good Friday agreement.

My Lords, how will Her Majesty’s Government judge the success of this partnership and whether it is worth continuing in the future?

My Lords, it is hard to know how effective the partnership is, given that we have only had one of those meetings. We have another meeting at some point this year. It has not been scheduled yet, but we certainly expect it to happen. It would be easier to answer that question on the back of the results of that meeting.

Peat

Question

Asked by

To ask Her Majesty’s Government what plans they have to undertake further consultation on the professional use of peat.

My Lords, we are currently consulting on measures to end the use of peat in horticulture in England and Wales. This includes a call for evidence on the impacts of ending the use of peat and peat-containing products in the professional horticulture sector. The consultation closes on 18 March this year. Our assessment of the responses and the evidence that we receive will inform our next steps, which will include targeted engagement with specialised areas within the sector.

I was frightened that that would be the Answer. Environmentalists are sick of all these consultations. The Government promised to ban peat in 2020, and there were years to achieve that then. In the interests of moving on, I suggest two things: first, that imports of professional peat be stopped, because when we stop selling it here it will just get imported. Therefore, this is a primary thing to do. Secondly, we must replace peat with something, and we could use green waste from councils, for example. Can the Minister take that back to his department and make them think about it?

My Lords, I will certainly take both those suggestions back to the department. The point the noble Baroness makes about imports is a good one; I will have that discussion with the Secretary of State. She is not the only person who is sick of endless consultations but unfortunately, they are unavoidable when the impact of a policy affects the value of a business or of assets. We have no choice but to consult, but we are doing so as quickly as we can.

My Lords, with apologies for jumping in too soon, the main concern of those who use peat professionally is finding alternatives of sufficient quality and quantity. This is not easily solved, even by just using green waste. Can my noble friend ensure that very real research is done by his department into a cure for this problem?

My noble friend raises an important point, and she is right that there are insufficient amounts of suitable replacement materials. However, there is clearly scope for making better use of what is otherwise garden and vegetable waste. There are high-quality peat-free alternatives that are effective and price-competitive, including a growing material formulated with wood fibre, bark or coir, all currently available in garden centres.

My Lords, as the Minister knows, 3% of the earth is covered with peatlands, but they account for a third of the store of carbon. It is imperative that this carbon is not disturbed. We have a huge amount here in the United Kingdom. Can the Government commit to reducing to a minimum the amount of carbon from peat bogs?

My Lords, I absolutely make that commitment, and that is one reason why we are moving with renewed vigour on banning the use of peat in horticulture. Additionally, our England peat strategy lays out ambitious plans to restore degraded peatlands on a scale we have not done before in this country, with plans leading up to 2050 involving hundreds of thousands of hectares being repaired, for all the reasons that the noble Lord has identified.

My Lords, the Minister may be aware that DAERA has undertaken a consultation on the peatland strategy for Northern Ireland. While peatlands cover 11% of England’s land area, 24.6% of Northern Ireland is covered by peat. Is there scope for Defra to play an active part in the formulation of this strategy to ensure that it delivers the very best results for Northern Ireland and its ecosystem?

The peat strategy we have produced is an England peat strategy, so clearly, there are geographical limits. However, the issue goes far beyond England: it is a UK issue, for the reasons the noble Lord has provided. Peatlands are iconic features of our landscape. They are the UK’s largest stores of carbon by far, and they provide hugely important ecosystem services, supply over a quarter of the UK’s drinking water, decrease flood risk and provide food and shelter for rare and, in some cases, endangered wildlife. That is why peat recovery and peat protection is a priority.

My Lords, it is the turn of the Liberal Democrats. The noble Lord, Lord Jones of Cheltenham, wishes to speak virtually and this is a convenient point to call him.

My Lords, the UK’s peatlands are of immeasurable importance, storing three billion tonnes of carbon—as much as the forests of the UK, Germany and France combined. What discussions have the Government had with other countries about stopping the extraction of peat, and was any progress made at the recent COP 26?

My Lords, an enormous amount of progress was made at COP 26. The story that made the headlines related to forests but the principles that were agreed around the protection of forests apply also to peatlands. Between us, we secured unprecedented sums—billions of dollars of finance—specifically to protect fragile, carbon-rich, biodiverse-rich ecosystems such as peatlands. Part of the agreement we reached involved commitments by countries with those precious habitats to end their destruction and to engage in restoration with renewed vigour.

My Lords, the Minister has already referred to the need to protect peatlands as an example of our iconic landscapes; they are a feature of these islands. Considering that the devolved Administrations are involved in this work as well, as a follow-on to COP 26 and as a means of protecting our landscapes, can he give due consideration to leading a summit with his ministerial colleagues and those involved in environmental organisations on how to protect our precious peatlands the length and breadth of the United Kingdom?

I am very happy to make that commitment on behalf of my colleagues in whose portfolio and remit this issue sits. From an international perspective, the noble Baroness makes a very important point. We are designing programmes on the back of the new commitments we have made using our ODA; £3 billion of our international climate finance commitment will be invested in nature-based solutions, a very big part of which will be peatlands. I hope that we can describe in more detail soon what those projects will involve.

My Lords, in a Written Answer to me, the Minister stated that all government departments and their arms-length organisations should meet the mandatory government buying standards, which include not purchasing peat. Can he confirm that all government departments are indeed abiding by that ruling, and explain why organisations such as the Forestry Commission are still purchasing and using peat when, as we have heard, other alternatives are available?

The noble Baroness is right: Forestry England continues to use peat in the manner she has described. However, it has committed to eliminating completely the use of peat in the growing media by 2028 at the very latest. All government departments and their related organisations must ensure that they meet the minimum mandatory government buying standards when buying goods and services. We also encourage the wider public sector to do likewise, but it is certainly our intention to accelerate the progress that is and being and needs to be made.

I am not convinced that peat as a fuel does fit into this picture. Our priority is to restore peatlands as closely as possible to their natural conditions, so they can fulfil the ecological functions we need them to fulfil.

My Lords, I am interested to understand how the Government reconcile allowing commercial peat exploitation while at the same time the Exchequer, and thus taxpayers, are paying millions of pounds for peatland restoration.

I am afraid I cannot provide that justification because there is a clear contradiction, but that is why we are pushing ahead with our proposals and measures to eliminate the use of peat in horticulture. The noble Lord makes a very good point.

My Lords, does my noble friend share my concern that, since we have left the European Union, we will now have different environmental standards in England, Wales, Northern Ireland and Scotland? Will he use his good offices to ensure that the devolved nations all impose a ban on the use of peat for horticultural purposes, bearing in mind that it takes 200 years to create a peat bog?

My Lords, it is not a source of concern that we are able to legislate or regulate differently; the UK has demonstrated a commitment to raising the bar in terms of environmental protections. It is generally recognised—if not in this country then certainly elsewhere—that the UK is a world leader in conservation and nature restoration, but it is for the devolved Administrations to make their own policies and, of course, we will continue our discussions in the hope that we are as closely aligned as possible.

State Pension Age

Question

Asked by

To ask Her Majesty’s Government what consideration they will give to the latest Office for National Statistics’ projections for (1) life expectancy, and (2) healthy life expectancy, when reviewing the state pension age.

The department launched the second review on state pension age in December 2021. It must be published by May 2023, in accordance with Section 27 of the Pensions Act 2014. The review will be informed by two independent reports and will consider a wide range of evidence. This will include consideration of the latest Office for National Statistics projections for life expectancy and healthy life expectancy. Tempting though it is, we must wait for the report to come out before we comment.

I thank the Minister for that response and the point she makes that the ONS projections seem to confirm that life expectancy is no longer increasing. As it is, the people most dependent on a state pension are more likely to have a shorter life expectancy than those with additional pension provision. Many will die before they reach retirement age or will receive their state pension for only a few years. Does the Minister accept that a fair pension scheme must take account of the life expectancy and healthy life expectancy of people in deprived areas—not just a broad average across the board? Can she assure us that the Government’s review of the state pension age will take that into account?

The noble Baroness makes a number of important points. We want a fair pension system, and her points about life expectancy, particularly in some of the poorer areas of the country, are valid. On the review, I know that my noble friend Lady Neville-Rolfe will want input from Members of this House who are concerned and who have expertise, and I encourage the noble Baroness to make sure that those points are made to my noble friend when she carries out her review.

Has my noble friend considered the conclusion of the Office for National Statistics that:

“Over a 20-year period the estimated change in deaths associated with warm or cold temperature was a net decrease of 555,103 … A decrease in deaths from outcomes associated with cold temperature greatly outnumbers deaths associated with warm temperature”?

Is it not good news that climate change has prolonged or saved the lives of more than half a million of our fellow citizens—

—a laughable matter to the Liberal Benches over there—and how long does she expect this beneficial effect to continue?

My noble friend has again given us some interesting facts and data. I am afraid that the impact of climate change is way outside my brief, but I am sure everybody notes the points made.

My Lords, the Minister quite rightly referred to the ongoing reviews, but I simply ask, as a matter of logic, that, if the policy is that because people are living longer, retirement age should increase, is it not the necessary corollary that if people are not living as long as previously expected, retirement age should not be increased in the same way?

I will not argue with logic; that would not get me anywhere. On the noble Lord’s point about the state pension age, I know that people are sceptical of government reviews, but I ask all noble Lords to approach it in a positive way, make their points—particularly the one raised by the noble Lord—and get them into the review.

My Lords, around 1.5 million low-paid workers pay a 25% penalty for their pension savings. When will the Government publish the outcome of their call for evidence on pensions tax administration to enable low-paid workers, who are typically women, to receive pensions tax relief on their contributions?

Many noble Lords have made this point, including the noble Baroness, Lady Drake, and my noble friend Lady Altmann. The truth is that I do not know when they will do it, but I will go back and find out, and will write to the noble Baroness.

My Lords, women are disproportionately affected by pensioner poverty. What are the Government doing to support and help them?

Since 1994-95, rates of female pensioners in poverty, by all measures, have fallen by a larger amount than rates of male pensioners in poverty over the same period. The proportion of pensioners in absolute poverty, after housing costs, has halved since 2002-03. Pension credit is the safety net—I know that will open the floodgates for a raft of other questions—and we must make sure that as many people as possible apply for that benefit.

My Lords, I cannot let that go: relative poverty among pensioners is on the rise again, having fallen considerably for years. However, controversially, I will come back to the Question. The latest ONS tables show that life expectancy at birth in the UK is 79 for men and 83 for women. But life expectancy is lower in Wales and Northern Ireland, and especially Scotland, than it is in England. What are the Government doing to engage with the devolved Administrations, and how might pension policy take account of that?

I hope that, during the review, the devolved Administrations will be consulted. I will certainly go back to the department and speak to the Secretary of State to make sure that that is included in the review. The review will then report, and the noble Baroness will get the answers that she is looking for.

My Lords, I am delighted that my noble friend Lady Neville-Rolfe will be leading an independent inquiry. Can my noble friend the Minister assure the House that some flexibility in state pension age will be considered for those who are not healthy and wealthy enough to wait for the ever-rising state pension age? With a significant, 20-year difference in healthy life expectancy across the country, perhaps very long national insurance records might be considered for early access to the state pension.

As I have said many times, I cannot give any guarantees, but I am absolutely sure that the points my noble friend raises about flexibility and age will be included in the review. I urge her to take part in that consultation.

My Lords, poorer people tend to die at a younger age than richer people. Each increase in the state pension age effectively results in a wealth transfer from the poor to the rich, who will receive the pension for many more years. Can the Minister tell the House why the Government have pursued pension policies that penalise the poor and transfer wealth to the rich? Why this reverse socialism for the rich?

I doubt I will be able to convince the noble Lord, but nobody wants pensioners to be in poverty and nobody wants to run a book on transferring wealth from one place to the other. The noble Lord raises a valid point. I know I am repeating myself, but it is one that I expect will be in the review; knowing how much knowledge the noble Lord has, especially on how to pay for these things, I look for him to have input into the review.

My Lords, in the last two years, life expectancy has been below the expectancy of the industry. If that continues to be the case, does it mean that slight pension increases could be afforded?

I imagine that, if things go as my noble friend has just said, that is a possibility, but I am not able to confirm it. Again, I urge my noble friend, who has a raft of experience in this field, to get his point into the review.

I am grateful to the noble Lord and declare my interests as set out in the register. Referring to the points made by the noble Lord, Lord Lilley, does the Minister agree that the interaction between health and climate change really warrants a more sophisticated analysis of all the factors involved, rather than the assertions made by the noble Lord in his intervention?

I can assure the House that my noble friend Lady Neville-Rolfe will pay due attention to the seriousness of the interaction between the points the noble Baroness has raised. I have no doubt that will happen.

Enforcement of Lockdown Regulations

Question

Asked by

To ask Her Majesty’s Government what assessment they have made of the equality of treatment between different groups in respect of the enforcement of lockdown regulations by the police since spring 2020.

My Lords, we are clear that nobody should ever be subject to police enforcement based on their race, gender, ethnicity, age or any other protected characteristic. That is why the NPCC—the National Police Chiefs’ Council—has commissioned an independent analysis of fixed penalty notices issued to different demographic groups during the pandemic. The findings from this analysis will be published in due course.

I am grateful to the Minister for that, particularly after such a long night. Broad police powers, however well-intended, will inevitably lead to arbitrary and discriminatory enforcement. She makes the point about racial bias and I look forward to the fuller picture. Have the Government now gathered more complete data on differentials in enforcement of lockdown regulations? How much was directed at, say, small family picnics or peaceful protests, as opposed to unsafe places of work?

As I said to the noble Baroness in my first Answer, there is going to be more analysis of FPNs issued to different demographic groups. The outcome will be very interesting in all sorts of contexts—social and otherwise. Like her, I look forward to the findings from the analysis. In parallel to that, the HAC has published its report, The Macpherson Report: Twenty-two Years On, which raised the same concerns over disproportionality of FPNs.

My Lords, when the Prime Minister was holding a series of parties in No. 10, what were the police doing to enforce regulations?

My Lords, the ONS has recently published data that shows, after adjusting for age, that men and women of black ethnicity are four times as likely to die from Covid as people of white ethnicity. What steps are the Government taking to identify and then eliminate the causes of this very worrying disparity?

My Lords, my noble friend asks a pertinent question—that there is a disparity is not disputed. I know that the Ethnicity Subgroup of SAGE has done some work on this, both the year before last and last year. Factors include people’s jobs, and therefore their exposure to risk; household circumstances, such as more people in the house interacting; and financial difficulty in isolating. Vaccine hesitancy is an undoubted factor. The Government are giving financial help with things such as Covid support payments, but I think there is more to be gleaned. On people’s responses to Covid, maybe there is something in the physiology or make-up of different types of people—such as the cytokine storms that we talk about and inflammatory responses—that make them susceptible to more serious illness. I think some of that is yet to be uncovered.

My Lords, the sad thing is that any new regulations tend to have more impact on the black community. How will the Government make sure that equality means equality for all groups?

My Lords, the Government are obliged, when they do anything, to make sure that there is not a disproportionate effect on different communities. That requirement is placed on them under the public sector equality duties set out in Section 149 of the Equality Act and covers decisions with respect to the Government’s response to Covid-19.

My Lords, I think the whole House is relieved that the noble Baroness has not been present at No. 10 parties, but it is not a general rule that Ministers can answer questions only about events at which they were present. I wonder if she might possibly write to the noble Lord, Lord Watts.

I think I answered the noble Lord’s question. I was not there; I was not witness to any events that may or may not have happened. As the noble Lord will know—and yes, I do speak for the Government—Sue Gray is doing her review, and the outcome of that will be known in due course.

My Lords, on this very point, the question did not require the Minister to have been present to be able to answer it. The question that troubles some people is that the Metropolitan Police has already publicly said that it will not investigate anything but will wait to hear what Sue Gray says and that it is in contact with Sue Gray. The Metropolitan Police has police officers in Downing Street, both inside the building and outside. Surely it is legitimate to ask: are statements being taken from those officers by Sue Gray, and is the Metropolitan Police offering them to Sue Gray’s investigation, seeing as it is not investigating this itself?

The noble Lord asks a perfectly legitimate question. To that I would say that the police are operationally independent of government, but the review and the investigation will take their course.

Do the Government currently believe that there has been equality of treatment between different groups in respect of the enforcement of lockdown regulations by the police since spring 2020? If the Government do not believe that that has been the case, what action are they taking now to address that point?

As I said to noble Lords, there clearly has been a disparity, with BAME people more likely to have fixed penalty notices issued to them. As I said, the NPCC is going to analyse that in more depth, and will report in due course.

My Lords, given the differences in health status among the different minority groups in the country, with those in the most deprived areas staying healthy only into their early 50s while those in the wealthiest areas stay healthy until around the age of 70, will any assessment be made of the impact on those required to go out to work—to defy lockdown, perhaps—or to find other sources of support if, for example, they were lacking a private pension to tide them over to the ever-rising state pension age, which we were talking about in the previous Question? Lockdowns impose much more hardship on those in poor health, who have much lower resources. I would be grateful if my noble friend could write if she does not have the answer.

I might have part of an answer, which I addressed in an earlier question. I do not think there is any doubt that nervousness in isolating because of financial circumstances was both anecdotally a factor and found to be a factor in people not wanting to isolate because they needed the money. I talked about Covid support payments, but I am looking now to my noble friend Lady Stedman-Scott. I admire my noble friend Lady Altmann for linking the previous Question to this one, but I am sure that my noble friend Lady Stedman-Scott will be able to answer in more detail in due course.

Elections Bill

First Reading

The Bill was brought from the Commons, read a first time and ordered to be printed.

Underpayment of Benefits: Compensation

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Thursday 13 January.

“I would like to start by extending an apology to Ms U for the experiences that have been highlighted in the Parliamentary and Health Service Ombudsman’s report. The department will, of course, formally apologise and make additional payments now that the PHSO report has been published.

I should remind the House that the employment support allowance was introduced in 2008, and from March 2011 the department began reassessing people on incapacity benefits for eligibility for ESA, which saw some claimants underpaid. The department’s priority was that all people get the financial support to which they are entitled. It undertook a special exercise to review all cases that were potentially affected and paid arrears where due. We realised how important it was to get this matter fixed and ensure that people get the benefits that they are owed as quickly as possible. We therefore set up a dedicated team, with up to 1,200 staff at the peak of the workload. This has enabled us to complete this important work at pace.

I remind the House that the exercise to correct past ESA payments and pay arrears, following conversion from the previous incapacity benefits, was completed last year, and the then Minister for Disabled People, Health and Work, my honourable friend the Member for North Swindon (Justin Tomlinson), made a Statement to the House in July 2021. All cases have been considered and reviews completed, where the information has been provided, and arrears due were paid. As of 1 June 2021, we have reviewed approximately 600,000 cases and made 118,000 arrears payments to those who are eligible, totalling £613 million. The department published an update on the exercise last Thursday on GOV.UK, which sets out further detail on the progress that it has made on processing the cases.”

My Lords, a vulnerable person with multiple health needs recovering from a heart bypass was left for years living on half the money she was entitled to when the DWP moved her on to ESA, which also stopped her getting free prescriptions and other passported benefits. The ombudsman looked into her case and reported that Ms U, as she is known, could not afford to eat properly or heat her home, and that:

“Her mental and physical health declined drastically”.

Over 118,000 other people were similarly affected. The DWP eventually paid arrears but is refusing to pay compensation. The ombudsman recommended it paid compensation

“in recognition of its error and the potentially devastating impact it has had on people’s lives.”

When this matter was debated in the Commons last week, the Minister in the other place said that the Government had published the previous Thursday an update of these cases on GOV.UK. I have searched GOV.UK, as has the Library, and have found no such documentation, so I am dependent on the Minister to answer these two questions. First, can she say whether the DWP has now complied fully with the ombudsman’s recommendation to pay Ms U £7,500 in compensation and interest on her £19,832 of arrears? Secondly, will the Government also follow the ombudsman’s recommendation to provide remedies to the others who have suffered injustice or hardship as a result of the same maladministration?

I will go back to the department and check the first point that the noble Baroness raised. This situation is appalling and awful, and I apologise to all those affected on behalf of the Government and the department. I can confirm that Ms U has had a £7,500 compensation payment and a further payment of interest on the benefit arrears payment of £19,832. There is little more that I can say about her, other than that we have complied completely with the PHSO’s point.

On others affected—and I understand the depth of feeling on this—the department has a discretionary scheme that allows special payments to be made to customers to address any hardship or injustice caused by DWP maladministration. Consistent with other large-scale LEAP exercises, special payments under the DWP discretionary scheme will not routinely be made. There is no legal requirement to make special payments as the scheme is discretionary. However, as the Minister for Welfare Delivery said in the other place on Thursday, if anybody believes that they are a special case, they are quite free to make representation to the department.

My Lords, as has already been said, this woman has suffered appallingly through maladministration. The Minister did not really address the point about compensation, which the ombudsman’s report specifically asked the DWP to reconsider. Would she look at that again and perhaps come back to us on it? The report also points out that the DWP has put aside its own guidance in the remedy it is offering—so it does seem that the DWP needs to look at this report again.

The noble Baroness, Lady Sherlock, mentioned the very many others affected by these circumstances. Mention was made in the other place of the DWP not having had time to consider this report fully. Will the Minister take back the points we have made here and address in particular the point about compensation, and will she come back to us with a considered response from the DWP to the recommendations in the ombudsman’s report?

I really thought that I had confirmed the situation about Ms U. She has had an unreserved apology. We made a £7,500 compensation payment. We paid the benefit arrears of £19,832.55 and gave money for interest. I think that I have been very clear about that. On the issue of compensation to others, again, it is a discretionary scheme, but I re-emphasise that if anybody believes that they have a special case, they can make representation. I think that clears the way.

My Lords, should it not be axiomatic that where somebody suffers as a result of maladministration there is automatically compensation? This is not a criticism of my noble friend, who is the most kind-hearted of people, but we must have compensation if maladministration is the cause of suffering.

I thank my noble friend for that intervention. I have shared with the whole House the legal position on compensation when it is a LEAP scheme. The PHSO has let the department know what he thinks should happen. I have told noble Lords what the legal position is, and I know that the department needs to respond to the PHSO. When it does that, I am sure that the whole House will be made aware.

My Lords, of equal distress to people is the issue of overpayments in the benefits system, which is allied to the issue of underpayments. What measures will the Minister take, along with ministerial colleagues in the DWP, to restore confidence in the benefit overpayment recovery waiver system—a write-off system that would help people so that they are not forced to pay back money they do not have?

The noble Baroness makes a very fair point about overpayments. When letters arrive in the post saying, “You owe me X and you’ve got to pay it back”, they do cause distress. I do not argue with that point at all. We have a team that deals with customer interface. It is trying to make the system better all the time. I will go back and speak to the official responsible for that particular sphere of our work and, if it is acceptable to the noble Baroness, I will write to her to see what comes of that discussion.

My Lords, I refer to the Minister’s comment about payment of compensation to others being discretionary with a quote from the ombudsman:

“If Ms U’s decisions were typical, DWP will have declined to make others special payments on wrongly applied grounds, will have told them they could not complain to its Independent Case Examiner and will not have told them about the Ombudsman. That means that likely routes for such evidence were closed off.”

In the face of that clear statement from the ombudsman, how can the Government continue to refuse to commit to paying compensation to all other victims of the same maladministration?

I can only tell the House the position of the department. I understand completely the situation and the depth of feeling about compensation for others, and I have to leave that to the Minister for Welfare Delivery and others in the department to consider, although there is no need to. As I say, if people feel that they are a special case and have experienced the same things as Ms U, we would want them to make their case.

My Lords, when something terrible happens, the cry goes up: “This must never be allowed to happen again.” Is the department making investigations to see how the error occurred in the first place and how it can be avoided in the future?

When things like this do happen, they are awful and nobody is proud of them, but I am very pleased to say to my noble friend that the team responsible is looking at what happened and putting in place processes that will ensure that, God forbid, this never happens again.

My Lords, I take this opportunity to remind the Minister, the noble Baroness and the House of the underpayment of pension to widows and widowers. This is representative of some systematic problems within the department. Will the Minister be reporting to the House on the issue?

I am not aware of the facts of the underpayment of the widows’ and widowers’ pension, but as I always try to answer in full, I will go back to the department, find out if there is any correlation and write to the noble Lord.

Business of the House

Motion on Standing Orders

Moved by

That Standing Order 38(1) (Arrangement of the Order Paper) be dispensed with on Wednesday 26 January to enable the Committee stage of the Health and Care Bill to continue before oral questions that day.

My Lords, on behalf of my noble friend the Leader of the House, I beg to move the Motion standing in her name on the Order Paper.

Motion agreed.

Health and Care Bill

Order of Consideration Motion

Moved by

That the instruction of 5 January be revoked and that it be an instruction to the Committee of the Whole House to which the Health and Care Bill has been committed that they consider the bill in the following order:

Clause 1, Schedule 1, Clauses 2 and 3, Clauses 5 to 14, Schedule 2, Clauses 15 to 17, Schedule 3, Clauses 18 to 27, Schedule 4, Clause 28, Schedule 5, Clauses 29 to 40, Schedule 6, Clauses 41 to 43, Schedule 7, Clauses 44 to 61, Schedule 8, Clauses 62 and 63, Schedule 9 ,Clauses 64 to 68, Schedule 10, Clause 69, Schedule 11, Clauses 70 to 74, Schedule 12, Clauses 75 to 80, Clause 4, Clauses 135 to 144, Schedule 17, Clauses 145 to 148, Clause 95, Schedule 13, Clauses 96 to 109, Schedule 14, Clauses 110 to 120, Schedule 15, Clause 121, Clauses 81 to 94, Clauses 122 to 134, Schedule 16, Clauses 149 to 154, Title.

Motion agreed.

Health and Care Bill

Committee (3rd Day) (Continued)

Clause 14: Establishment of integrated care boards

Debate on Amendment 25 resumed.

My Lords, the group of amendments to which noble Lords spoke before the break deals in various ways with the appointments processes for integrated care boards. I will deal first with Amendment 32 in the name of the noble Lord, Lord Hunt of Kings Heath, which is designed to ensure that the chair of an integrated care board can be removed only by the integrated care board and not by NHS England. This is a worthwhile issue for debate, and while I recognise the spirit in which the amendment is offered, the noble Lord, Lord Hunt, and I are coming at this from rather different perspectives.

It is worth reminding ourselves that ICBs are accountable to NHS England and thereby to Ministers and ultimately to Parliament. That link is fundamental, given the amounts of public money involved. It is therefore right that the appointments and removals process should involve these bodies. In contrast, the noble Lord’s amendment would effectively break that accountability link, because under this amendment, neither NHS England nor the Secretary of State would be able to remove a chair who was acting inappropriately. We cannot have that.

I understand the concern that there should be a safe and robust process for the appointment and removal of the chair of an ICB. I can assure noble Lords that there will be. The chairs of ICBs will be public appointments and therefore managed in line with the Governance Code on Public Appointments and regulated by the Commissioner for Public Appointments. I regret that the Government cannot support this amendment, but I hope I have explained sufficiently why.

Amendment 33 would ensure that the chief executive is appointed by the integrated care board rather than the chair and not subject to the approval of NHS England. I am afraid that, once again, this amendment is not one we can accept. As your Lordships are aware, the chief executive is the accountable officer for the ICB and a crucial person for ensuring that the board is operating effectively. It is therefore right that the appointment should be ultimately made by the chair and approved by NHS England. This approach ensures that we bring together local knowledge and a commitment to ensuring the board is appropriately constituted, while also ensuring that golden thread of accountability from ICBs to NHS England and then ultimately to Parliament. Making the ICB the sole appointing body would break that chain of accountability.

I also remind the Committee that in order to ensure that ICBs can be established and formed in time, NHS England has carried out a selection process for intended designate chief executives which, subject to the passage of the Bill and commencement of the relevant appointment provisions, it expects to be appointed by the chairs of ICBs. All provisional ICB chief executive designates have been agreed by the NHS England appointments and approvals committee, and all candidates were subject to a fair and open recruitment process.

While the current process for appointing designate ICB chairs has primarily been managed and agreed by the NHS England appointments and approvals committee, chiefly in the interests of ensuring that ICBs will be ready to begin work, I reassure your Lordships that we would expect future appointments of chief executives to involve significant engagement from the ICB as a whole to ensure that all chief executives command the confidence of both the ICB and NHS England.

I would also like to address two other significant points the noble Lord raised in his speech: first, the question of conflicts of interest. I can assure the noble Lord that ICBs will have robust duties in relation to conflicts of interest and will be required to maintain and publish a register of members’ interests and make arrangements for the management of conflicts or potential conflicts of interest. Furthermore, part of the purpose of the chair’s veto is to ensure that candidates for the board who are unsuitable or have unreconcilable conflicts of interest are not appointed to the board.

The issue of conflicts of interest brings us to the important question the noble Lord raised about the role of members of the board. We believe that the value of these members is in bringing their experience, knowledge and perspectives to the board, rather than acting as delegates of their organisation or sector. ICB members will be considering the interests of the whole system rather than those of their organisations. I recognise that that will require a degree of cultural change; we are working with NHS England to support ICBs to build and develop these effective and collaborative working cultures. It is worth saying, though, that this work is currently ongoing—we are already in discussion about it. So, once again, and for similar reasons, I am afraid that this is not an amendment I can accept.

Amendment 34 in the name of the noble Baroness, Lady Merron, seeks to mandate

“the involvement of the integrated care board and the integrated care partnership in the appointment of the ICB chief executive.”

We agree on the importance of the board and partnership being involved in the appointment of the chief executive, and we would expect chairs to listen to any views expressed by other appropriate persons in taking a decision relating to this appointment. ICB chief executives must be able to command the confidence of both their chairs and their boards. However, it would not be effective or proportionate to place a statutory duty to consult here, as this would establish an extra bureaucratic step in the appointments process. One thing we hope to achieve in the Bill is to cut through layers of bureaucracy. We have worked closely with NHS England, the Local Government Association and a range of system partners to develop the proposals and ensure the minimum amount of disruption with maximum effectiveness. I fear that this amendment would create the type of bureaucracy the Bill is seeking to move away from.

I shall not speak to Amendment 34A in the name of the noble Lord, Lord Young of Norwood Green, as he was not here to move or speak to it. So, I turn now to Amendments 25, 31, 36 and 187; I am grateful once again to the noble Lord, Lord Hunt of Kings Heath, for tabling them. They seek to establish an NHS appointments commission for the appointment and removal of the ICB chair and ordinary members. Although I understand the spirit behind the amendments, I hope to convince the noble Lord that they are unnecessary.

First, and most importantly, a point that I have already made: ICBs are accountable to NHS England—and hence Ministers and, ultimately, Parliament. As a matter of principle, therefore, it is right that the appointment and removal process for ICBs should involve NHS England and Ministers. An NHS appointments commission is not only unnecessary but would cut across the appropriate accountability lines for ICBs. Adding another arms-length body to this landscape would create unnecessary bureaucracy and undermine the aim of merging NHS England and NHS Improvement to create a more joined-up approach across the NHS.

Further, it would also move us away from well-established approaches that, by and large, work well for other NHS bodies. For example, with CCGs, NHS England appoints the accountable officer and the members of the governing body are appointed by the CCG. We are proposing a similar approach for ICBs, through which NHS England appoints the chair, with the approval of the Secretary of State, the chair then appoints the chief executive, with the approval of NHS England, and the statutory ordinary members are appointed through a nomination process. Beyond that, local areas will have the flexibility to determine any further representation on the board in their area, the process for which is to be laid out in the ICB’s constitution.

I understand, of course, the presentational attraction of an independent appointments commission, and I am the first to agree that good governance arrangements are essential for managing appointments. However, I gently suggest that a separate appointments body can be remote and lack the local knowledge to ensure that every appointment is a success. In that sense, it would carry risk, and the ICB is too important a body to get this sort of thing wrong.

With a good deal of regret—I do not like to disappoint the noble Lord, Lord Hunt—I am afraid that the Government cannot accept these amendments. However, I hope that I have given the noble Lord some reassurance about the appointments process for the ICB, and that he will feel able to withdraw Amendment 25.

As I understand it, the noble Lord, Lord Hunt, is proposing a separate NHS appointments commission. I am suggesting that it would be unnecessary to add that arms-length body to the existing landscape.

My Lords, I am very grateful to the Minister for his response, which he has clearly put a great deal of thought into. At the end of the day, what is being proposed is a very top-down, hierarchical approach to running the health service. ICBs may be accountable to NHS England and, through NHS England, to the Secretary of State, because the Government are taking power of direction through this legislation. However, it becomes abundantly clear that ICBs do not look outward to their local communities; they look upward to the hierarchies above them.

This is the problem with giving NHS England such power over the chief executive and the chair. Anyone who has worked in the NHS knows that, in the target-laden, panic-ridden approach from the centre to local management, the ICBs will be under the cosh right from the start. For all the wonderful words that have been used about what they will do, the reality is that they will be beaten up by the centre in the traditional “target” approach to running the service. Of course, it did not have to be this way. While it is perfectly proper to have boards making their own decisions and appointments, and being held to account for interventions where necessary, this is such a top-down approach that I do not think it will work. I believe and hope that the House will seek to amend it in some of the ways suggested in these amendments. That said, I beg leave to withdraw my amendment.

Amendment 25 withdrawn.

Clause 14 agreed.

Schedule 2: Integrated care boards: constitution etc

Amendment 26

Moved by

26: Schedule 2, page 136, line 23, at end insert—

“(ba) a director of digital transformation (see paragraph 7A), and”Member’s explanatory statement

This amendment, and the other to page 137, line 10, ensure that a director of digital transformation is appointed to the integrated care board.

My Lords, in moving Amendment 26 I will also speak to Amendments 70, 73, 84, 134, 140 and 160. I start by warmly thanking the noble Lord, Lord Hunt of Kings Heath, for allowing me to speak to and lead on this set of amendments, to which his is the leading name. By the same token, I am delighted to see that he is now back in his place and able to advocate much more knowledgeably than I can the merits of the amendments in this group, which relate to the digital aspects of the NHS and the importance of digital transformation in the health service. They are designed to ensure that a digital transformation duty is set out, five-year plans are made, digital issues are high up on the agenda of the ICBs, and progress in this area is assessed and reported on.

I am sorry that I was not able to contribute at Second Reading on digital or data matters. However, as Chris Hopson, chief executive of NHS Providers, said in his Observer piece two Sundays ago,

“we need a national transformation programme that embeds modern technology, 21st century medicine, integrated care closer to home and much greater emphasis on prevention at the heart of our health and care system.”

There is huge potential for technology to help health and care professionals to communicate better and to enable people to access the care they need quickly and easily when it suits them. Quite apart from its impact on planning and administration, the technology, as the NHSE digital transformation website emphasises, goes all the way from ambulance iPads through fitness apps to digital home care technology. It ranges from websites and apps that make care and advice easy to access wherever you are to connected computer systems that give NHS staff the test results, history and evidence they need to make the best decisions for patients.

As the recent Wade-Gery report points out:

“Digital technology is transforming every industry including healthcare. Digital and data have been used to redesign services, raising citizen expectations about self-service, personalisation, and convenience, and increasing workforce productivity.”

It says that the NHS should be in the vanguard. It goes on to say:

“The pandemic has accelerated the shift to online and changed patient expectations and clinical willingness to adopt new ways of working.”

It also says that

“the vaccine programme, supported by so many brilliant volunteers and staff, was only possible through the use of advanced data analytics to drive the risk stratification, population segmentation and operational rollout.”

However, the review also says:

“The need is compelling. The NHS faces unprecedented demand and severe operational pressure as we emerge from the coronavirus pandemic, and we need new ways of working to address this. Now is the moment to put data, digital and technology at the heart of how we transform health services … Effective implementation will require a significant cultural shift away from the current siloed approach in the centre with conscious management to ensure intentions translate to reality … This system leadership should be responsible, in a partnership model between the centre and ICSs, for setting out the business and technology capability requirements of ICSs and the centre with the roadmaps to realise these, and for determining the appropriate high level technical standards, and blueprints for transformed care pathways.”

I have quoted the Wade-Gery review at length but the What Good Looks Like framework set out by NHSX last year is an important document too, designed as it is to be used to accelerate digital and data transformation. It specifies in success measure 1:

“Your ICS has a clear strategy for digital transformation and collaboration. Leaders across the ICS collectively own and drive the digital transformation journey, placing citizens and frontline perspectives at the centre. All leaders promote digitally enabled transformation to efficiently deliver safe, high quality care. Integrated Care Boards (ICBs) build digital and data expertise and accountability into their leadership and governance arrangements, and ensure delivery of the system-wide digital and data strategy.”

Wade-Gery recommends, inter alia, that we

“reorientate the focus of the centre to make digital integral to transforming care”.

In the light of all this, surely that must apply to ICBs as well.

We need to adopt the measures set out in the amendments in this group; namely, specifying in Amendment 26 that there should be a director of digital transformation for each ICB. ICBs need clear leadership to devise, develop and deliver the digital transformation that the NHS so badly needs, in line with all the above. There also needs to be a clear duty placed on ICBs to promote digital transformation. It must be included as part of their performance assessment—otherwise, none of this will happen—and in their annual report, as set out in Amendments 84, 134 and 140.

The resources for digital transformation need to be guaranteed. Amendment 160 is designed to ensure that capital expenditure budgets for digital transformation cannot be raided for other purposes and that digital transformation takes place as planned. It is clear from the Wade-Gery report that we should be doubling and lifting our NHS capital expenditure to 5% of total NHS expenditure, as recommended by the noble Lord, Lord Darzi, and the Institute for Public Policy Research back in June 2018. We should have done that by June 2022 to accord with his recommendations but we are still suffering from chronic underinvestment in digital technology. Indeed, what are the Government’s expenditure plans on NHS digital transformation? We should be ring-fencing the 5% as firmly as we can. As Wade-Gery says:

“NHSEI should therefore as a matter of urgency determine the levels of spend on IT across the wider system and seek to re-prioritise spend from within the wider NHSE budget to support accelerated digital transformation.”

It adds up to asking why these digital transformation aspirations have been put in place without willing the means.

I am also mindful of the other side of the coin of the adoption of digital transformation: there needs to be public information and engagement. That is why my noble friend Lady Barker and I have tabled Amendments 70 and 73, designed to ensure the provision of information about the deployment of treatments and technology as part of ICBs’ patient involvement and patient choice duties. Without that kind of transparency, there will not be the patient and public trust in the NHS adoption of digital technology that is needed. Rightly, success measure 1 of the NHSX What Good Looks Like framework includes that an ICS should, inter alia,

“identify ICS-wide digital and data solutions for improving health and care outcomes by regularly engaging with partners, citizen and front line groups”.

Success measure 5, titled “Empower citizens”, says:

“What does good look like? Citizens are at the centre of service design and have access to a standard set of digital services that suit all literacy and digital inclusion needs. Citizens can access and contribute to their healthcare information, taking an active role in their health and well-being.”

So in the NHS’s view the engagement and provision of information about the deployment of new technologies is absolutely part of the delivery of a digital transformation strategy.

In essence, the amendments would enshrine what is already there in Wade-Gery and best practice guidance where it relates to digital technology and transformation. We should be making sure that our NHS legislation is fully updated in line with that report and with the guidance on what success looks like for the digital age. I hope the Minister agrees to take the amendments on board, and I look forward to hearing his reply. I beg to move.

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for speaking so eloquently in support of this group of amendments. There are a number of amendments relating to data in this Committee and they fall into three categories. The first category, the group that we are debating today, is about the prioritisation of the digital transformation in the NHS. The second group looks at specific patient groups and the potential of data to improve their care outcomes. The third set is about confidentiality of data as far as patients are concerned. My view is that all three run together.

Like the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Cumberlege, I am enthusiastic about digital transformation in the NHS; indeed, I believe it is the only way we can hope to meet the challenges that healthcare faces over the next 20 or 30 years. However, there are two conditions. One is that the integrity of patients’ data is assured for individual patients. That has not always been the case in the past, and the debacle of care.data is a salutary warning of what can happen if we do not protect patient information in an appropriate way.

The second condition is resources. I was very glad that my noble friend referred to the issue of resources and to the Wade-Gery report, which is the most recent report looking at the arrangements to support digital transformation in the health service. Wade-Gery reported that

“transformation funding is … split between revenue and capital and dispersed across the organisations. Tech funding is variable, often diverted and not necessarily linked to strategy and outcomes, incentivising either monolithic programmes or small-scale initiatives.”

She commented:

“The requirement for digital transformation in other sectors has driven up the proportion of their spend on digital and technology”.

It has been well-known, for many years, that the NHS locally has not been spending sufficiently on data and data transformation. The latest estimate from NHS England is that the NHS spends less than 2% of its total expenditure on IT, while the noble Lord, Lord Darzi, and the IPPR suggest that this should be nearer 5% by 2022. I say to Ministers that, unless they can find ways to ensure the NHS starts to spend at that level, we are simply not going to achieve the kind of transformation we want.

One way to do that is to ensure that, at the ICB level, there is an official charged with driving this forward at the local level. We know, in general, in relation to boards of the health service, that the data/digital leadership often does not have a seat, in contrast to many organisations. This is why we think that needs to change. Overall, we believe this set of amendments would enable the Government and Parliament to show how important it is to prioritise the kind of digital transformation that we want to see.

My Lords, I support these amendments but first I believe in putting right wrongs. I failed to declare my interests in last Tuesday’s debate, so I took advice from the registrar. He assured me that I do not have to give a full account of my life and times, which is a great mercy to everybody, but I do have to declare what I am currently involved in and the remunerations. I serve on the Maternity Transformation Board, which is owned by NHS England, and the maternity Stakeholder Council, which is also supported by NHS England but is much more of a free agent.

I thank the noble Lords, Lord Clement-Jones and Lord Hunt of Kings Heath; it was a very rounded, fulsome and clear introduction to these amendments. I want to pick up the issue of trust, because both noble Lords linked trust and confidentiality. That is absolutely essential. We will not get the support or trust of the public if we do not respect their confidentiality, and I will say a word about that in a minute. I support Amendments 84, 134, 140 and 160—I have added my name to them. I also support Amendments 70 and 73, and wish to comment on those.

I strongly support digital transformation. Amendments 84, 134 and 140 place a duty on integrated care boards to promote digital transformation and to produce their own five-year plans. It will need money, so Amendment 160 requires the NHS to spend at least 5% of its capital allocation to achieve it. That is right, as digital needs sustained resource—it is not simply a “nice to have”; it is absolutely essential for the future of our services. I have talked to visitors from the USA and cannot believe how antiquated they think our systems are. In many places, they are still in the dark ages, so we have to invest in digital.

I support the increased use of digital technology in healthcare largely because of my involvement in two major inquiries into NHS services in the last few years. One evening in 2014, I had a telephone call from Simon Stevens, the chief executive of NHS England, before he was knighted and welcomed into your Lordships’ House, where he has already made a very significant contribution. He invited me to chair an inquiry into maternity services for England. The noble Lord has a sense of humour: he gave me nine months in which to deliver.

I set up a panel and we delivered in time, calling our report Better Births. Our 28 recommendations were accepted by NHS England, which then set up the Maternity Transformation Board and the Stakeholder Council, on which I have declared my interests. The Stakeholder Council is interesting because it is full of a wide range of people. A lot of charities, in particular, are on that council, and add a lot to the work that we do.

Two of the 28 recommendations are particularly relevant to this Bill and these amendments. We recommended that every mother should have her own digital maternity record, which she would create with her midwife. This record would set out the plans for managing her pregnancy, the birth and aftercare, which is so necessary for the baby, the mother and, I would add, the family. The mother’s record would then be accessible, with her permission, to all those contributing to her care. In future, we could see it being part of the child health record, and possibly the lifetime health record of the mother.

Although some progress has been made on improving access to NHS health records, we are still some way from achieving this, or the ambition set out in the NHS Long Term Plan for every citizen to have their own personal health record. We need to galvanise the NHS to move quickly and capitalise on the enormous potential that digital offers. That is what these amendments are designed to do. I am sure my noble friends on the Front Bench will consider them carefully and assess the potential that they offer.

I also recently had the privilege of chairing an investigation into the safety of medicines and medical devices; our report was called First Do No Harm. Thousands of women and children suffered avoidable harm relating to the medicines and one of the medical devices which we reviewed. They continue to live with the terrible consequences today. This harm did not take place in one isolated moment; it has spanned years and even decades. Why was it not detected and stopped? Many people could have been spared the misery it has been for them and their families.

Part of the answer to that lies in the absence of data. We found that data was not collected or that, when it was, there was no attempt to link data to identify patterns of concern. Paper records, such as there were, were incomplete, dispersed, archived or destroyed. The healthcare system could not tell us how many women had taken the epilepsy drug sodium valproate and gone on to have damaged babies. It could not tell us how many women had pelvic mesh implants, or which implants were used, or where and when.

We were astonished and deeply worried: the system was flying blind. We said that basic information about implantable devices such as mesh was so important that it must be collected, and it must be mandated. We need the name of the patient, the unique device identified, the surgeon, the hospital, and so on. At least then, if a concern about the device is subsequently raised, it will be possible to trace those who have been affected.

The previous Secretary of State agreed with us and issued a mandate for a database. Some noble Lords will remember the Medicines and Medical Devices Bill. It involved a great deal of discussion and persuasion in this House, but many of our amendments had government support and were enacted. Through these debates, the concept of the independent patient safety commissioner was discussed and strongly acclaimed. I am delighted that last week, an advertisement was published on the role, context and responsibility of the commissioner by the Department of Health and Social Care. I thank the department, the Ministers and the previous Minister for their unstinting encouragement and support, which have enabled this to happen. We hope that some outstanding candidates will apply for this position.

Of course, mining data will be an essential tool for the commissioner’s office. It is only by linking access and linking across that we will be able to say: “Stop. This doesn’t look right. We need to investigate and ensure that we achieve a safer service.” Digital data is powerful; it is an enabler and it can be a force for good. But we must treat patients’ records with care and we must respect the person to whom they belong. That is not the doctor or the NHS: that is the patient themselves. Later in Committee, we will consider amendments that address the sharing of records and consent. I am sure that we will have a lot of debate on that.

Amendments 70 and 73 are very important too. They would ensure that patients are made aware of new technologies and treatments and, crucially, that patients are involved in decision-making about these treatments and technologies. I know from the experiences that we heard about and the huge amount of evidence that we received in our review that that did not happen. That contributed to avoidable harm on a really shocking scale. Likewise, I have no doubt that if greater progress on digital records had been made at that time, the questions that we had in our review about how many people had been harmed, when and how, would have been answered. Digital records enhance patient safety, so I strongly support these amendments.

My Lords, I too stress the importance of digital transformation in our health and care services. I thank the noble Lords, Lord Clement-Jones and Lord Hunt, and my noble friend Lady Cumberlege for their contributions and for enabling us to have this debate.

The way that the noble Lord, Lord Hunt, has characterised this as three different issues interwoven is an extremely good way to think about this. I completely agree that the integrity and confidentiality of patient data, and having the resources to lead transformation, are essential components. I would just like to add a contribution on the third element, the prioritisation of digital and data. I too am going to cite the Wade-Gery review. It is really important that those of us who have worked in digital transformations in other sectors also encourage our health system to look outside. All health systems are probably 10, perhaps 20, years behind other sectors—financial services, retail and, dare I say, even politics—in their digital journey.

This is not just an NHS issue: it is a health sector issue. One reason why that is the case is that we have tended in health to think that digital is “other”, something separate from healthcare itself; whereas, actually, healthcare is that most human of services and digital is an enabler. It is the means, not the end, and it is hugely important that we think of prioritising digital and data as prioritising the overall transformation of care, rather than the digital transformation. This is not just semantics: it is important that everyone owns that transformation, most importantly our front-line clinicians, and that it is not something that is parked separately.

When I was growing up, my parents’ generation abdicated responsibility for the family VCR to the children. Certain business leaders, 10 or 15 years ago, abdicated responsibility for their technology transformation to their chief technology officer. If we really want to see the benefits of digital transform our health and care system, we must not abdicate that transformation to a digital transformation team. It needs to be the business of everyone—most importantly, our leaders. I hugely support the spirit of these amendments and particularly the amendments looking specifically at funding and a duty to lead transformation, but I caution against creating a post of digital transformation because that needs to begin with the chair, the chief executive and the medical and nursing directors, not just an individual with digital in their name.

My Lords, my colleagues and I built the first online facility for the voluntary and social enterprise sector in this country in 1997, called CAN Online. We learned rather a lot from doing that, and I actually came to many of the conclusions that the noble Baroness, Lady Harding, is telling us about. When we started this, we naively thought that this online environment was going to solve all our problems, as if it sat “out there” somewhere. We bought 12 computers: they came in very big boxes at that point, as noble Lords might remember. We put them in a room in a conference centre—we were in the Cotswolds—and I invited 12 entrepreneurial people working in the social sector to come and share a few days with them. We connected them all up. We thought it was about technology, but we actually we discovered that it was all about people and relationships; that this technology was simply a tool—an enabler—to facilitate a marketplace that we needed to build between us.

We began to understand that this was not about large systems up there that you plonk in the middle of things in some separate way. It is actually organic: they are very connected, and you need to co-create it and invent it together around the real needs and opportunities that are presenting themselves. I think this technology is telling us something about what needs to happen to the health service. It is organic; it is entrepreneurial; it is about creating a learning-by-doing culture. My colleagues and I have seen examples in the NHS and other parts of the public sector where millions of pounds have been spent on systems that have landed from Mars and have not worked.

First, we must understand the detail of this technology, and the opportunity that it brings. Later on, as we go through the amendments, I will share with noble Lords some technology platforms that we are working with across the country that have absolutely understood this. When they are engaged with the NHS, instead of the system getting behind them and building on their success and knowledge, it never follows up on the conversation with them. They never heard from the NHS again. There is a disconnect going on, and a fatal misunderstanding of how this new world now needs to work.

I welcome these amendments and this conversation, but we must understand—from those of us who built some of this stuff, even in the clunky old days of 1997 —that it is all about the relationship between people and technology and a learning-by-doing entrepreneurial environment.

My Lords, I, too, praise the noble Lord, Lord Clement-Jones, for his analysis and for rightly identifying the important connection between trust and confidentiality, and the noble Lord, Lord Hunt, for his diagnosis. In particular, I double up on the praise for Laura Wade-Gery and her report, which provides a huge amount of insight for this debate, and praise also my noble friend Lady Cumberlege, who has been a pioneer and remorseless champion of safety. She is entirely right that we are talking here not just about productivity but safety. Data saves lives, and her report made that point extremely well.

Basically, I just want to repeat absolutely everything that my noble friend Lady Harding said about ambition. My concern about this debate is not the analysis, which I think is spot-on; it is the level of ambition. I have lived through digital transformations. I lived through one in the music industry, and it did not just come from digital transformation officers—although I know that that is not the point of these amendments—but required the commitment of everyone from the superstars down to the roadies. Everyone in the industry was affected; it was a massive revolution; it led to an incredible improvement in the industry; but it was hard fought and a difficult thing to go through.

I have also lived through a revolution in digital in healthcare. Over the past two years, we saw amazing breakthroughs in individual areas, the vaccine rollout being a really good example to which my noble friend Lady Cumberlege referred, but also in non-present appointments with GPs and in other areas. But it took a pandemic to drive that progress as quickly as it did, and I never again want to see such a horrible emergency be required to create change.

The message to the Minister is that the Bill is a remarkable enabling document that helps the healthcare system in the UK make important progress across the board on many different areas, but the big challenge of our generation is digital transformation. It does not require a lot of legislative change. These amendments are not what will make a difference. My noble friend needs to have the energy, passion and determination to see through that transformation when he gets back to the department, and I hope that the Bill gives him the tools to do that.

I thought noble Lords would have more to say about digital matters. I shall respond to this group very briefly, because my noble friend Lord Hunt, the noble Lord, Lord Clement-Jones, and others have very adequately covered the issues: the potential for digital transformation, the need to use patient data, the need for resources and, as the noble Lord, Lord Bethell, just said, enthusiasm and leadership.

The noble Baroness, Lady Cumberlege, as she always does, brought us practical applications of the reasons why the amendments are necessary, and it brought to my mind that my digital interface with the NHS is a good example of someone who is absolutely at the coalface. I am part of UCLH’s digital patient management system. It does not talk to my GP and it does not talk to the Royal Free, which is where one has one’s tests in the part of London I live in, and I think, “For goodness’ sake, we really ought to be able to do better than this”.

My Lords, I am very grateful to the noble Lords, Lord Hunt of Kings Heath and Lord Clement-Jones, the noble Baroness, Lady Thornton, and my noble friend Lady Cumberlege for bringing these amendments for debate before the Committee today.

Once again, we are dealing here with an important set of issues. First, Amendments 26 and 35 would ensure that integrated care boards appointed a director of digital transformation. The Government fully agree with the spirit behind the amendments, ensuring a strong local focus on digital transformation. However, looking at the pros and cons, we must balance the desire to go further—which we all want—with the important principle that I have articulated before: that the provisions in the Bill should not be too prescriptive when it comes to membership requirements. As we have discussed, it is an essential principle of the Bill that there must be local flexibility to design the board in a way most suitable to each area’s unique needs.

As your Lordships will be aware, local areas can, by agreement, go beyond the legislative minimum requirements to appoint individuals with the necessary experience and expertise to address their needs. As such, prescribing particular roles in these provisions is not necessary. What I can say is that developing the digital capability of local health and care services is one of the areas that we would expect ICBs to prioritise. It is an area of significant investment centrally, as I shall come on to explain in a moment, and of similar investment by local commissioners; it needs good local leadership, undoubtedly.

To buttress this investment, the NHS has been set a very clear set of expectations in relation to digital transformation. This set of expectations is even called What Good Looks Like, and it will be the benchmark for integrated care boards. It sets the criteria against which they will be assessed for their effectiveness in using digital technology to support improved outcomes for patients.

The first measure of success is that the local system has a clear strategy for digital transformation and collaboration, with the right leadership. Integrated care boards are expected to have digital expertise and accountability in their leadership arrangements, but, as the noble Lord, Lord Mawson, brought out so well, we also expect a general development of digital competence in the board, and investment across the local system in expertise in building digital capability. That process certainly could be assisted through a chief information officer and other roles.

We will provide resources, including a non-statutory assessment framework for organisations to measure their level of digital maturity against the characteristics set by What Good Looks Like. It will help identify gaps and prioritise areas for local improvement. Assessments will be repeatable annually so progress can be tracked year on year.

We are not just setting expectations; we will be testing progress. This is obviously where the strength would lie in any expectation-setting process, rather than whether or not it was in statute. The Committee may like to know that my right honourable friend the Secretary of State and my noble friend Lord Kamall have regular meetings with NHSX, NHS Digital and NHS Transformation about the safe and ethical sharing of data and appropriate ways to break down silos. Ministers are in no way distancing themselves from those important issues; quite the reverse. Data Saves Lives is the name of the draft strategy that we published, and it is a title that vividly reminds us of what is at stake here.

I just say to my noble friend Lady Cumberlege that I am also especially pleased that we are in the process of appointing the first ever patient safety commissioner for England. The role is currently open for applications until Tuesday 25. As she knows, the patient safety commissioner will be responsible for promoting good practice, for calling the healthcare system to account and for identifying and monitoring potential problems across the system.

While on the topic of digital transformation, let me turn to Amendments 84, 134 and 140, which seek to place a duty on ICBs to promote digital transformation, accompanied by the publication of a five-year plan for digital transformation, with an update at least once every five years. The use of digital technology has been crucial to meeting the demands which Covid-19 has placed on health and care services. It has given renewed impetus to an area which in the past, as the noble Lord, Lord Hunt, will know from his considerable experience, has been problematic for the NHS.

Leading the process of digital transformation locally is a significant role for the integrated care board, but this should be part of its general duties rather than a separate duty. I am afraid that I do not think it would be proportionate or effective to have a stand-alone statutory duty, as it would require the creation of a separate planning and reporting process, which we do not think is necessary. As I have made clear, we will test the progress of ICBs in this area against the expectations we set.

There is a broader point, which my noble friend Lady Harding brought out cogently: digital transformation is most effectively done as part