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Public Bill Committees

Debated on Thursday 9 September 2021

Building Safety Bill (First sitting)

The Committee consisted of the following Members:

Chairs: Philip Davies, Peter Dowd, Clive Efford, †Mrs Maria Miller

† Amesbury, Mike (Weaver Vale) (Lab)

† Bailey, Shaun (West Bromwich West) (Con)

† Baillie, Siobhan (Stroud) (Con)

† Byrne, Ian (Liverpool, West Derby) (Lab)

† Cadbury, Ruth (Brentford and Isleworth) (Lab)

† Clarke, Theo (Stafford) (Con)

† Clarke-Smith, Brendan (Bassetlaw) (Con)

† Cooper, Daisy (St Albans) (LD)

† Hopkins, Rachel (Luton South) (Lab)

† Hughes, Eddie (Parliamentary Under-Secretary of State for Housing, Communities and Local Government)

† Logan, Mark (Bolton North East) (Con)

† Mann, Scott (Lord Commissioner of Her Majestys Treasury)

† Osborne, Kate (Jarrow) (Lab)

† Pincher, Christopher (Minister for Housing)

† Rimmer, Ms Marie (St Helens South and Whiston) (Lab)

† Saxby, Selaine (North Devon) (Con)

† Young, Jacob (Redcar) (Con)

Yohanna Sallberg, Adam Mellows-Facer, Abi Samuels, Committee Clerks

† attended the Committee

Witnesses

Sir Ken Knight CBE, QFSM, Independent Panel Expert

Dan Daly, Head of Protection Policy and Reform Unit, National Fire Chiefs Council

Graham Watts OBE, CEO and Chair of the Competence Steering Group for Building Safety, Construction Industry Council

Adrian Dobson, Executive Director Professional Services (member of the Industry Safety Steering Safety Group), Royal Institute of British Architects

Public Bill Committee

Thursday 9 September 2021

(Morning)

[Mrs Maria Miller in the Chair]

Building Safety Bill

Before we begin, I have a couple of preliminary announcements. I encourage Members, if they are able, to wear a mask when they are not speaking, to try to accommodate the fact that we are quite a large number of people in this room. Please can you also give members of staff space when you are seated, and think about social distancing when you enter and leave the room? Hansard colleagues would always be grateful if Members could email their speaking notes, if they speak. Can you also all ensure that electronic devices are silent? Teas, coffees and food are not allowed during the sittings.

Today, we will first consider the programme motion on the amendment paper. If you do not have a copy of that before you, please see one of our officials sitting at the side. Then we will consider a motion to enable the reporting of written evidence for publication, and a motion to allow us to deliberate in private about our questions before the oral evidence starts. In view of the time available, I hope that we can take those matters formally without debate. I call the Minister to move the programme motion standing in his name, which was discussed this morning by the Programming Sub-Committee for the Bill.

Ordered,

That—

(1) the Committee shall (in addition to its first meeting at 11.30 am on Thursday 9 September) meet—

(a) at 2.00 pm on Thursday 9 September;

(b) at 9.25 am and 2.00 pm on Tuesday 14 September;

(c) at 11.30 am and 2.00 pm on Thursday 16 September;

(d) at 9.25 am and 2.00 pm on Tuesday 21 September;

(e) at 11.30 am and 2.00 pm on Thursday 23 September;

(f) at 9.25 am and 2.00 pm on Tuesday 19 October;

(g) at 11.30 am and 2.00 pm on Thursday 21 October;

(h) at 9.25am and 2.00pm on Tuesday 26 October;

(2) the Committee shall hear oral evidence in accordance with the following Table;

Date

Time

Witness

Thursday 9 September

Until no later than 12.20pm

Sir Ken Knight CBE QFSM, Independent Expert Advisory Panel; National Fire Chiefs’ Council

Thursday 9 September

Until no later than 1.00pm

Construction Industry Council; Royal Institute of British Architects

Thursday 9 September

Until no later than 2.45pm

Construction Products Association; The British Standards Institution

Thursday 9 September

Until no later than 3.30pm

The National Housing Federation; Local Authority Building Control; Local Government Association

Thursday 9 September

Until no later than 4.15pm

UK Cladding Action Group; End Our Cladding Scandal

Thursday 9 September

Until no later than 5.00pm

Landmark Chambers; Anthony Gold Solicitors LLP

Tuesday 14 September

Until no later than 10.15am

The Health and Safety Executive; Office for Product Safety and Standards

Tuesday 14 September

Until no later than 10.45am

Long Harbour; Home Builders’ Federation

Tuesday 14 September

Until no later than 11.25am

Councillor Jayne McCoy, Sutton Council; The Institute of Residential Property Management

Tuesday 14 September

Until no later than 2.45pm

Leasehold Knowledge Partnership; Association of Residential Managing Agents

Tuesday 14 September

Until no later than 3.30pm

BRE Global Limited; Association of British Insurers; National House Building Council

Tuesday 14 September

Until no later than 4pm

Fire Brigades Union

Tuesday 14 September

Until no later than 4.30pm

UK Finance

Tuesday 14 September

Until no later than 5.00pm

Alison Hills; Stephen Day

(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 2; Schedule 1; Clauses 3 to 21; Schedule 2; Clauses 22 to 26; Schedule 3; Clauses 27 to 42; Schedule 4; Clauses 43 to 54; Schedule 5; Clause 55; Schedule 6; Clauses 56 to 120; Schedule 7; Clauses 121 to 128; Schedule 8; Clauses 129 to 133; Schedule 9; Clauses 134 to 147; new Clauses; new Schedules; remaining proceedings on the Bill;

(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 26 October.—(Christopher Pincher.)

Resolved,

That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Christopher Pincher.)

Copies of written evidence that the Committee receives will be made available in the Committee Room and will be circulated to Members by email. I am sure that you have already received that initial email. Thanks to all the Clerks and all the staff, who are doing an amazing job on what is a lengthy and complex Bill.

Resolved,

That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Christopher Pincher.)

The Committee deliberated in private.

Examination of Witnesses

Sir Ken Knight CBE and Dan Daly gave evidence.

We are now sitting in public again and the proceedings are being broadcast. Before we start to hear from witnesses, I encourage Members who wish to make a declaration of interest in connection with the Bill to do so. First, I will put my own interests on the record. My husband is a partner in Kingsley Napley LLP, whose clients include those involved in the building industry.

Thank you. I remind colleagues that if you feel there are things that you should register, you can talk to the Clerks during our proceedings.

We will now hear oral evidence from our first panel of witnesses: Sir Ken Knight, the independent panel expert, and Dan Daly, head of the protection policy and reform unit at the National Fire Chiefs Council. Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings on the programme motion that the Committee has agreed. For this session, we have until 12.20. Will the witnesses please introduce themselves for the record?

Sir Ken Knight: I am Sir Ken Knight. I currently chair the independent expert advisory panel at the Ministry of Housing, Communities and Local Government, which was formed immediately after Grenfell. My background—my DNA—is in fire. I was in the fire service for 40 years, after having been the chief fire officer in Dorset, then the west midlands, and then I was the London fire commissioner before becoming the Government’s chief fire and rescue adviser.

Dan Daly: My résumé is somewhat shorter than Sir Ken’s. I am currently a serving assistant commissioner in the London Fire Service. For the last 12 months I have been seconded to the NFCC to head up the protection policy and reform unit, working alongside government colleagues on new legislation.

Q It is great to see both witnesses. If there was one thing that you would like to see in the Bill to improve building safety for people, what would it be?

Sir Ken Knight: First of all, I think it is a very robust Bill. It will not be a quick-fix Bill, but nor should it be. It is a generational change. It would be wrong to suggest that there is an instant solution. The whole notion of putting a Building Safety Regulator in place and in charge of these matters will take time to work through. I am not sure there is a quick fix. I think the challenge will be in enhancing capability and competence throughout the sector, because that is still lacking in all areas, whether it is in enforcement or the built environment. I would like to return to that, if I may, at the end because there is something—probably outside the remit of this Bill Committee—that needs to be thought through. We need to educate fire engineers in competency and not leave it to chance, because there are very few at the moment to take on the new roles.

Dan Daly: I welcome the Bill. It is an important step change in building safety legislation. If I were to look at one element, the scope is fairly narrow at the moment. I understand the need to build the role of the regulator and the extent of the Bill in a proportionate way, but as Dame Judith pointed out, it was a broken system that led us to where we are today. This is our opportunity to fix it once and for all. The history of fire safety legislation is littered with disasters that people have sought to fix, and the fix has applied to one particular area of the built environment. This is our opportunity to look at that scope and certainly build gateways into broadening the scope at an appropriate point to make sure it takes full account of the built environment and the issues that are definitely there in buildings other than high rise residential.

Q I have been struck by the approach of the Australian Government, particularly in the state of Victoria. Rather than just treating this as an issue to do with buildings, they have treated it as a public safety emergency issue. They have looked at the safety not only of people living in the buildings but of their neighbours, fire safety officers and people who might attend a fire. Do you have any reflections on whether this should be considered simply through a buildings lens or whether there is a broader public safety emergency issue here?

Dan Daly: There is a lot to be admired in what other countries have done, and certainly in that particular example, but you have to remember that they were some way ahead of where we are and where we started from. There was already a single regulator in place in Victoria that was able to be instructed to take on some of this work. The number of buildings and the scale of the issue were much smaller than where we are. I think in total there were around 2,300 buildings, looking at a much broader spectrum of buildings—healthcare buildings and schools above two floors, and all other buildings above three floors. We know that, when we are looking in this country at buildings above 18 metres, we are already talking about 12,000 buildings—that is just high-rise residential. When we talk about buildings above 11 metres, we are probably closer to 100,000. If you take on the full range of where they were in Australia, the numbers just keep increasing exponentially.

There is something to admire in where they were—certainly the fact that sprinklers and alarm systems were in much wider use in those buildings, so that, in the fires that they saw, nobody died. There were measures in the buildings to tackle those instances early, and equally to alert people to the fires. It is certainly something that we have been talking about and pushing for: the wider use of sprinklers and alarm systems. It is good to see that there has been some change and movement in that, as part of the work that we have gone through so far. You cannot discount what has gone on. We should always look to learn, but there is something about scale and scope here that is different.

Sir Ken Knight: Can I just add to that, Chair? I had the privilege to host both a political head and an official head from Victoria very early on after the tragedy at Grenfell. Remarkably or not, they were very complimentary about the work taking place in the building safety programme—as you will recall, the Victoria high-rise fires occurred several years before Grenfell itself. They were impressed, even though none of us is satisfied that the pace is enough on all of these things. Of course, they had the luxury that they had no fire deaths at all. It was a wake-up call for Victoria as well—to realise that they could not wait for the tragedy of the 72 fire deaths that we saw here to do things.

For all of us who have been in touch with other countries, there is lots to learn from them. However, it is also about the capacity: the numbers of buildings, and the significant number of high-rise buildings, that will be covered even in the first-stage proposal in scope in the Bill, compared with the total number in somewhere like Victoria.

Q Good morning to you both. Will the reforms to the building control profession fix the problems identified by Dame Judith Hackitt? In particular, are the Government right to return the power of duty holders to choose their own building control body?

Sir Ken Knight: It is quite a significant part of Dame Judith’s report, of course, and that mixed economy has come through into the Bill. It is actually something that I support, providing that there is a level playing field in the competency, ethics and assurance of those doing the work. That is covered in the Bill, in a great deal of how the Building Safety Regulator will need to bring that to bear. The Bill makes the point, though, that in those buildings of higher risk the Building Safety Regulator is the enforcing authority for building control purposes—not either of those two bodies. I think that that is right. However, it is about levelling up the playing field for the competencies and assurances that are in place with some bodies and not others at the moment. There is a bit to go, but I personally do not object to that outcome, providing that the private sector actors involved in that are not directly employed by those for whom they are doing the work in seeking the outcome for the approvals.

Dan Daly: I do not have much different to say. The inability to choose your own building control body is important, particularly for developers that have wrapped up a number of those services within their overarching companies. Having some independence of that is important. There needs to be some robust checking if there is private sector involvement; that is the important element, and hopefully that is part of the role that the Building Safety Regulator will be able to take on. I suppose that is something to come in the guidance that will follow this Bill. We have issues of competency and capacity across the sector, so we need to keep our mind open to all those avenues, but with the appropriate checks and balances in there and the appropriate safeguards to ensure there is no compromise on safety in favour of profit.

Q It is good to see you both again. Is height the best measure of risk? If so, is the threshold in the Bill appropriate?

Sir Ken Knight: I am sorry; I missed some of the early part of the question.

It is my Scouse accent. Is height the best measure of risk? If so, is the threshold in the Bill appropriate?

Sir Ken Knight: I promise you that it is my hearing. Height is pretty arbitrary in risk. I think any professional would say that; I am sure Mr Daly will comment from a national fire chief’s point of view. It is right that there is at least a point to start, and the threshold in the Bill of 18 metres or more than six floors is a place to start. I would not want to presume that that means that high-rise is necessarily high risk, because risk is a difficult equation with two axes—one is probability, and the other is the catastrophic outcome risk.

Dame Judith’s report, and indeed the Bill, are based on the idea that the more people who could be involved in a single fire, the greater the catastrophic risk. In reality, more deaths occur in the home in bungalows, but that is not about height; it is about the demographics of people living in bungalows and the effects of that. It was right to set the bar somewhere.

Helpfully, though, the Bill allows the Building Safety Regulator to look at that first flush of buildings in scope—that will result in something like 12,000 buildings, a significant capacity issue to deal with—and then to move on from that in a dynamic way to look at other risk features that are not necessarily height-related. One might want to include in the next stage care homes and hospitals that are not necessarily over 18 metres. However, as a first tranche, the place to start is right.

Mr Daly, would you like to reply to that?

Dan Daly: The short answer from our perspective is no. We talked about broadening the scope, and that is a nod toward the fact that we recognise other premises as being high risk. Part of that risk is about not just the physical attributes of the building, but the people who live in, use and work in those places, particularly our most vulnerable people, and the reliance they may have, in terms of the evacuation strategies from those buildings, on the building’s performing in a way that allows time for horizontal evacuation or phased evacuation, supported by people who are there to enable them to escape from the building when they need to.

There are a number of factors that I do not think are yet covered here, and I would like to see the opportunity to broaden the scope at some appropriate point, but I understand the proportionate start in the way that Sir Ken has described.

Q Sir Ken, good morning. Given that, thankfully, the number of fires and deaths in buildings is low—although ideally it would be zero, of course—do you think the market has overreacted?

Sir Ken Knight: It is a very fair question. That is in the area of probability or likelihood of risk. Most of us do not run our lives in terms of anything other than likelihood, whether it is flying in an aeroplane or crossing a road. We do not tend to judge the catastrophic risk of those. There is a good deal of risk aversion at the moment, which is natural after the tragedy at Grenfell, but unfortunate, because, as you say, last year fire deaths in the home were at a 40-year low. If we think of the past year, where for the first time most people were in their homes and not in offices, that is quite a significant statistic.

Even in high-rise residential flats, most fires occur in the room and flat of origin and do not spread beyond the flat of origin, and most deaths do not occur outside the flat of origin either. That is not to make light of all the deaths that occur, of course. I think the question that you have asked is key for me in ensuring that we do not suggest there is no risk below 18 metres—going back to the previous height issue—nor is it all risk above 18 metres. It is a risk-based, proportionate approach, according to a competent risk assessor. What we have seen at the moment are both lenders and insurers moving that risk aversion to the point that people in their homes feel unsafe when they are not, are anxious about living where they are, and are finding the effect on the value of their flats very difficult. I think we have to bring the pendulum back to a proportionate approach, allowing competency and risk assessment, not a binary “is it safe or not safe?”

Dan Daly: What I would add to that is the fact that there have been some well-intentioned actions over time in order to keep people safe and try to build some reassurance back into the built environment. People have seen Grenfell, and they have since listened to the evidence at the inquiry. Quite understandably, public confidence is undermined, but what we are now seeing is undoubtedly that some of the measures, whereby those costs are being passed back to leaseholders, are causing actual harm. The effort to protect people from potential harm is now generating real harm to people’s mental health and wellbeing, so there needs to be a reaction in order to try to bring that back to the centre. Fires are mercifully rare, but as a professional fire officer, I can say that one fire is too many and one fire death is too many, wherever it occurs. I understand the need to bring the pendulum back, as Ken has described.

Q I do, thank you, Mrs Miller. I am very much of the view that the Bill has taken a rather arbitrary approach by using height as well as the distinction between leaseholders and social tenants. Given the question around risk, do you agree that it would have been far better, and would still be far better, if the Government did a comprehensive audit of all buildings that are affected, then approach them on the basis of risk rather than height, the arbitrary ownership of the buildings, or the people who are living in them?

Dan Daly: Let me go back slightly to your first question, which was about what happened in Australia. I said that they were ahead of where we are because they knew where their buildings were, and they knew a lot more information about them. Right from the start, that has been an issue that has plagued efforts to understand the risk, where buildings are, what they are made of, and what are the other construction elements of their external envelope. That has been a difficult starting point. There is some work under way that the NFCC and fire and rescue services up and down the country are supporting through the building risk review, which is looking at high-rise residential buildings and trying to understand in more detail the exact condition and circumstances of the buildings. Given the focus of what brought us here today, I think that is the right place to start to try to rebuild that confidence.

For the future, we need the golden thread of information that we are talking about in the safety case regime. We need to start to understand more about the built environment completely, not just high-rise residential buildings, so that should we find ourselves here again—hopefully, we never will—we are in a better place to look at where the risk is, prioritise those buildings and maybe take some direct action in the first place. Unfortunately, we were just not in that place to start with.

Q But yes to an audit, or not?

Dan Daly: It depends on what the check is for the building and what the circumstances are. If you have the information, you can find what the appropriate intervention is. Realistically, when we talk about the numbers involved, where do you find the competency and capacity to do all buildings in an audit process? You have to find some risk-based approach.

Sir Ken Knight: Perhaps I could just add to Mr Daly’s point. The capacity and competency are important, because some of these are not just building checks. They are invasive and involve taking parts of buildings down and looking inside walls. It would be a very long process to do a whole system check on all buildings, which is why I think it was inevitable to take an 18-metre approach and talk about those buildings as higher risk in terms that I have described, rather than pause and do a whole system check on all the buildings. We would still be doing that some time ahead. The NFCC, for which Dan Daly is responsible, has done a great job in using fire and rescue services to check whether buildings are at risk or at multiple risks. It has had some very helpful results, because they have all been found to be risky buildings.

Unless there are supplementary questions on that, I will bring in Siobhan Baillie.

Q Mr Daly touched on this earlier. What role do you think the fire services need to play in ensuring that a future system is proportionate, in terms of both their own work and working with the Building Safety Regulator?

Dan Daly: Combining where we are now with the Bill and the secondary legislation to come along, I think the fire service has a role to play in helping to design that, to make sure that it is fit for purpose and that it complements what is coming through in the Fire Safety Act 2021, which will come out later this year. From what we have seen, there has been a clarification. The Bill does not mean any new powers for the fire and rescue service, but there is something in the information strands; this Bill will bring about a better knowledge of buildings. That is really important to the work of fire and rescue services in terms of targeting their regulatory role, adapting and making sure that their operational tactics are fit for purpose, and making sure that where we can target through our prevention activities, we are looking at the people who live and work in those buildings to make sure that the right prevention advice is provided to prevent fires in the first place.

Sir Ken Knight: I normally hesitate to comment on what fire and rescue services should do, having done it for 40 years and leaving it to professionals like Dan Daly and the NFCC, but I would just draw attention to the Fire Safety Act, which he referred to. The Fire Safety Act, of course, has recently passed through Parliament as an amendment. It does put, absolutely, enforcement authority with the fire and rescue authority, and that is the fire and rescue service. And it is much broader—this goes back to the height issue—because it is not just about height. It is about all those buildings where there are more than two occupancies, so it is a much broader piece of legislation, of which the enforcing authority is, effectively, the fire and rescue service. I think it will have a very close relationship both with local authorities and the Housing Act 2004 and with the Building Safety Regulator, because there is a wealth of knowledge in that background and experience and it is a key part of a modern fire and rescue service.

I am going to bring in Ruth now, and I know that Mike and Marie have further questions that they want to ask.

Q Thank you, Mrs Miller. I get the point that Sir Ken made about the need not to be too risk averse, but an estate of hundreds of students and leaseholders in my constituency was evacuated with a week’s notice. Also, Richmond House in south-west London burnt down in, I think, 11 minutes once the fire took hold, and it did not have what we think of as flammable cladding and was only four storeys high. I will ask both witnesses the question: to what extent does the Bill address that issue, or what else has to be done so that residents of all buildings, particularly those built in the last 15 or 20 years, can feel safe in their beds at night?

Dan Daly: I think you are referring to Worcester Park.

Yes, Richmond House in Worcester Park.

Dan Daly: There are a couple of things that I think are useful here. One is the competency issue. I think we have maintained right from the start that everyone involved in the build process, right the way through and from maintenance through to occupation, needs to be competent in the role. That is the first part: how these buildings are constructed in the first place and the appropriate measures—barriers, fire-stopping arrangements and so on—being put in place.

There is also the work around product regulation, which I think is really important. We have all seen the evidence at the Grenfell inquiry that products not fit for purpose have been openly sold, knowingly sold. That needs to stop, so that people can build in confidence with the materials they have. I think those two things come together quite well to look at the issues. But there is something, again, about the scope of the Bill. It is starting where it needs to start. I can understand that the new regulator would want to start proportionately and get that right. But I think it is hugely important that we open up the pathways to extending that remit, to look at other types of building.

We have the issue of modern methods of construction. That can be any kind of new aspect of building. I think Worcester Park has an element of timber-frame construction. We are seeing lots of modular construction. We have the highest modular constructed building in Europe here in London. Those kinds of elements need to be looked at to ensure that competency goes right the way through, from the off-site manufacture and the materials used, to the on-site installation. Those are things for the future; that is a good place for us to be. My concern at the moment is this: what are we doing about the existing stock? I think that is part of your question. There is the issue about how we can reach back on building defects. I think there is a slight flaw in that.

There is a welcome extension to the timeframes on this, but the slight flaw is that it is to the date when the building was complete. We have already seen buildings for which even the 15 years proposed now would have elapsed. If it has not elapsed there certainly is not time between it coming in and the point in which it elapses for the legal action to kick in and take place. There needs to be something about whether it is from when the defect has occurred. The defect, if not picked up during the building stage, would then be beyond the vision and scope of the fire service as a regulator. The fire service does not dismantle buildings to understand what was not done properly through the building control process and construction processes. We need to get stronger on that issue as well. Those are the elements we can do more on in terms of reaching back.

There is an issue as well with buildings and planning. Some buildings will already have attained planning permission under the broken system, and they will be allowed to be built going forward, adding to the pile of issues we are trying to address now. Where is the hard stop on those buildings? They need to be reapplied for to make sure the standards are fit for purpose today. That is another important element we would like to see change to make sure we do not add to where we are.

Sir Ken Knight: Can I just add to that? I think that is why one of the important inherent, underpinning foundations of the Bill is that it enables legislation. It is such a large Bill and requires secondary legislation. I am sure there will be some who will sit here and suggest that it is not detailed enough. I do not hold that view; I think, by being enabling, it allows flexibility in the future for additions and to change some of those issues. It allows for the Building Safety Regulator to look at new methods of construction of buildings and make recommendations to the Secretary of State. That is probably where we came from. The Act it replaces is the Building Act 1984—some 37 years ago. That fixing in time of something that needs to be so dynamic according to risk and change enables this Bill to be that opportunity for the next generation.

We have got just under 15 minutes, and there are three more questions to go through. Keep that in mind, if you could.

Q Under clause 84, an accountable person

“must take all reasonable steps for… preventing a building safety risk materialising as regards the part of the building for they are responsible”.

The definition of the part for which they will be held responsible is to be defined in regulation. Should it not be defined within the Bill itself?

Sir Ken Knight: That is one of those examples where getting this huge piece of legislation through the Parliamentary process, which will itself be 12 months away, will it not, will allow that regulation to come swiftly afterwards. I am pretty relaxed, personally, that regulation and secondary legislation will follow and build up the basis of this very quickly indeed with the experience that needs to be held. I am not the expert in that area, but I am very convinced that going down this enabling route is the way forward.

Q You just mentioned it coming forward very quickly after the Bill goes through, but there is nothing to guarantee that.

Sir Ken Knight: No, there is not, but I think the Building Safety Regulator is already on the case. He has issued a document only this week about what safety cases will look like. He and his team will be having the same capacity issues as everyone else, but nevertheless I suspect he is not waiting for the Bill to happen. Nor are the major people out there responsible for buildings in the future, which is pleasing. They are already looking at what they need to do now to make people feel safe in their homes, rather than waiting for the Bill to pass through Parliament.

Dan Daly: I do not have much to add. The detail will come. I would like and welcome the opportunity for NFCC to be part of those discussions, as some other stakeholders are, to keep the promises that are made here. I do agree that there is an awful lot left to trust, and there needs to be some oversight to ensure that that trust is not betrayed and that, if the Bill is put through as an enabling piece, the guidance that follows is suitable to bridge the gaps in the information that is not there at the moment.

Q Will the new regime stop resident leaseholders being fleeced by the mediation costs—the EWS1 process, the astronomical insurance costs? The list goes on and on—not to mention waking watch, of course.

Sir Ken Knight: I can deal with some of that shopping list, which you are right to highlight. EWS1 has been one of those areas. The external wall system 1 form is the surveyor form for evaluations. I would argue that it has been misused on premises where it has added cost to the leaseholder. I have seen real examples where people trying to sell a bungalow have been required to have EWS1 for an external wall, which frankly is nonsense. Again, that is about the proportionality of lenders and insurers recognising that some of those building heights and risks do not need that.

The other reason for me saying that about EWS1 in principle is that I believe it will quickly be overtaken by the external wall assessment of the Fire Safety Act 2021, because everyone will require that. One of the advantages is that you will have one risk assessment for the whole building and not every leaseholder having to have an EWS1 form to satisfy their lender when they want to sell, adding to the cost for each leaseholder in turn. Will the Bill address that? I think the combination of those other things I have just mentioned will certainly assist that, but it does mean needing to get back to an approach that is both risk-based and risk-assessed, and people being competent, and the culture has to change. It is going to have to change very quickly because Dame Judith recognised that both culture and competence were key issues. I think they still are.

Have you anything to add, Mr Daly?

Dan Daly: Just briefly, I think we have maintained the position for some time that leaseholders should not bear the costs of historic building defects. We welcome the extension of the period to look back at where issues have been found in buildings, but I think there is definitely more that could be done to give them that protection. Overarchingly, what is needed to give reassurance across a much wider sector—this is about lenders, insurers and constructors right the way through—is getting a regime in place as quickly as we can that supports and holds them to account in the right way.

I welcome the idea of industry leading the way to improve its own culture, but I actually want to see a regulator with some real teeth that can hold them to account as well, because that is what is going to be required. The Health and Safety Executive brought some real change in the construction industry, but that was because its attempts to change the industry were also supported by strong and robust enforcement that it was able to bring to that. Holding people to account and getting the regime in place that underpins the whole sector is something that will help with where we are.

Q I should have asked this question before, so I apologise. This is a pretty basic question, but we have gone straight into quite a lot of technical points. Since Grenfell there is understandably a lot of fear about high-rise buildings. How safe would you say a high-rise building is and what is the risk to life of a high-rise fire? I am interested in your expert opinions.

Dan Daly: It is very difficult in the context of Grenfell because that is obviously where people’s minds are focused, but in my professional experience you are generally at no greater risk in a high-rise building than you are elsewhere, and the figures bear that out. We see a number of deaths. My experience is in London and if you think about London, we see the commonality of people dying in fires is not where they live, but the circumstances of them, the vulnerabilities and the care they may be subject to, or the lack of care in some instances. That is what drives those deaths.

None the less, it is recognised that people will feel nervous in those homes. There is more that we can do and this regime helps with that. The work of fire and rescue services goes beyond response; we do much more than that. It is also about prevention and protection. The protection element is about looking at the buildings, and the prevention is about the advice we can bring to people in their own homes, and it all contributes to reducing that fire risk.

There is something here that people will recognise, which is that there is limited capability for fighting fires at height. We know that and have experienced that. That in itself will not help with public confidence, but the stats of the matter—this is an emotional argument, so stats are not always the best place to find ourselves—do not support the view that you are at any higher risk. However, we must address the fact that people have and should have the right to feel safe in their own homes. We are spending time on that, and I said I think it is the right place to focus the regime for now to build that confidence, but we must have the ability to extend the scope and make people safe wherever they live.

Sir Ken Knight: In the context of high-rise buildings, the differences are that it can be more dependent on the other measures in place to ensure that compartmentation is intact, such as fire doors, having self-closers fitted, ensuring that smoke ventilations are working—all of which, as we have heard in another place of inquiry, was woefully lacking. I think it is more dependent on that.

What is key is something Judith Hackitt picked up in this Bill: the residents’ voice as well as the residents’ responsibility. That is absolutely key to this as well. They need to be assured that they have the key information, but they also have to understand that they have a key responsibility to ensure that they and the others in the same building are safe as well. I think that combination makes high-rise different from a two-bedroom cottage somewhere, because it is more dependent on others and the compartmentation is more key. That is why I support starting at 18 metres in the Bill—starting at 18 metres for buildings in scope. That is the place to start, from our experience over the last few years.

Q On that very point, I absolutely agree with Sir Ken. The six tower blocks beside the elevated section of the M4 in my constituency, Brentford Towers, were built roughly 50 years ago. In the 35 or so years I have been in and around Brentford as a councillor and an MP, I am aware of at least one fatal fire in a flat, which destroyed that flat, but the evidence that I saw afterwards showed that the fire did not spread, beyond some smoke damage in the hallway of the four flats on that floor—it did not spread elsewhere, because of the compartmentation and the way they were designed to deal with fire, in a way that was messed up with Grenfell.

In terms of new build, building professionals have told me that in this country we have moved from designing and building for fire safety, as Brentford Towers were built, towards concerns about thermal insulation and energy saving, so have started to lose the focus on fire, whereas in other countries the two have gone together. Do the witnesses agree with that? If so, do they feel that the Bill addresses that challenge?

Sir Ken Knight: I have also heard it said—I have no evidence that it is correct—that the two sometimes seem to be movable objects in ensuring sufficient insulation, and indeed in making the homes and lives of residents much better and much less expensive because of heat loss and energy, and in meeting the very important net zero agendas as well. I think the Bill does address that. It makes it very clear that there are hard stops at each of those gateways that are put in place in the Bill, which the developer cannot pass until they have satisfied the Building Safety Regulator that they have met the fire safety requirements and the fire safety case. That has not ever been the case before. You could have a design and build that would move on and move on in process, and move beyond that gateway before being checked by the appropriate enforcing authority. I think the Bill has gone a long way towards addressing that very point—that fire and structural safety are not left as a second cousin.

Dan Daly: Absolutely. There is the ongoing role of the approved documents that sit behind the building regulations. That is an important part of what will support the endeavour of the Bill. We need to keep working on those. They have fallen woefully out of date with modern methods of construction. That is something that needs to be reviewed with the Building Safety Regulator going forward, and challenged to make sure that the appropriate documents are kept up to the date.

There is something about the competency of individuals as well, in reading those approved documents in tandem. There are documents that talk about how a building is structurally sound and how it is fire-safety sound, before it starts to talk about the thermal performance of the building, but the two should be read in conjunction. What we have seen is people not necessarily with the right competence adopting convenient interpretations of those documents rather than following what the documents are trying to say. That again points back to the competency issue and the oversight by the regulator, and hopefully the oversight of the gateway processes, to prevent those things happening again.

Q The Bill covers modern materials but says less about modern methods of construction. Some building faults over the years have been the interaction between different elements of the building, such as corroding metal parts or condensation and so on. Do you think the Bill goes far enough to address modern forms of construction, as well as modern materials?

Just before you answer, I will point out that we have two minutes and then I will have to bring this to a close.

Dan Daly: That points back to the competency issue. We have the products stuff that will hopefully be regulated and perform better—people will know that what they are getting will do the job it says on the tin—and then the individuals who are employed to make the determination about what products are used on a building in certain circumstances having the right competency to interpret the building regulations and the approved documents to make sure they are using the right things in the right places.

Sir Ken Knight: The Bill, of course, includes the provision for a new construction products regulator, dealing with the products, which is really important in modern methods of construction. You are absolutely correct that modern methods of construction are important. Of course, modern methods of construction bring with them a precision in construction by pre-forming and pre-making, so modern methods have some advantage. We need to ensure that they have in-built fire safety elements when they are constructed and finished as buildings.

I think that brings us to the end of questions for the first panel. I thank our witnesses for taking the time to be with us today, and for an incredibly useful set of answers. If I could ask you to exit through the doors, we will bring in our second panel of witnesses. Thank you very much.

Examination of Witnesses

Graham Watts OBE and Adrian Dobson gave evidence.

Thank you for being with us today. Just before we start our questioning—Ruth Cadbury will kick it off—may I ask you both to introduce yourselves?

Adrian Dobson: Thank you very much. My name is Adrian Dobson. I am executive director of professional services at the Royal Institute of British Architects. That includes supporting our educational and practice standards, and our work in association with the Architects Registration Board.

Graham Watts: Hello. I am Graham Watts. I am chief executive of the Construction Industry Council. I am also chair of something called the competence steering group, which was set up after the Grenfell tragedy to improve competences across the industry. For full disclosure, I also co-chair the building safety workstream of the Construction Leadership Council and I am a director of Building a Safer Future Ltd, which is responsible for the building safety charter.

Q Thank you. This question is for both witnesses. Do you feel that the Building Safety Bill will significantly improve the building safety regime in this country, and make residents of existing and future residential and other buildings feel safe?

Graham Watts: The Bill is very welcome. It is a step forward from the draft Bill that we saw last year. The clarification on scope has been very welcome, for example, but it is important to say that the Bill, or the Act in due course, will not be a panacea to ensure building safety. That is a really important point. The Bill is needed to support the paradigm shift that is needed in the culture change of the construction industry, and only that shift in the construction industry will ensure that we have safer buildings.

Adrian Dobson: I basically agree. It is important to say that it is just a piece in the jigsaw puzzle. It is very welcome that there will be a new regime for building regulations, and that the HSE will be placed with oversight of it. Basing it on the Construction (Design and Management) Regulations 2015, which have worked quite well in terms of looking after the safety of the people who construct buildings, is quite sensible. Without wishing to repeat what you have heard from previous witnesses, there are other pieces in the jigsaw. Inevitably, the industry relies on guidance. I think you have heard previously that the approved documents still need major review. Obviously there has been discussion about the buildings that are within the scope. You can imagine that other types of buildings may, in due course, need to come within scope, but it is sensible to start with what we know is at particularly high risk of catastrophic failure.

Before I bring Rachel in, I think the Minister has a supplementary question.

Q On Graham’s point about the paradigm shift that the industry and sector have to go through, what is the CIC doing to help them? The legislation is obviously going through Parliament. People need to prepare for its arrival, so how are you ensuring that people are suitably well informed, and taking the right decisions and action now?

Graham Watts: As you know, Eddie, it is a massive industry—3 million people and several hundred thousand companies. Co-ordination, communication, leadership and challenge are the key factors that we in the CIC, and the bodies that support us, such as the RIBA and the Chartered Institute of Building, need to concentrate on. We really need to get away from a culture that is based on a race to the bottom, as a result of which companies that win work at very low profit margins do everything possible to prioritise the commercial side of things, avoid penalties and cut corners on quality in order to increase profit. That is the basic culture that we have to change. We have seen the evidence of that in the Grenfell inquiry. We do not need to see where the evidence is; it is there before our eyes.

Adrian Dobson: One thing to add is that, obviously, we are keen for things to move on at pace. What a number of the professional bodies, including the RIBA, are doing at the moment is working on our accreditation regimes for the new duty holders, because obviously we need to be in a position to accredit professionals to undertake the principal designer and principal contractor roles once the new regime comes into play. That is an important task for the professional bodies to be getting on with now.

Q Thank you, Mrs Miller. That takes us to my question, which is about whether there is enough detail in the Bill. Have the Government left too much in secondary legislation, for example the golden thread and the gateway process? Those are two key elements of the new building safety regime—and you talked about professional bodies wanting information as well—that are not actually on the face of the Bill.

Adrian Dobson: There is a chicken-and-egg situation. I have been involved in a number of meetings on the competence standard, and obviously you can go off only what has been published so far. The publication of the draft regulations on the competencies and due diligence is quite helpful, although I hope that there may be a chance to talk about some concerns about those definitions. The more information that can come out, the better.

The Bill does explain the basic principles quite well, and I think everybody is supportive of that. There is complexity. One of the points that I would like to make, if I get the chance today, is that our view is that, if the principal designer is a key duty holder, they should be involved in gateway 1, which is when some quite key design decisions are made. It has been complicated to achieve that, because it has been achieved through a change to the town and country planning legislation. I can see that some of this is going to have to be sorted out once the system is in place; that is just inevitable, really.

Graham Watts: I tend to agree with the point that Ken Knight made in the previous session: the detail needs to be in secondary legislation, in the statutory instruments. Of course, that does mean that there needs to be adequate consultation and scrutiny of those statutory instruments. I have some experience of this from the industry perspective, as a designated body implementing aspects of the Building Act 1984. Too much of the detail was in the Act. It meant that there were unintended consequences down the line: things that needed to be changed could not easily be changed. That made my mind up on that issue.

Where there is a need for more detail on the face of the Bill is in those areas relating to the paradigm change in the industry that I spoke about earlier. That needs to be supported by the Bill, particularly in the area of competence, which actually underpins virtually everything that we are talking about. In the report that we produced at the end of last year, “Setting the Bar”, which sets out a new competence regime for occupations involved in high-rise buildings, we were hoping and expecting that there would be greater definition in the Bill.

For example, we thought that the requirement for independent third-party certification might be on the face of the Bill. It is absolutely essential, but it is not there. We think that there should be mandatory registration for those who have duty holder roles, and I am not just including principal designer, principal contractor and building safety manager. Also, for example, there is a need for independent construction assessment, and I am sure Adrian and I will talk about that a bit more later. It also seems to me an anachronism that we are defining the roles for principal designer and principal contractor but not for the building control profession.

Without having mandatory registration with the regulator—to say that Joe Bloggs or Freda Smith are qualified to be a principal designer—there is going to be a lot of confusion out there about who is qualified to hold those roles. I worry that the less scrupulous people within the industry will find ways around the requirements in order to prove, by some sort of desktop study, that they are actually qualified. There are also things like making sure that there is regular reassessment and mandatory continuing professional development. Although I appreciate that there are reasons why those details might not be in the Bill, we need them to be defined.

Q You mentioned that there is a bit of chicken-and-egg about what goes into primary legislation and what goes into secondary legislation—I think we are all alert to that—and that one way of squaring that circle would be to have additional scrutiny of secondary legislation. Could you expand on what you think good scrutiny of that secondary legislation would look like?

Adrian Dobson: Gosh. I am not so familiar with the workings of Parliament, but certainly I would make the point that those regulations will be very important. We have been poring over the competence regulations and the duty holder regulations; I know they are only in draft, to enable you to understand the Bill, but that level of secondary legislation and regulation will need proper parliamentary scrutiny.

There is also an important role for the industry, working with the HSE and the new authority, to ensure that the review of the guidance is done properly. With the best will in the world, I do not think this place or other similar bodies can do that detailed, rigorous interrogation of the guidance, and it is very important. It is the lack of guidance that has been causing some of the problems, particularly below the 18-metre threshold. We now have quite an ambiguous situation with those buildings, which is complicating the situation for leaseholders and so on.

Graham Watts: May I first of all say that I have been working in the industry for 42 years, liaising with Government on policy matters, and I do not think there has previously been a more exemplary case of consulting with industry, particularly on the draft Bill and more generally in the course of the Bill’s passage through Parliament? I would like to see the same process with the statutory instruments. We think there will be nine statutory instruments—we have seen two of them in draft already—but we need to continue that kind of early-warning consultation, avoiding unintended consequences, overlap and duplication and so on, with the draft secondary legislation, just as we have with the Bill itself.

Q Does the Bill protect leaseholders from unaffordable costs, and focus the mind or regulate to ensure that the industry steps up and pays its responsibilities and its fair share, given previous incompetence and very shabby practices?

Graham Watts: I think the answer to that is no, but the Bill does a bit more than the draft Bill did, particularly in the extension of the Defective Premises Act 1972. I am from the industry, and I have no doubt whatsoever that no leaseholder should have to pay for having been mis-sold a home that is not fit for purpose or safe. That should be axiomatic, and we should be exploring every opportunity. I know the housebuilders and developers have put up something like £500 million already, but in many cases they are not there any more—they have gone bankrupt, or it was a special purpose vehicle developer that does not exist any longer. I have no doubt that the Government must do more, but the industry must also do more, and I welcome the polluter pays principle of the developer tax.

Adrian Dobson: This Bill is a piece of the jigsaw; one problem is that this is predominantly a forward-looking piece of legislation, so it will address new projects and alterations to existing buildings, but it will not deal with the historical defects. That is a situation that will ultimately require the Government to engage with the insurance sector. We now have a situation where—to use the example of the EWS1 form, which I know you talked about earlier—because the insurance sector has pretty much excluded fire safety cover from many professionals, it is difficult to get professionals who can sign these forms, and they will now inevitably take a very precautionary approach, because they know that this insurance is difficult to get. There are some risks in thinking that the Bill itself will solve that; that historical liability is more complicated.

The Bill also raises the question of the insurability of the duty holder roles in the new regime; this illustrates why the interrogation of the regulations will be so important. The regulations as they are drafted at the moment mix words such as “take reasonable steps” with “ensure”, and they are very different. One is an absolute obligation and one is more like the CDM regulations. Will the insurers provide the insurance to underpin these roles? The insurance issue is where the problem lies, in my view.

Q I have really enjoyed the evidence so far; it has been really good, but will the Bill improve levels of competence and, just as importantly, listen to the Grenfell inquiry and the shameful evidence that we have heard? Will there be accountability in the construction industry?

Graham Watts: I think the answer to that is yes, because competence is in the Bill and it underpins and supports all of the work that the industry has done over the last four years—some of the things that Adrian talked about earlier in the different sectors. As I said before, I would personally like the Bill to go further in defining the levels of competence and in making sure that the people who are registered actually have the competencies. I think that is absolutely necessary.

Adrian Dobson: I would tack slightly along the same line. I think the Bill is very good at trying to address the competence issue, although, for example, there are weaknesses in other areas of the industry. Procurement is complex in construction. I know that has been discussed in the Select Committee and various places. There is a duty on the principal designer to monitor design work for compliance, and a similar duty on the contractor. “Monitor” is quite a weak term. In design and build procurement there is no requirement for independent inspection, or no duty on the designers to return to the building and say, “Has this building been designed and constructed in accordance with that design intent?” So I think it is stronger on competence than it is on addressing some of the realities of the construction industry. Will the hard stop at gateway 2 really be a hard stop, because the commercial realities of the construction industry will tend to want to keep the project moving forward, and that is a risk? So it is good on competence and perhaps a bit weaker in other areas.

Q The Bill gives the Secretary of State the power to regulate construction products. Does it contain enough information about the new regime? Is there enough certainty about what types of products would be regulated by the Secretary of State?

Graham Watts: We are obviously at an early stage in the development of the new powers for the product regulator. As we have discovered from the Grenfell evidence, it is an absolutely imperative aspect of the Bill, so I certainly welcome that side of it. The work that has been done in the industry to ensure integrity in the marketing information for construction products has been scandalously shocking in the past. As somebody from the industry, I am ashamed of the fact that we did not wake up to that, but I welcome a rigorous attention to the regulation of construction products and also the Government’s recent decision to postpone the implementation of the conformity assessed mark for a year, because that was causing huge problems in the construction sector. Personally, I think a year is not enough, but at least it is a step forward.

Adrian Dobson: My answer is probably similar to before. There is an inevitability that there will have to be secondary regulation. Maybe an area that it does not address is that once we get to the stage of developing revised guidance, we have some questions about how much different sectors of the industry have been able to influence the testing process. If you are going to rely on testing to give you confidence about the performance of products, that genuinely needs to be independent testing. I will be interested to see what the regulations say about that and how they keep that independence of the testing.

Q Obviously, the success of any legislation depends on how it is enforced once it is implemented. I am keen to understand from your perspective, how far in any enforcement regime is it about industry buy-in and co-operation? How far should the Government go in terms of really strict, hard enforcement regulation to ensure that it is not simply a case of the industry having to do it, but that there is actually buy-in from the industry to do it and to respect the regulations?

Graham Watts: Both of those things are equally vital. I think the industry welcomed the decision to place the Building Safety Regulator within the HSE, because it is a well-respected agency and people take notice of its interventions. We understand that the regulator is likely to have somewhere in the region of 750 staff. It is not going to be an insubstantial body, and I am sure it will take effective enforcement action, but it needs buy-in from the industry. That comes back to my earlier point about a culture change within the industry, and not just in terms of the scope of the legislation—it must go beyond that. As people have said, the twin-track approach to regulations could be confusing and complex. We understand why there needs to be a limitation on the scope to begin with; otherwise, the system will not cope and will collapse. But there will be confusing areas at the margins, and it is essential that the industry adopts the same approach to its work on buildings that are not in scope and on buildings that are in scope. We cannot have a twin-track approach as far as safety is concerned.

Adrian Dobson: In fairness to the Government, it is difficult for the Government to regulate the competence and behaviours of the industry. Without the industry acting as a willing partner, it is virtually impossible, and the Bill tries very hard in that area. A more contentious issue is to what degree you have an element of prescription in what is done. We have had an element of prescription, and it was probably agreed that that was necessary because we had a stock of buildings that there were serious doubts about. I know that the Mayor of London has introduced an element that has been quite controversial, but I suspect that working out where the balance is will be quite difficult. When it comes to fundamental elements of fire and structural safety, I wonder whether you will inevitably end up with some firmer guidance. It might become prescriptive regulation or just clearer guidance on the basics of means of escape, compartmentation, alarms and sprinklers. Those are the fairly basic safety systems that buildings rely on.

Q Graham Watts, you just said that you think the HSE is the right place to place the building safety inspector. Do you feel that the HSE has the right expertise and sufficient resources to do that, taking into account the additional resources that I believe the Government have committed for it?

Graham Watts: I guess it is an unfair question for now, because the regulator does not exist yet. But I have been impressed by the way in which the HSE has set up interim arrangements. For example, the interim industry competence committee—there is a committee on industry competence on the face of the Bill—has already been set up, and I am already liaising with the chair of that committee to make sure that there is an appropriate transition from the work that we have been doing within the industry for the last four years, to the work that will be eventually housed within the regulator.

Clearly, the staff at the HSE are experts on health and safety, so Peter Baker has to build up his team. He is a long way from being able to do that at the moment, but I am hopeful that the same principles and protocols that have driven the HSE—certainly its ability to consult the industry through bodies such as the Construction Industry Advisory Committee, which has been significant—will be carried over into the new regulator when the legislation is enacted.

Adrian Dobson: At a very basic level, the fact that it will be within the HSE sends a useful signal, because it says that at the heart of the building regulatory process is the safety and welfare of people. It is a simplistic thing, but it is quite an important signal. It has probably been given to the HSE because of the relative success of the CDM regulations. I do not think anybody in the industry thinks the CDM regulations have been perfect, and it has taken quite a lot of iterations to get them to where they are today. There are some weaknesses, particularly in the handover of information at the end of the project. That will also be so important for the safety of buildings under the new Fire Safety Act. But I think HSE has a good track record, which is possibly what is giving people confidence about it.

Q If there are no further questions from Members, is there anything that we have not covered in our questioning and that you would like to add at this point?

Graham Watts: There are a couple of concerns that I wanted to get across, and I think Adrian certainly shares one of them. The first one is a worry about the unintended consequences of the Act, if they are not carefully thought through. I do have a real worry about the insurability of some of these roles. Adrian has already referred to the narrowing and hardening of the insurance market for anything to do with fire safety and cladding. That is significant. A lot of companies are pulling out of that work altogether, because either they cannot get the insurance or the insurance is too cost-prohibitive. There is an onerous set of requirements on the building safety manager, for example, that I think will make it potentially uninsurable.

There are things that can be done to help that. Clause 91 on residents’ engagement strategy qualifies the requirements by saying so far as “reasonably practicable”. I think we need that kind of codicil to the requirements on some of the roles within the Act; otherwise, they are going to be uninsurable. I was responsible for setting up the designated body for registering approved inspectors after the Building Act 1984, and that legislation was not implemented until 1997. It took 13 years for us to get over the problems—the unintended consequences of the Act—that meant it could not be implemented. One of those problems was the inability to get insurance for approved inspectors. I think that is a warning signal that needs to be taken care of.

Secondly, there is a need for independent scrutiny of construction work. Adrian and I both believe very strongly in that. It came over as a recommendation from the Chartered Institute of Building and others in the working groups within the Competence Steering Group. We have lost that. If we go back in time, it was traditional to have clerks of works independently scrutinising the work on site. It was traditional for architects and engineers to go on site and supervise to ensure that their design work was being correctly implemented. We have lost most of that—they are rarities now—and I think that the requirement to have that independent assessment of construction work is essential. Whether it could be on the face of the Bill is, I understand, a moot point, but it is something that we need to develop, and we do need Government support—particularly as a client, actually—to help ensure that that happens, because it is one way to make sure that the design intentions are properly constructed, and that we get the quality that was always intended.

Mr Dobson, would you like to add any other thoughts?

Adrian Dobson: I would prefer to reinforce those three points. Whether it is a client’s duty to have some independent inspection or whether it encourages clients to have independent inspection through, perhaps, standards that can be developed for use by the duty holders, will be a key point. As Graham said, if we cannot get insurance for these duty holder roles, we risk to some degree repeating the EWS1 problem, where we create a system that then cannot do what it is meant to do.

Even with something like extending the Defective Premises Act, you can understand why it has been done, but it is yet another thing that will cool the appetite of the insurance market. That is why I think market engagement is so important. Graham has not said this, but I did mention earlier that we feel that once the HSE looks at this, it may wish to consider whether you should really have the principal designer involved in that planning application; because you are making decisions about how many means of escape there will be from a building, where you are going to site it on the site, and how you will get access for the fire brigade. You are making quite fundamental strategic decisions that go beyond just a fire statement, which is what the current regulations demand.

Q I want to pick up on that point of independent building scrutiny. Is that something that you would add to the scope of the proposed building regulator, or would you look at Victoria in Australia, going through building by building in terms of remediation and building safety at the moment? Indeed we, as an Opposition, are talking about establishing a building works authority. Which route would you choose, or where would that sit?

Graham Watts: We—by “we” I mean the Competence Steering Group rather than the Construction Industry Council—recommended that there should be an independent construction assessor on all projects in scope of the legislation. That obviously has not been taken forward, and I think I understand some of the reasons why, but I stress that whatever way that happens, it is essential to securing the culture change that I spoke about earlier.

Adrian Dobson: The Committee may wish to think about whether there should be duties on some of the designers as well. You can appreciate that when you are scrutinising construction work the architect may be able to look at some aspects. Some aspects very much need the structural engineer and the services engineer to be involved. So you might want some general inspectorate, as would be prepared by a clerk of works, that is on a more regular basis, but you will need some scrutiny from individual designers as well. There may need to be some duties around that, possibly.

Q I am interested that you picked up on the point about whom they would be accountable to. I was very struck by some evidence that we received from the UK Cladding Action Group, which said that there is almost no way at the moment to make construction professionals accountable to residents—the people who are living there. I guess the question is: to whom do you think the different bodies should be accountable?

Adrian Dobson: The most obvious person, given the way that the Bill is framed, is the client; but as you say, the client is rarely, in the construction process, the end user of the project. One of the areas—probably the most difficult to tackle—that has not been talked about a lot is how you raise the competence of clients. The Government themselves are a major procurer, as are local authorities. It is important that they set the example. At one time, local authorities would have employed clerks of works to go and look at projects, so it is quite interesting that they can act as a leading edge—but yes, it is a difficult one.

Graham Watts: For new build, obviously the sign-off at gateway 2 is from the principal contractor to the client. I think we are also talking here about a lot of refurbishment and renovation projects where the residents are in situ. There the responsibility needs to be to the building safety manager, and the building safety manager’s responsibility needs to be to the residents.

If there are no further questions, I thank both our witnesses for a really excellent evidence session, and for taking the time to come before us today.

Ordered, That further consideration be now adjourned. —(Scott Mann.)

Adjourned till this day at Two o’clock.

Health and Care Bill (Third sitting)

The Committee consisted of the following Members:

Chairs: Steve McCabe, † Mrs Sheryll Murray

† Argar, Edward (Minister for Health)

† Churchill, Jo (Parliamentary Under-Secretary of State for Health and Social Care)

† Crosbie, Virginia (Ynys Môn) (Con)

† Davies, Gareth (Grantham and Stamford) (Con)

† Davies, Dr James (Vale of Clwyd) (Con)

† Foy, Mary Kelly (City of Durham) (Lab)

† Gideon, Jo (Stoke-on-Trent Central) (Con)

† Madders, Justin (Ellesmere Port and Neston) (Lab)

† Norris, Alex (Nottingham North) (Lab/Co-op)

Owen, Sarah (Luton North) (Lab)

† Robinson, Mary (Cheadle) (Con)

† Skidmore, Chris (Kingswood) (Con)

† Smyth, Karin (Bristol South) (Lab)

† Throup, Maggie (Lord Commissioner of Her Majesty's Treasury)

† Timpson, Edward (Eddisbury) (Con)

† Whitford, Dr Philippa (Central Ayrshire) (SNP)

† Williams, Hywel (Arfon) (PC)

Huw Yardley, Sarah Ioannou, Committee Clerks

† attended the Committee

Witnesses

Sara Gorton, Head of Health, UNISON

Dr Chaand Nagpaul CBE, Chair of Council, British Medical Association

Professor Martin Marshall CBE, Chair of Council, Royal College of General Practitioners

Pat Cullen, General Secretary and Chief Executive, Royal College of Nursing

Professor Helen Stokes-Lampard, Chair, Academy of Medical Royal Colleges

Public Bill Committee

Thursday 9 September 2021

(Morning)

[Mrs Sheryll Murray in the Chair]

Health and Care Bill

Before we begin, I have a few reminders. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings of the Committee. I encourage Members to wear masks when they are not speaking, in line with the current Government guidance and that of the House of Commons Commission. Please also give each other and members of staff space when seated and when entering and leaving the room.

Members should send their speaking notes by email to hansardnotes@parliament.uk. Similarly, officials in the Gallery should communicate only electronically with Ministers. If everyone is agreed, we will go into private sitting to discuss lines of questioning.

The Committee deliberated in private.

Examination of Witnesses

Sara Gorton and Dr Chaand Nagpaul gave evidence.

All our witnesses are appearing in person. It is helpful if Members direct their questions to specific witnesses.

Before calling the first panel of witnesses, I first remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme order the Committee has agreed. For the first panel, we have until 12.15 pm.

Secondly, do any members of the Committee wish to declare any relevant interests in connection with the Bill?

Welcome Sara and Chaand. Will you kindly introduce yourselves, please?

Sara Gorton: Good morning. I am Sara—it is pronounced as if it is spelled with an h at the end. I am head of health at the trade union Unison.

Dr Chaand Nagpaul: My name is Dr Chaand Nagpaul. I am a GP in north London. I have been a GP for more than 30 years. I am chair of the BMA UK council. We represent doctors across the UK—more than 160,000. I represent all doctors of all types, working in hospitals, public health, general practice—you name it.

Q112 Good morning, both. My name is Edward Timpson. I am the Member of Parliament for Eddisbury in Cheshire. This question is for both of you, but I will start with Sara. You were a signatory who supported NHS England’s original proposals for legislative change back in 2019, I think. How much in the Bill before us reflects what you signed? What do the changes proposed bring for your members and to the health and care system, based on the proposals that you were in favour of back in 2019? That is probably something you will be able to answer as well, Dr Chaand Nagpaul, but Sara first.

Sara Gorton: I hope you have had our Bill submission, which makes clear the areas where we feel the new Bill needs some amending. You are right that Unison was a signatory, along with the BMA and other colleagues, to the letter in 2019, so it is a matter of concern that, after all this time and with such broad consensus, we are still awaiting the legislation.

The Select Committee process that followed that letter clearly identified that the changes that have been added would be contentious, so that is adding further delay. There are a variety of elements that stray outside the clear consensus that was set out in the 2019 proposals. However, we are committed to seeing an end to a system that holds lots of unnecessary cost implications for the NHS. There is an urgent need to stabilise and give clarity of employment, particularly for the 27,000-plus people who are currently in a state of flux, moving between the clinical commissioning groups and the proposed new ICSs.

There are some clear areas where we would like to talk to you about amending, improving and strengthening what is in the legislation at the moment. There is very, very clear support for following through on the commitments in that 2019 letter, to strip away the unnecessary procurement and competition regime.

Dr Chaand Nagpaul: The BMA was very opposed, and I believe rightly so, to the changes in 2012. We felt they introduced unnecessary competition in the NHS that did not work, has not worked, was not good for the taxpayer, fragmented the service and increased private sector involvement, which we can talk about later. We were very supportive of any changes that would reverse that legislation and have a duty of collaboration. In fact, I led a piece of work at the BMA called “Caring, supportive, collaborative: a future vision for the NHS”, where we spelled out the sort of arrangements we believe would be right, in keeping with the principles of the national health service, and be right for patients, right for the workforce and right for the taxpayer.

In principle, the idea that the Government were relooking at or reversing the 2012 Act was something we supported. In one way, you could say that the repealing of section 75 is an element that we are supportive of. However, in doing so there are not sufficient safeguards and we believe there are many consequences that would actually do the reverse, in particular with regards to a lack of assuredness around national health service providers being supported, in terms of the continuation—we can talk about this later—of unequal arrangements for the private sector provision of care compared to the NHS, and in terms of the lack of clinical engagement that would ensue. Of course, we are getting rid of a whole tier of local commissioning organisations, CCGs, and moving them at a more distant level, called ICSs. We are very concerned about that.

We are also concerned about some of the Secretary of State’s powers and the balance between political accountability and political influence. There is a range of issues here that we think need to be addressed.

The other thing I should say is that we are in the midst of a pandemic. It is by no means over. It is hard to grasp the scale of the backlog of care. These changes have occurred when the profession has not been able to engage. I have not had the time to properly be involved in the input. With the BMA I have, but my colleagues have not. We believe that this is the wrong Bill at the wrong time. We should really address what the NHS needs and get the right Bill at the right time, in due course.

Q May I have one follow-up question, Mrs Murray? Picking up on your answers and accepting that you will have some aspects of the Bill that you will want to challenge and some amendments that you will want to put forward, the general thrust of the Bill, which is moving from a competition to a collaboration approach, is one that you both welcome. In that endeavour, and touching on some of the issues around procurement and the section 75 regulations governing NHS procurement, what benefits do you see in the changes to the role of the Competition and Markets Authority, which will change the current procurement regime? You touched on some of your concerns, but what are some of the potential benefits?

Sara Gorton: When we set out our support along with other parties in 2019, we saw huge benefits from not wasting unnecessary time, process, money and oversight on unnecessary competition, particularly where no provider other than the NHS was capable of providing the service. We support the removal of the role, as set out in that consensus letter, and that has travelled through to the legislation.

Where we think this could be more robust is the so-called provider selection regime that backs up exactly how the process will be carried out. We think that needs to be extended to make it absolutely explicit that the NHS is the preferred provider where there is an NHS service, that there need to be limits placed on roll-over without scrutiny from external providers and that that provision should be extended to cover non-clinical services. I think that earlier in the week you heard from employers how important the whole-team—the one-team—approach had been during the pandemic and how crucial that had been to tackling the spread of the virus and the work that the NHS had done. We think that principle should be extended and placed in the provider selection regime as well.

Dr Chaand Nagpaul: We absolutely agree that repealing section 75 is something the BMA has called for since 2012. It has been a nonsense that every single contract up to this point has to be put out to tender: huge amounts of waste of taxpayers’ money and of time. As a GP, we were not even able to provide our own phlebotomy services without it going through a process, so in that sense, that is a good thing. However, just repealing section 75 without complementing it with the right tools to ensure collaboration will not work. In fact, the current arrangements repeal section 75 but do not provide any safeguards, or rather structural processes, that will, in our view, allow the NHS to work as a collaborative system.

The example I will give is that we believe the NHS should be the preferred provider of care wherever it is capable and wherever it is available to do so. There is so much evidence. People say: “Does it matter who provides?” Well, it does matter, and all the evidence in the last few years has shown repeated examples. Some of you will remember Circle taking over Hinchingbrooke Hospital. It is very easy for the private sector to say: “You know what? We will really run the NHS efficiently. We will use all the market skills we have.” The NHS does not work like that. We forget at our peril the added value, the accountability, the loyalty and the good will that the NHS provides. We really do.

We only have to look back at the last year. Compare the vaccination programme run by the NHS and delivered by NHS staff to Test and Trace. Even with Test and Trace, compare the £400 million that Public Health England had to the billions that went to the private sector, and local public health teams reached 97% of contacts compared to 60% for the others. I am saying that it does matter. Your local acute trust is not there on a 10-year contract, willing to walk away after two years. It is there for your population; it cannot walk away. I think that given those things, we need to make sure the NHS is the preferred provider.

Could I just ask you to keep your answers to within the scope of the Bill, please? Also, I ask if we could perhaps have more succinct answers. I still have several people who want to ask questions and we do not have a lot of time to get them in. I intend to call the Front Bench spokespeople at about 10 minutes to 12. I now move to the hon. Member for Arfon (Hywel Williams), but if we could keep to the confines of the Bill, that would be good.

Q This question is specifically for Sara. You said in your response to the Bill that you agree with the Select Committee recommendation for an annual report on workforce shortages. The workforce move, specifically between England and Wales, very freely and the Governments of Wales, Scotland and Northern Ireland have their own appreciation of workforce shortages and how to respond. For example, after a long campaign, we now have a medical school being set up in Bangor in my constituency. Anyway, the point of my question is how do you see the Governments in those parts of the United Kingdom being able to feed into the process without ceding their power to decide for themselves? How do you see it going?

Sara Gorton: This is a matter of no small significance to organisations such as my own that have membership across the UK. That ability to understand and translate the statistics that we get from one environment in the UK to another, and understand how that feeds through and get a whole picture of it, is really difficult at the moment. That is not just for the basic nuts and bolts of who is in the workforce at the moment, doing what job—the training plans, the workforce planning, and other aspects of workforce are really difficult to compare.

The short answer is that we would like to be involved in the interpretation, assuming that we do get that amendment through and the workforce reporting is on a more frequent basis than five years. We would like to be involved in the conversation about what that looks like, and how it can answer some of the issues that you have raised about feeding into a UK-wide perspective as well.

Q You see that in Wales, acting through the Welsh Government, so would you be seeking direct access regarding Welsh issues to the Government here in Westminster?

Sara Gorton: That is not something we have considered in the passage of the legislation so far, but we are certainly willing to talk about it in future.

Q Lastly—if I may, Chair, very briefly—a great number of people from Wales receive treatment in England, mainly from north Wales. They go to Merseyside and Manchester, and sometimes to London as well, so I am sure you would be in favour of the health bodies in those areas taking due regard of not only the health needs of their own population, but those of the population that comes in from Wales.

Sara Gorton: There are all sorts of workforce aspects that are very relevant to the England and Wales environment. The joint systems we have for pay and pensions, and workforce planning as well, all need to be factored in, but lots of work on the detail of the workforce reporting is needed.

Q I am interested in Unison’s position on the social care aspects of the Bill, and in particular the CQC inspection that is proposed, and also the data collection powers, please.

Sara Gorton: That is not an area of the Bill that we focused on. Our main focus is on extending the provisions of the provider selection regime—the procurement. I can do some more work and send in something.

Q That is fine. In that case, I will turn to Dr Chaand about a fit and proper persons register for those on NHS boards, or wishing to be on NHS boards. Do you have any views on that, and how legislation might expand?

Dr Chaand Nagpaul: I can tell you, just from the personal experience of being a GP over 30 years and speaking to doctors and representing doctors, that clinical engagement is vital. None of us can have any workplace that functions well until those who work within it feel engaged—feel that their voice is heard and their experience is understood. One of my biggest concerns about the current arrangements is that at the moment, for example, we have clinical commissioning groups. We have had seven GPs in my local area representing me and my colleagues. That is going to whittle down to no one, except one primary care doctor—we think—on an ICS board, which will be more remote, so we are diluting that local accountability. We vote for those doctors who sit on the CCG boards; we will not have any voting, so you are reducing the numbers who are influencing.

The second point is that we believe that those who sit on ICS boards should be facing the reality of the clinicians they represent. In the medical profession, we have two statutory bodies—the local medical committees and the local negotiating committees—that represent hospital doctors and GPs, and we believe that they should be there because of their motive: they will be clinicians representing clinicians, as opposed to what sometimes happens, which is doctors becoming managers. We know that that just disconnects, and if you have a disconnect, you will not be able to deliver your aims as a health service.

The other notable omission in the Bill, we believe, is the lack of public health presence. There is no place for a public health doctor. Again, I know that it is not in the scope of the Bill, but I think we have to learn from the past year. Public health is vital.

We should stick to within the scope of the Bill.

Dr Chaand Nagpaul: The scope of the Bill should include a public health doctor who is independent, who should be an advocate. Those of you who were present in the 1990s will know that is exactly what we had. An independent public health voice on ICS boards can provide proper independent advice on population health. These are meant to be population commissioning bodies, in the interests of the public. Those are the things that we think should be changed.

Would anybody else like to ask a question from the Back Benches before I move to the Front-Bench spokespeople? Okay, that means that the SNP and Labour spokespeople have around 10 minutes. If they could keep it between nine and 10 minutes, that would be appreciated. I call Dr Philippa Whitford.

Q Thank you very much, Mrs Murray.

I will ask each of you the same question. Obviously, the aim of the Committee is to improve the Bill and bring in voices. Sara, if you could amend only one part of the Bill, what would it be, and what change do you think would improve it to the greatest degree? I know that you may have three or four—your submissions are here—but what do you want us to do that would have the biggest impact in improving what actually happens to health and social care?

Sara Gorton: I am going to choose something that I think none of the other people you hear from, except staff representative bodies, will pick up on. We would like to see the principle set out in the NHS constitution: to involve staff in decision making about how the service that they work in is set up and run, and in decisions that could affect the way they work. That principle is very clear in the NHS constitution; at the moment, with the system set up the way it is, that is transacted through the relationships that staff have with their employers at a provider level. If the system proposed in the Bill comes in, one of the risks is that that may be undercut by decisions made at ICS level. I think trade unions and staff would feel as though they had a stake and would be reassured that they had involvement in future decisions with workforce implications made by those new bits of the system if that pledge were placed in the legislation and were the underpinning principle.

Thank you very much. Certainly, for some of the projects in Scotland around quality improvement or patient safety, the involvement of staff has actually made that work. Dr Nagpaul, I am pinning you down to one area and one change that you think will make a big difference.

Dr Chaand Nagpaul: The area would be around collaboration. We would want the section 75 regulations to be amended to make the NHS the preferred provider where it is able to do that. As part of that, there would be legislative changes on the duties of foundation trusts and other NHS providers to collaborate. We believe that at the moment, the changes for section 75 do not tally with any such duty, and we find that providers are focused on their own budgets and balance sheets, so you are talking about collaboration but not enabling it. We would want both those changes.

Q Obviously, because of the duty of balancing budgets, one of the frictions within the system is going to be where an area that is managing its budget has to collaborate with a service—perhaps in social care—that is not. Clearly, the aim of the Bill is to bring about integration.

Dr Chaand Nagpaul: Can I come back on that? At the moment, we are seeing foundation trusts thinking about their budgets, community providers thinking about theirs, and general practice as well. There is not even collaboration between the community and the hospital. No foundation trust currently has the ability to say, for example, “We will go beyond our budget and invest in the community—it may actually reduce our hospital admissions.” At the moment there is no structure of processes to enable collaboration even within the NHS.

Q Do you not think that creating the overarching ICB is meant to look at that budget in a more holistic way?

Dr Chaand Nagpaul: It is only looking at it—like sitting around the table. We have had a lot of these arrangements in the past. Until you actually change the duty of a foundation trust to collaborate, so that its board meetings are no longer focused purely on its own balance sheet but actually look at the good of the local community as a statutory change, we do not think this will work. It will just be aspirational.

Q My second and final question to you both is about the healthcare safety investigations body. I was on the pre-legislative scrutiny Committee for it and I know there will be a lot of support for it across the House. However, on Tuesday we heard Keith Conradi’s concerns about disclosure of safe space material. As a representative of the BMA, what is your view about that part of the Bill—part 4—and the degree to which it protects or weakens safe space, and how do you think it will affect staff engagement with the process?

Dr Chaand Nagpaul: We are supportive of the concept of the HSIB. We know that the NHS is riddled with a fear culture and a targeting of individuals for systemic failures. Based upon the aviation industry, it is absolutely right to have arrangements whereby you can learn from serious incidents, and healthcare staff, doctors and patients have a safe place where they are free, without fear, to contribute and learn from such incidents.

What is important—this is something we learned from a previous episode involving a doctor called Doctor Bawa-Garba, where there were a lot of issues around her information being disclosed—is that safe places should be safe places. They should be legally privileged. That will allow us to make the NHS safer, because I think that openness will allow us to address the systemic issues that actually make up the majority of medical errors in our health service.

Q And yourself, Sara?

Sara Gorton: The HSSIB is not an area that we have covered and focused on in our response, but like the BMA we are strongly supportive of attempts to drive a just and learning culture across the NHS. We have participated, through the social partnership forum in the NHS, in trying to spread that culture, and we are strongly supportive of the Freedom To Speak Up Guardian programme that is in operation in the NHS in England and its interaction with staff and their representative bodies.

Q But you would support, as Dr Nagpaul says, the idea that safe space should be protected?

Sara Gorton: Yes, indeed—certainly no opposition to that.

Q Thank you, Mrs Murray. Good morning to the witnesses and thank you for coming today. Dr Nagpaul, you talked earlier about unequal arrangements for private sector provision. Could you expand a little on what you mean by that?

Dr Chaand Nagpaul: Yes. If you repeal section 75 but do not allow the NHS to be a preferred provider, we believe that opens the door for contracts to be handed out to the private sector and undermines the NHS.

Although it may fall out of scope, the point is that there is every reason for the NHS to be a preferred provider. The point I am making is that the NHS really is effective and cost-effective, and allows for a population approach from providers that have accountability to local populations.

The other problem we have at the moment, unless you put in legislation to make the NHS the preferred provider, is that at the moment a lot of contracts are going out to the private sector and are affecting workforce training. In some areas, cataract operations have been moved en bloc into the private sector, meaning that ophthalmology trainees are not even seeing them, and the providers that are providing cataract operations are being paid the same sum of money but not providing the full service.

Another problem we have at the moment is cherry-picking. It has been there since 2012 and nothing in this Bill is legislatively addressing that. It means that you pay the same amount to a hospital—I am a GP and there is a list of exclusion criteria for any patient who has co-morbidities or complex conditions, so I cannot refer them there—but when something goes wrong in the middle of the night or on a weekend, they end up in the A&E of our local hospital.

That is why we believe it is really important that the Bill is amended to make the NHS the preferred provider; that is what we are referring to. We believe it will allow for a much more co-ordinated, accountable, locally focused and population-approach health service.

Q We will see what we can do about that. In your written submission, you raised concerns about private providers sitting on ICS boards. Could you just say a little more about what your concerns are there?

Dr Chaand Nagpaul: If we have a Bill that is designed to support the NHS, we just feel that it does not make sense to then allow a private provider to sit on a commissioning board. We believe that there is an inherent conflict of interest. It is really important to understand that there is a difference between the private provider and the NHS. The private provider is ultimately driven by its financial motives, and to be sitting on a board influencing the spend of money where it may have an interest is a conflict of interest. That does not apply to the NHS. A doctor from a hospital does not have any financial gain to be made. I come back to the fact that we need to support the NHS, not as an ideological principle, but because it actually works.

Q That is very clear, thank you. To play devil’s advocate, can you think of any positive reason why there would be a need for private companies?

Dr Chaand Nagpaul: No, I do not. If the NHS cannot provide a service—if it does not have the capacity—and there is a private sector contract, the private provider needs to be held to account to deliver. As I say, I think the same rules should be applied, so that if there is a complication, they need to be accountable for that complication, rather than the patient going back to the NHS, which picks up the pieces. There is a need to hold private providers to account where they are contracted to provide care, but we do not approve of them sitting on the commissioning board, which is about the use of public resources in the interests of local populations. That should be a commissioning decision, and commissioners who are accountable to the NHS and providers of the NHS should be sitting as part of that arrangement.

Q Thank you. In your submission, you also referred to concerns about some of the Secretary of State’s powers proposed in the Bill. Could you say a little more about what those concerns are, please?

Dr Chaand Nagpaul: Sure. One is the NHS mandate, which spells out how the NHS functions. At the moment, the powers allow the Secretary of State to amend the mandate. We would like that to be affirmative. We would like it to be approved by Parliament, and therefore Parliament would vote to agree changes to the mandate. That is one area.

The other concern is about the local reconfigurations. We know how politically sensitive these things can be. We would not want the Secretary of State to have disproportionate powers in those arrangements, which will often be more susceptible to political influence. We think that those need to be safeguarded by mandated clinician involvement, so that we make the right decisions about local services. It is a counterbalance: we want a health service that has local clinician leadership, but on the other hand the Secretary of State can intervene. We think that is an amendment that needs to be made.

Q Thank you. Ms Gorton, good afternoon—it is afternoon now. You obviously represent a huge range of employees within the NHS. What role do you see ICBs having in direct negotiations and consultation with the workforce?

Sara Gorton: There are a couple of points to raise here. First, we would like to see in the legislation confirmation of what we have been given assurances of in guidance and conversation—that there is no intention for any new parts of the system to undermine the existing collective arrangements and that, for the workforce I represent, the collective agenda for change agreement would apply for their staff. There is a very clear amendment that could be supported to ensure the new bodies are listed as what are called annex 1 employers in the relevant terms and conditions documents. That is one aspect.

The other aspect is the role that the provider selection regime can play—sorry, not the provider selection regime; what are called the people responsibilities, which are set out in some of the guidance materials that have only been recently published to support the legislation. They set out 10 areas relating to workforce over which the new bodies may have scope. We would like to see those areas of scope clearly defined within the legislation. That is why what I said earlier about the commitment to involve staff through the constitution promise is so important. We want to ensure that, if decisions are made at system level that undercut the role that staff have in making decisions within providers—if there are overarching decisions made about workforce—staff have an opportunity, through their representatives, to understand what the impact might be and to influence that conversation.

Q Thank you. That is very helpful. You have probably seen quite a lot of media coverage today about the possible salaries of the chief executives of the ICBs—up to £270,000. What do your members, who have had 10 years of pay restraint, feel about those kind of figures being bandied about?

Sara Gorton: We are supposed to stick to polite language in here, aren’t we? You can all probably imagine what most of our members feel. Sticking within the scope of the Bill, as we have been asked to, the relevant segue is to go back to the extension of the provider selection regime to the non-clinical services. We are strongly supportive of the measures that have been put in place to ensure that service sustainability and social value are taken into account. Clearly, however, extending those provisions to non-clinical services would create a culture of in-sourcing, of valuing all members of the healthcare team equally, and place those on an equal footing.

Q Moving on to the proposals in the Bill regarding professional regulation, do you see any risk or have any concerns about that, as it is set out?

Sara Gorton: As you have hopefully seen in our briefing, we are calling for that to be either explained in much more detail in the guidance, or dropped from the legislation. We are already seeing concerns from regulated occupations that this could lead to a sort of “regulation-lite” scenario, and there are concerns that, without it being clear exactly what the proposals would entail, this could be a hostage to fortune. We would very much like to see some clarity on that, or have it taken out at this stage.

Q I will ask the same question that I asked Dr Nagpaul about the involvement of private providers on ICBs. Is there, in your mind, any possible argument as to why it might be a good idea?

Sara Gorton: What we are more concerned about is the potential risk that, if involved in the ICBs and in the partnerships, they could exert influence over the exploratory stage of discussions, which could tilt the balance their way. That seems out of kilter when we do not have clarity that staff of the NHS will have the opportunity to be involved at the same sort of level. We are very keen to ensure that we support amendments making any of the processes, and the way that the boards meet, more transparent, and, clearly, subject to the freedom of information process.

Q Just one final question: at the moment, do you feel that there are enough avenues for trade union staff representation to feed into the boards?

Sara Gorton: At the moment, there is no explicit route through. What is set out in the published guidance documents is that the route for trade unions to be involved will be through the regional structures of NHS England and NHS Improvement. That is at a distance, and potentially after decisions have been made. Putting in a clear link, through that staff pledge in the NHS constitution and having that underpinning in the legislation, would really make clear the principle of staff involvement and engagement at the earliest stage of decisions.

Q Sara and Chand, welcome. I will try to get through three questions, but, if I run out of time, I will settle for two. We heard from a significant number of witnesses on Tuesday; you will have seen or read what they said. The overwhelming majority said that now was the right time to do this. Sara, I noticed that, in your evidence, notwithstanding the challenges you posed about some of the content that you would disagree with, you highlighted that this was due in 2019, on the basis of the original consultation, and asked why it had taken so long.

To both of you, do you think that now is the right time? I know that Chand has answered that, but this second part might apply to him: if it is not, when is the right time?

Sara Gorton: We were strong opponents of the 2012 legislation, so, in our view, the right time to do this would have been to not put that legislation through. However, we have been waiting for this batch of changes for some time. It has been evident, from 2013-14, and certainly since the “Five Year Forward View” was published, that what we were doing was having a structural workaround with people tacitly agreeing to almost ignore legislation. That is just not acceptable in the system.

Certainly, for my members who have been moved into new arm’s length bodies, moved around those bodies, and are now subject to another change, they want the security of knowing who is going to be employing them this time next year. In our view, the changes, both to the competition and procurement regime, and to clarifying how the new bodies will operate and what powers they will have, cannot wait. There are lots of other aspects that, as you can see from our briefing, we suggest could wait for future debate.

Dr Chaand Nagpaul: I want to be clear: we do not support the status quo. There is a pressing need to repeal much of the 2012 Act. However, I cannot overestimate how much the pandemic has affected us. We have not been able to be engaged, so it has to be asked: why do we need the Bill at this moment in time, when we are all absolutely overwhelmed? We know that any reorganisation of the health service means that people get distracted from their core work. The process of reorganisation takes human resource time. We have not been able to engage with this as we should, so we do not think that this is the right time.

The right time would be decided by two factors: first, when we are through the worst of what we are going through at the moment, and secondly, when the legitimate concerns we have are addressed, and there are the amendments that we would like to see. This Bill can shape the future of our health service. Get the right Bill, at the right time.

Q I have read your evidence very carefully, and your views on the 2012 Act are clear. To put in context what sort of changes—not withstanding your evidence—the BMA is and is not supportive of, which of the 1999, 2001, 2003, and 2006 Acts did the BMA come out fully in support of?

Dr Chaand Nagpaul: I am afraid I will have to let you know later, as I do not, off the top of my head, know exactly what those Bills contained.

Q Thank you. Feel free to write to the Committee. This is my final question, so that we finish on time. This relates directly to the BMA’s evidence, but Sarah may want to come in on this afterwards. You both touched on the procurement regulations in section 75 of the 2012 legislation; why are saying that NHS, or public sector, provision should be the default, rather than whatever provision provides the best outcome for patients? You highlighted the very clear view that NHS and public sector provision is the most cost-effective and the most clinically effective; it would therefore succeed anyway if the question is what delivers the best outcomes. Why preset that default?

Dr Chaand Nagpaul: First, the rules at the moment do not factor in that the NHS provides, in addition to the service, a complete, full body of care for patients. The same money would go on a hip replacement in the private sector. Secondly, there is the training element that I mentioned earlier. Thirdly, no acute NHS trust can walk away after two years—it is there to provide care to its population—but Serco was able to walk away after two years. We have many examples of private companies that have ended their GP contracts. Serco left an out-of-hours contract in Cornwall; that does not happen in the NHS. My local hospital has been there for as long as I can remember—it cannot walk away. The NHS provides accountability and duty, but more importantly, it is actually cost-effective. The staff have national terms and conditions; they provide huge amounts of good will and work above their contracts. It just makes sense to be resourcing our NHS.

Every time you take a contract away from the NHS, it is defunding the local system. We want taxpayers’ money to bolster an NHS that is co-ordinated, because we also want changes in the legislative requirements for foundation trusts and other NHS bodies to collaborate.

Q In the minute left, Sarah, is there anything you wanted to add?

Sara Gorton: What the legislation sets out is a proposal for system working. Therefore, having something that disrupts that system is potentially counterproductive. I strongly support putting the NHS first—the NHS default—into the provider selection regime that is listed in clause 68.

On a point of order, Mrs Murray. On the Minister’s question to the BMA witness about previous Acts that the BMA may have endorsed, that would clearly be out of scope as evidence. I would not want Dr Nagpaul to waste time researching an answer that the Committee could not take into account.

Further to that point of order, Mrs Murray. Would it help if I set out the context in which I believe that question relates directly to the content of the Bill? Much of what is discussed in the Bill relates to previous legislation that has grown up over time; understanding which pieces of legislation the BMA supports will help us to better understand the evidence it has put forward on this legislation, and its context.

Mr Madders, I think that the Minister has taken on board your point of order and paid attention to it. Thank you, Minister.

As there are no further questions, because we are out of time, I thank our witnesses very much for their evidence. We will move on to the next panel.

Examination of Witnesses

Professor Martin Marshall, Pat Cullen and Professor Helen Stokes-Lampard gave evidence.

We will now hear from Professor Martin Marshall, the chair of the Council of the Royal College of General Practitioners; Pat Cullen, the general secretary and chief executive of the Royal College of Nursing; and Professor Helen Stokes-Lampard, the chair of the Academy of Medical Royal Colleges—all of whom are appearing in person. Starting with Pat Cullen, could I ask you to introduce yourselves for the record?

Pat Cullen: I am Pat Cullen. Thank you for inviting me along. I am the recently appointed chief executive and general secretary of the Royal College of Nursing. We are a trade union and a professional organisation, and we represent more than 480,000 nurses.

Professor Helen Stokes-Lampard: Hi! I am Professor Helen Stokes-Lampard, and I am chair of the Academy of Medical Royal Colleges. The Academy is the umbrella body for all the medical royal colleges in the UK and Ireland; we also cover the independent medical faculties.

Professor Martin Marshall: Good afternoon, everybody. I am Martin Marshall, chair of the Royal College of General Practitioners and a practising GP in Newham in east London.

Thank you. We have until 1 pm for this session, so I propose the same timings as for the last one. I call on Back-Bench Members to indicate if they have any questions.

Q Good afternoon and welcome. I would like to ask all three panellists about the workforce projection elements of the Bill and the adequacy of those, starting with Pat.

Pat Cullen: We have yet to submit our evidence in relation to the Bill—we are currently doing that. It is very clear to us and our members that the Bill does not go far enough on accountability for the workforce. We are very clear that the workforce shortages in nursing are not addressed properly through the Bill.

Could you speak up a little bit, please? We are finding it quite difficult to hear you.

Pat Cullen: That is not normal, mind you, for a woman from Northern Ireland! I will try again. Principally, our response to the Bill is that the accountability issues do not go far enough in the Bill. We are asking for the Secretary of State for Health and Social Care to not only clearly have full accountability and responsibility for the assessment of workforce planning, but ensure accountability for the delivery of the workforce. It is not just about the assessment. We are all clear about and know about—it has been played out well—the shortages of nursing staff. We had 40,000 vacancies heading into the pandemic. We make up 26% of the workforce. Everywhere you see a patient, you see a nurse, and we need nurses. That is the only way to provide the best care for our patients. We say that the legislator at the highest level must have that accountability and responsibility for the assessment and the delivery of the workforce shortages in nursing.

Professor Helen Stokes-Lampard: The Academy of Medical Royal Colleges has worked very closely with the Government on the development of the Bill, and we have been very grateful for the opportunity to collaborate so far. We have been largely supportive of the direction of travel, but the workforce, in clause 33 particularly, is the one area where we probably still have the greatest concern. We feel that it needs to go further. That builds on exactly what Pat has said. Along with other organisations such as the RCN, we have co-signed an amendment that goes further on that.

We feel that workforce planning needs to be very transparent and collaborative across multiple organisations and agencies, but ultimately owned by the Secretary of State for Health and Social Care. It needs to take on board both the projected supply of workforce already in the pipeline and projected demand. We anticipate that the line representing workforce supply going upwards, and the line representing the demand for need and care climbing even more steeply. There is a gap between them that, at the moment, we cannot quantify. It needs to be quantified and made transparent. Even if the state does not feel it can fund for that gap, we should not be afraid of knowledge. Without knowledge, we run into the risk of repeating historical cycles of boom and bust when it comes to workforce planning. That would be our big plea to you: try to strengthen that, and please do not fear knowledge—it will help us in the end.

Professor Martin Marshall: The Royal College of General Practitioners, as members of the Academy, are completely in line with Helen’s position. There is a marked workforce crisis relating to general practitioners and other health professionals who work in general practice. Without an adequate workforce, it will be very difficult to deliver any of the ambitions of the Bill, so we are absolutely in favour of a much stronger emphasis on workforce. I think workforce planning is an oxymoron and has been for many years in the NHS. This is an opportunity to do something about it.

Q I have two questions. On clause 33, which we have just spoken about, what would be the best compromise when it comes to planning for a workforce strategy? The Bill suggests five years, and that the Secretary of State should direct Health Education England and NHS England to produce this report. Would you suggest a more frequent process? If so, how frequent should it be? What organisations should be involved with workforce planning, and how would you see that operating?

Professor Helen Stokes-Lampard: We have thought about this seriously—what would be a sensible interval? Having discussed this extensively with colleagues right across the health and care landscape, we have come to the conclusion that two-yearly feels about right. Annually just feels too intense, and it would be too labour-intensive to get meaningful data out in that period; you would run the risk of fatigue in the system. If we go much longer than two years, we run the risk of fundamental change coming into the system—another pandemic or some other national thing happening that needs to be factored in, and of which we need to be made aware. We have come down on two years, and that is the proposal that we put forward.

Every time, the work needs to look five, 10 and 20 years ahead. We need that longer-term projection. It takes so long to train doctors—that is the agency that I represent—from their entry to medical school to consultant independent practice that you need to have that time lag built into the system. That way, you can look at the totality of the workforce and ensure that you have the right interim solutions for the needs of the population.

Q Do the other organisations agree with that assessment?

Pat Cullen: Yes, we would certainly agree. We believe that annual plans are too short-term for the reasons that Helen has laid out—training nurses takes three years, and when you think about the added training for clinical specialist nurses and other advanced nurses in practice, it absolutely needs to be at least two years.

Professor Martin Marshall: We agree that two years is the right interval. I think the request of HEE to produce a high-level framework is a good start—that is correct—but it is just a start, and a high-level framework does not help workforce planning on the ground. It is right that most workforce planning should happen at a local level, but some elements need to be managed nationally. Basically, this is such an important issue for the NHS that it needs to be absolutely top priority in the Bill.

Professor Helen Stokes-Lampard: I am conscious that I did not answer the second part of your question about who should be involved. We propose that this be led by Health Education England, but it has to be done in collaboration with NHS England. We cannot look at the needs of the population without involving them. There are other bodies, too. For doctors in particular, we would argue that the Medical Schools Council and the GMC have to be involved. I am sure Pat will have similar views.

In terms of population needs, we need to look at the Office for Budget Responsibility and use the resources of the Office for National Statistics. We need to go widely on this; it is not about saying, “That is one person’s problem to sort, and then the Secretary of State signs it off.” This is a truly collaborative effort, and we need to legislate for and enable collaboration in the greatest possible sense.

Q On clause 19 and the duties on the ICBs and ICSs, particularly, in your case, around education, training and research, do you have any thoughts about who might be able to help those ICCs with their duties, and about the role of universities, which are not mentioned in the Bill? How can we integrate not just health and social care, which are the focus of the Bill, but education and training, and what needs to take place for that integration to happen?

Professor Martin Marshall: Universities have an enormous amount to offer. If we look at the way that universities have operated in academic health science networks in the current structures, in many parts they have played a really significant role. I absolutely think that ICSs give us an opportunity to bring universities into the debate.

Education is particularly important here. If the Bill is to achieve its potential of better population health, there are some massive training leads for all the workforce, and universities clearly need to be involved in that process.

Professor Helen Stokes-Lampard: To supplement what Martin has said, we have not criticised what the Bill says at the moment. For us, this is where the Bill is an enabler, and we hope it is a greater enabler that what we have currently. In that sense, the logical thing to do next is greater collaboration. The challenge with legislation is that although it can remove barriers and enable, it does not actually change culture. We need to engage with the individuals who are establishing this and ensure that the frontline educators and clinicians are on board with it to make it a reality.

Clearly, I support what Martin said about the vital need for education right across the piece. I think you will find that the universities are very much up for that and keen. It has been difficult to expand training places across nursing and medicine in short order, but it is something the universities are really stepping up to do. I think we would all argue that we want to go further and faster to deliver the best possible care for the public.

Thank you very much. We have about 10 minutes, and three people have indicated that they want to ask questions, so if we could direct our questions to one person and keep questions and answers brief, that would be very helpful, because I would like to include everybody.

Q I have a question for Pat. You have indicated some concern about the new powers regarding professional regulators and the fact that there may be changes, including the dismissal of regulators and that sort of thing, through secondary legislation. Given that those bodies are UK-wide, do you think that the Senedd, the Welsh Government in Cardiff, and the other Governments should have some input into those sorts of decisions about professional regulators?

Pat Cullen: We have had some thoughts about this across the countries—and we can learn from all of the countries, really. Of course, you will know from my accent that I come from Northern Ireland, and our regulator is a four-country regulator. In relation to the standards that are referred to within the Bill, I think our royal college will play an important role in terms of working with our regulator to look at some of the devolved responsibilities and the role that we can play in setting standards for our profession, and assisting and supporting our regulator in the setting of those standards right across the country, and obviously the other countries as well.

More recently, we have just brought out our nursing workforce standards, which apply across the four countries, and we had significant engagement in those right across the four countries. If you look at those standards being aligned in the new Bill and reading across to the new Bill, working across with our regulator and having more powers devolved to a royal college will enhance the regulator’s response to standards and the applicability of those standards, and their implementation across the countries.

Q Thank you very much, Mrs Murray. This is directed to Martin. Perhaps unsurprisingly, there is a lot of demand on representation or membership of the integrated care boards, and I think we heard evidence earlier that in my own area of Cheshire and Merseyside, if everyone who wanted to sit around the table was sitting around the table, there would have to be 63 seats, which is clearly unwieldy and unworkable. Specifically thinking about the organisations that you represent, when it comes to clinical representation, moving from the CCGs to the ICS, what do you think should be specified about clinical representation on these new ICBs?

Professor Martin Marshall: We have pushed very hard for clinical representation on the board, and I think that the acknowledgement that a primary care representative is required is absolutely right. Of course, one representative is not going to change the world, but there is something symbolic about it, and there is something about having a primary care voice that is really important. The nature of that primary care voice is interesting, because of course, general practice is a multi-disciplinary specialty, and we work very closely with our nursing colleagues, our pharmacy colleagues and a whole range of different clinical disciplines. I think that in most localities, it is likely that a GP will be the representative of primary care, most obviously because general practice has a long track record of being involved in the management of the NHS, and the onus will then be on that general practitioner to represent all of the primary care voices. As a college, just last week we had a very productive workshop involving all the different specialties in primary care, and a strong sense of consensus that we must and will work together to drive this forward.

I have a particular focus on the primary care voice—I guess that is my job; Helen might refer to other clinical voices—but it is particularly important for primary care, for the simple reason that in primary care, we deal with about 90% of the presentations that come to the NHS every day. We live in, and are closest to, the communities that we serve. We are trained to address the broader determinants of health. We are trained as doctors, as GPs, for example, but we are trained to understand the social determinants of health and health inequalities. Everything that is important about this Bill is stuff that general practice is expert in, so we feel the general practice voice is really important.

One of our biggest concerns—not so much with the legislation, but the way that this is likely to play out on the ground—is that the general practice voice threatens to be diminished as a consequence of the change in legislation around CCGs. If you look at what the boards will look like, we know that the acute trusts will still have their governance arrangements and their budgets. CCGs are going to disappear. We are not necessarily saying that that is the wrong thing, but it means that a lot of the experienced clinical leaders in CCGs risk getting lost, and we know that that is not happening in some of the ICSs around the country, but it is happening in others. The CCG staff are just being transferred into the ICSs, but there is a real risk that the leaders who have been around for a decade or two decades, who understand the nature of organisational change and understand what the Bill is trying to achieve, will get lost. We know from the evidence that the most successful integrated care organisations around the world are the ones that are primary care led, so if primary care does not have a dominant voice, the ICSs are much less likely to achieve their potential.

Q It is as though we have rehearsed, because that was my question. I was a GP manager leader in my area before coming to Parliament, and GPs have been at the forefront of developing CCGs, as you said, which followed on from the great desire of Governments to move the gatekeeper up the food chain, shall we say, in order to provide clinical leadership and—to be crude—control costs.

I would like to ask this to everybody. Personally, I think this issue of clinical representation is a backwards step in this Bill. You may or may not want to say whether you think that is true, but given that you have said that successful organisations are primary care-led, and none of these organisations will be clinically-led, let alone primary care-led, that is not rectifiable in the Bill through an amendment, I suspect. How will we ensure that these organisations are successful from a clinical leadership perspective, given the current state of the legislation, or would you be putting forward suggestions for amendments? I am sorry, but I do not think I have time to ask all three of you. Currently, CCGs are GP-led, so—

We have about three minutes, so could you keep your answers to one minute each?

Professor Martin Marshall: I speak very rapidly.

“How?” is an interesting question. Can it be done in legislation? I think there have to be some legislative levers to ensure that this happens properly on the ground. There are some examples—one in Surrey and one in Gloucestershire—where there is already a very strong commitment to a robust primary care voice, so there is something about shining a light on those examples, which others can learn from. That is not a legislative responsibility, but it is a really important one. There is certainly something about holding localities to account and understanding what is happening on the ground at regular intervals, in terms of whether those voices are present and whether they are being heard.

Professor Helen Stokes-Lampard: I would strongly advocate that everyone takes a look at the very excellent document that NHS England put out just a few days ago, which is about implementation guidance for ICSs on clinical leadership. I have to say that whoever put it together absolutely nailed it, in terms of what to do and how. There is a how-to guide there. I had no input into it, so I feel I can shamelessly give you that, because there are a lot of answers in there.

The legislation as it stands on clinical leadership does not prevent any of those things, as I understand it. That goes back to my other point about ensuring that the legislation removes barriers and is a facilitative enabler of these things. Clearly, my colleagues have more specific things about it. I just want to draw to your attention to the fact that it says that clinicians who get involved in leadership need to be supported, protected and resourced to do so, because unfortunately clinician time is expensive. That comes back to the original conversation about workforce, but we have to factor it in. The evidence is quite clear that better clinical input in all disciplines helps systems run better and be safer. It is more cost-effective, but that needs support factored in from the outside.

Pat Cullen: You will not be surprised to hear me say that the Bill does not go far enough, and we will be looking for an amendment. There absolutely needs to be a director of nursing at the top table if you are to prevent what has happened and what has gone before, where the financial balancing of books significantly impacts the decisions of that table. The only way to ensure patient safety and quality of care, and that the workforce that we deserve and need for our patients are paramount and the centre of those discussions, is to have our clinical leaders at the top table. That must be a director of nursing, not only to bring evidence on the clinical care that needs to be delivered to the table to shape each strategic decision, but to hold that person to account for our workforce and ensure that the workforce is available to provide care for our patients.

Thank you very much. We now turn to the SNP spokesperson, Dr Philippa Whitford. You have about seven minutes.

Q Thank you very much, Ms Murray. I hope to try to do two questions, so can you focus your answers? If you heard the earlier session, you will know what the first one is. If there is one part of the Bill that you could change, what would it be and what would the change be? Our job over the next couple of months is to improve the Bill, so what would get the biggest bang for our buck?

Pat Cullen: No surprise, it is the accountability for workforce planning sitting and resting with the Secretary of State. I do not think any legislator or politician should have any issue with that. It is not about accountability being forced and pushed to the frontline. Of course, frontline clinical staff will have accountability and responsibility for the delivery of care, but that needs to be enshrined in legislation, and the Secretary of State needs to hold full accountability for workforce assessment and planning, and for ensuring that we have the workforce to deliver the best care for our patients. We owe that to every single nurse in the services today.

Q Obviously, Wales and Scotland brought in safe staffing legislation, which does not yet exist in England. Of course, workforces move around, so although this is very much a plan for the workforce in England, we do not want to get into robbing Peter to pay Paul. Do you feel that the consultation around that needs to be strengthened—things such as the foundation places for junior doctors might relate more to Helen and Martin—to ensure that the Bill actually takes account of different strategies?

Pat Cullen: Absolutely, and of course we look with envy at Wales and Scotland, although Scotland is lagging behind our Welsh colleagues in terms of safe staffing legislation. We will certainly push for safe staffing legislation to be brought forward in England as well. Of course, it is no surprise to anyone that our wonderful nurses moved to industrial action in Northern Ireland to push not for pay, but for safe nurse staffing legislation. That is what is important to every single nurse who is trying to care for their patients today.

Q Thanks very much. Helen, what would you pick as your one place?

Professor Helen Stokes-Lampard: My one place is the same: the workforce issue and clause 33. It is about looking at both the supply of the workforce and the needs of the population—I think it has to be both those things. The responsibility rests with the Secretary of State.

Professor Martin Marshall: I have stated mine already: the strong general practice voice is what will make a difference. That is what will turn a currently fragmented service into an integrated one, and a service that is focused on treating diseases into one focused on preventing them.

Q This is also, hopefully, a very short, specific one—I will start with you, Martin—on the Healthcare Safety Investigation Body, and the issue of safe space disclosure and discussion after an incident. In the Bill, coroners have access, for example, and others are lobbying for access. What is your view of how tight the safe space should actually be to get staff to really engage with it?

Professor Martin Marshall: Considerably tighter than it is at the moment. I am absolutely in support of safe spaces. A culture change needs to happen here, and legislation seems to be one of the ways of trying to promote that to get us into a much happier space than at the moment.

Q Do you think there is a misunderstanding of what would be covered by “safe space”, in that it should really apply only to the evidence that HSIB gathers? It does not stop other bodies having access to medical records or doing their own investigations, which they do now.

Professor Martin Marshall: I am not sure I know enough about it to be able to answer that question, I am afraid.

Professor Helen Stokes-Lampard: The academy’s position is that we support the proposals as they are worded—we have not suggested any amendments to them. We certainly believe that putting HSIB on a more formal footing is the right thing to do. On what Martin said about safe spaces being the right thing going forward, there may be detail and finessing in the implementation of that, but no concerns have been raised with us as an organisation representing royal colleges.

Pat, before you speak, could I ask you to swivel the microphone to your left towards you a bit? We are still having difficulty hearing you.

Pat Cullen: Can you hear me now? I do not know whether it is my accent or my voice.

It is no surprise to us that the Royal College of Nursing opposes—

Could you speak a wee bit louder? I am from Northern Ireland as well and we can definitely speak loudly when we want to.

Pat Cullen: We fundamentally oppose the power of the Secretary of State to authorise disclosure, and we will be looking for amendments. We believe that we must protect whistleblowers. They must come forward. That is the only way that we can learn lessons and make sure that our services are fit for purpose, and that we learn from that, so we will be looking for amendments.

Q Thank you, Chair. Thank you to all three of you for joining us this afternoon, and thank you for everything your members have done for us in such difficult times in recent months. Collectively, you speak for tens of thousands of NHS staff and allied professionals, so a simple first question from me. Pat, you might go first: how do staff feel at the moment?

Pat Cullen: Where do I start? They feel exhausted, demoralised; they are tired to say the least, and they are very concerned about the future. Why is that? Because they do not have the workforce to deliver.

Could I just remind the shadow Minister to stick within the scope of the Bill, please?

On a point of order, Mrs Murray. How our staff are at the moment is within the scope of a Bill about the NHS, I would have thought.

Okay, but can we just make sure that we stay within the scope of the Bill?

Pat Cullen: I will try and answer in relation to the Bill. All the issues that I have just spoken about in relation to that exhaustion, the tiredness and the fact that they are not able to provide the care for their patients—there are opportunities in the Bill to correct some of those things. Again, going back—I hate to harp back to it in my Northern Ireland words—but the fact is that if we ensure that accountability sits with the legislator and with the Secretary of State, to ensure that we do not find ourselves back in this place again, with 40,000 vacancies going into a pandemic or at any other emergency situation we find our nurses in, that will absolutely assist and support. However, there are opportunities for the workforce in the Bill that we do not believe are being grasped at the minute, and that is further adding to the demoralisation that they are feeling.

Professor Helen Stokes-Lampard: I will keep it succinct. I completely agree that the clinical workforce—doctors—are demoralised, and I think anxiety would be the greatest feedback that we get: anxiety and fear of the amount of risk that is being held in the system at the moment. We are in the grip of a third wave of this pandemic, which many in the media seem to have completely forgotten about. People are dying by their hundreds on a daily basis still. This is a huge challenge. It goes back to exactly the point in the Bill about workforce planning for the future, so that we never find ourselves in a similar situation again. While we cannot predict when the next pandemic will hit, we can certainly be assured that another pandemic will come. The challenges around the climate and the global problems are going to impact on our health and wellbeing hugely, and we can plan for them now if we choose to. So, fearful and anxious, but we can do something about it. We have a unique moment in time to grasp this, and this legislation is one part of that unique moment in time.

Professor Martin Marshall: You will not be surprised to hear that morale in general practice is at rock bottom. We read about it in the newspapers every day. Surveys that we have conducted of our members suggest that 60% of GPs say that their mental health has deteriorated significantly over the last year. Anxiety, depression, suicide, ideation—33% of GPs say that at least once a week they find it almost impossible—

Order. Could we keep to referring to what is in the Bill, please?

Professor Martin Marshall: Yes, and I am going to do so. The issue here is that if you speak to GPs, because of the stats that I have just described to you, nobody is talking about the Bill.

But we are here to talk about the Bill.

Professor Martin Marshall: And almost nobody is talking about the implications of the Bill, because I guess our job is to engage clinicians with the potential of the Bill.

I am just saying from the Chair that we are here to talk about what is in the Bill and to take evidence on the Bill, so we should stay within the confines of what is in the Bill.

Q With that in mind, given the quite challenging picture that all three of you describe there, do you have any anxieties that this is not the right time to have the Bill and that, with staff anxious, demoralised and tired, a reorganisation might add to those anxieties and concerns for the future?

Professor Martin Marshall: There could not be a worse time for general practice to introduce the Bill, but I do not think that means it should not happen. It has to happen now. The NHS is ready for it, so it has to happen. The fact that general practice does not have the capacity or capability to engage fully with the implications of the Bill will mean that the Bill will not realise its full potential.

Professor Helen Stokes-Lampard: From my point of view, there is never an ideal time to introduce legislation and, certainly, in the midst of a global pandemic is on nobody’s agenda as a good time to do anything legislatively. However, the consequences of not doing it are that the integrated care systems, which are in a really vital part of their evolution and formation, will stall and therefore are far more likely to fail. So my view and the view of the Academy of Medical Royal Colleges is that we absolutely must go ahead with this legislation in the timeframe. There is never a good time to have a baby or move house, but you still need to crack on and do these things at bad times.

Pat Cullen: Same here: never a right time. If you were to ask nurses on the ground today, carrying out patient care in frontline services, they would say that anything that might improve where things are at the minute will be a bonus. But the issue is how it plays out and whether we are listened to. The professional royal colleges do represent nurses. I am here representing 480,000 nurses today. It is really important that we get this right. There is never a right time, but it is actually a great time if we do get it right.

Q I will just ask a final question in my last couple of minutes. Martin, notwithstanding what you said about a greater GP voice on boards, and similarly Pat regarding directors of nursing on integrated care boards, what else could we do to get the voice of the staff really heard in the plans generated by the integrated care partnerships and then executed by the boards? What mechanisms do you think are effective ways of hearing from the frontline what is happening day in, day out? Perhaps, Martin, you could go first.

Professor Martin Marshall: I cited earlier the example in Gloucestershire. It has very purposefully built a primary care subgroup of the board in order to provide that clinical expertise and that clinical sounding board to everything that goes on at board level. That seems to me to be a really good way of moving on from a single GP on the board—which will be helpful but will have limited impact—to actually making a real difference on the ground. The real change, of course, will not happen at ICS level anyway. It will happen at local level; it will happen at the place level. That is where real change in integrated care, from the patient perspective, will be enacted and will be felt.

Professor Helen Stokes-Lampard: To build on what Martin has said, there are great examples of clinical panels, which is essentially what we will be talking about. That is a model that works extremely well and which can be broadly based and covering a huge range: primary and secondary care—the whole range of specialities. But in the same way, citizen panels have become something that can be hugely helpful as well. I am very anxious that we also hear the patient voice in the decision making at community level.

There has been a covid culture of creativity. When there was less top-down insistence on following direct process at the start of the pandemic, a lot of creativity was allowed to flourish. I feel we need to capitalise on that culture of creativity. These kinds of panels are exactly the sort of output that has come and they have been hugely beneficial. And, of course, the move to greater digital working has meant that we have been able to reach people that we have not otherwise been able to get. Clinicians leaving the clinical environment to participate has become easier when they can do so remotely. There is a dividend that we should build on.

Pat Cullen: To add to that, I fundamentally believe that the patient voice must be heard in those structures beneath the board. That is how we will really influence and move forward in terms of what is required, and those voices will feed into the population needs assessment at local level. But there needs to be a nurse involved in each one of those structures that feeds right in through to the director of nursing that sits on the board, and that is how you will hold the accountability line up and down.

Q Thank you, Mrs Murray. I will endeavour to be relatively brief, as I am conscious of time.

Welcome and thank you very much for your evidence this morning and your frank answers to the questions posed. I want to ask a question in the context of what a number of you have raised about the different voices and the extent to which they need to be represented at the different decision-making levels of the new structure. We heard from previous witnesses, for example in the context of public health voices also, about the value that they add. The principle behind this legislation is that it is permissive rather than prescriptive. Therefore it is possible to have a lot more voices; there is only a de minimis level specified as prescribed. What is your view as to whether the appropriate balance between permissive and prescriptive has been struck in the Bill? If you think it has not been, where do you think the balance between permissive and prescriptive has been missed? Shall we start with Pat and then work our way along?

Pat Cullen: I have said very clearly that I believe the nurse needs to be represented at the board, and that needs to be an executive director of nursing. That needs to be prescriptive; it is not good enough to have it placed within mandatory guidance, it needs to be within the Bill. That is a red line for our nurses, and it will remain a red line, and we will be putting it forward as a red line.

Professor Helen Stokes-Lampard: I am going to be slightly subtler with what I say about this. I think the legislation, as drafted at the moment, is very enabling, and the implementation of it is where the great improvement in how we deliver care will come. I do think it is permissive, and I do think that it is enabling, and I completely understand my colleague’s desire to include specific words relating to nurses, GPs and whoever. What is vital for me is that the clinical voice is loud, clear, and can be influential. That is about implementation, culture and behaviour at a local level. Once we have the words for the final legislation, it is a question of how on earth we deliver it and support people to do it well, and how we learn from the best practice that is out there. That would be my—and our—view.

Professor Martin Marshall: In my 30 years as a GP, I cannot think of a single piece of legislation that has directly changed my practice on the ground. What I can see is the extent that legislation sets a tone and a culture within which clinical care is provided. I think this Bill is appropriately permissive, but, given the variation in all the challenges that we have identified, it needs to be permissive with really good oversight to ensure that the consequences of implementation do not lead to dramatic variation across the country.

Q Thank you. I have three minutes left, so I may try a follow up. That is really helpful, and thank you again for the candour of your answers. Much as it may sometimes pain us in this place, we do recognise that legislation can be an enabler, but we cannot sit here and solve problems on the ground simply by legislation. I sat on a PCT board many years ago, and the culture and the working relationships were almost more valuable than the framework that sat around them.

Going back to Pat’s evidence, but also to all of you: we have heard in our evidence today, and we heard it on Tuesday, a lot of different, vital parts of the system arguing the case for why they should be represented in a prescriptive way. Equally, we will have others arguing that a committee beyond a certain size becomes less effective. In terms of numbers, we have set a minimum. You are entirely entitled to say that you do not have a view on this, but how would you see the balance being struck between different groups making the case for representation, but, equally, having an effectively sized decision-making body? We will start with Martin, and then work backwards.

Professor Martin Marshall: I am glad to say that I do not have a view, but I do think that the boards should be small in order to be effective. They need to listen to advisory groups and sub-boards below them; it is the structures below the board level that will really make the difference.

Professor Helen Stokes-Lampard: Formally, the Academy of Medical Royal Colleges does not have a view. Personally, I have chaired boards from as few as five people, through to boards of 70 people, all of which can be hugely effective if managed well. However, the larger the board gets, the tighter the management has to be, because it is harder to get voices heard and for everyone to feel represented. Essentially, I am saying the same as Martin: smaller boards are generally more effective at getting through the agenda, but there has to be a high degree of trust in those that are actually on the board, and strong lines to sub-groups, for them to function with maximum effectiveness.

Pat Cullen: The board needs to comprise the right people. It is not about numbers; it needs to have the right people with clinical focus and patient care driving the outcomes for patients, and it needs to make sure that it does not develop a financially focused agenda. As director of nursing I have been there too many times: the table loses focus on the patient’s voice and needs. There needs to be a clinical focus and the right people at the table.

Thank you very much. As there are no further questions, I thank our witnesses for their evidence. That brings us to the end of our morning session. The Committee will meet again at 2 o’clock this afternoon to take further evidence.

Ordered, That further consideration be now adjourned. —(Maggie Throup.)

Adjourned till this day at Two o'clock.

Health and Care Bill (Fourth sitting)

The Committee consisted of the following Members:

Chairs: † Steve McCabe, Mrs Sheryll Murray

† Argar, Edward (Minister for Health)

† Churchill, Jo (Parliamentary Under-Secretary of State for Health and Social Care)

† Crosbie, Virginia (Ynys Môn) (Con)

† Davies, Gareth (Grantham and Stamford) (Con)

† Davies, Dr James (Vale of Clwyd) (Con)

† Foy, Mary Kelly (City of Durham) (Lab)

† Gideon, Jo (Stoke-on-Trent Central) (Con)

† Madders, Justin (Ellesmere Port and Neston) (Lab)

† Norris, Alex (Nottingham North) (Lab/Co-op)

Owen, Sarah (Luton North) (Lab)

† Robinson, Mary (Cheadle) (Con)

† Skidmore, Chris (Kingswood) (Con)

† Smyth, Karin (Bristol South) (Lab)

† Throup, Maggie (Lord Commissioner of Her Majesty's Treasury)

† Timpson, Edward (Eddisbury) (Con)

† Whitford, Dr Philippa (Central Ayrshire) (SNP)

Williams, Hywel (Arfon) (PC)

Huw Yardley, Sarah Ioannou, Committee Clerks

† attended the Committee

Witnesses

Richard Murray, Chief Executive, The King’s Fund

Nick Timmins, Senior Fellow, Policy, The King’s Fund

Nigel Edwards, Chief Executive, Nuffield Trust

Dame Gill Morgan, Chair, Gloucestershire Integrated Care System and NHS Confederation’s ICS Network Advisorate

Louise Patten, ICS Network Lead, NHS Confederation’s ICS Network Advisorate

Ed Hammond, Deputy Chief Executive, Centre For Governance and Scrutiny

Andy Bell, Deputy Chief Executive, Centre for Mental Health

Sir Robert Francis QC, Chair, Healthwatch England

Stephen Chandler, President, Association of Directors of Adult Social Services (ADASS)

Gerry Nosowska, Chair British Association of Social Workers

Public Bill Committee

Thursday 9 September 2021

(Afternoon)

[Steve McCabe in the Chair]

Health and Care Bill

Examination of Witnesses

Richard Murray, Nick Timmins and Nigel Edwards gave evidence.

We are going to hear from Richard Murray, chief executive of the King’s Fund, Nick Timmins, senior fellow, policy, at the King’s Fund, and Nigel Edwards, chief executive of the Nuffield Trust. Thank you very much for coming. Could I ask each of you in turn to introduce yourself for the record?

Nigel Edwards: I am Nigel Edwards. As previously stated, I am the chief executive of the Nuffield Trust.

Nick Timmins: I am Nick Timmins, a senior fellow at the King’s Fund.

Richard Murray: I am Richard Murray, chief executive of the King’s Fund.

Q155 Good afternoon, Mr McCabe, and good afternoon to each of our witnesses. I am Edward Timpson, the MP for Eddisbury, in Cheshire. I want to start by contextualising the discussion about the Bill, particularly off the back of the pandemic and with regard to the timing of the Bill and the issues that it is trying to resolve, which perhaps have been highlighted even more by the demands and pressures that have come through over the last 18 months. Do you think that this is the right time to be taking forward the principal measures in the Bill, particularly around moving from competition to a more collaborative approach and the integration that it is looking to achieve through many of the measures that we have seen with the integrated care system, board, partnership and so on? I will start with you, Richard, and then we will move along the panel.

Richard Murray: There is obviously a risk with any large-scale transformations, and particularly ones in the NHS, that they will cause too much disruption, and they distract people from the day job. I think that is the clear case against. If I may, I will just say a few words, though, on the case for. The existing system already causes disruption, so there are complicated workarounds; there are procurements being done that do not really need to be done. I would not underestimate the fact that there is a headwind in the system from trying to apply the 2012 legislation. There was a real head of steam, coming through covid, of people working together, trying to make this system work, still having to deal with some of those workarounds and still having to deal, sometimes, with doing things in an emergency that you probably would not be able to do in peacetime, so to speak.

The key thing is to try to keep the disruption to a minimum—wherever possible, and particularly for staff, to keep that degree of unnecessary churn down. I have to say, unfortunately, the NHS is quite good at doing large-scale churn without too much benefit. But I think on balance that as these changes are already under way and there are problems with the previous system, stopping now would be more disruptive than simply carrying on.

Nick Timmins: I do not want to take up a lot of time. I particularly agree with that last remark: stopping now would be worse than carrying on. A lot of this is already happening. We have been merging clinical commissioning groups ever since the new system came in in 2012. It is sort of completing a journey. You may not be entirely happy about all the arrangements around the different sorts of board and what have you, but to stop now, I think, would be not sensible.

Q So it is a natural progression from what is happening practically.

Nick Timmins: In large measure.

Nigel Edwards: I do not have anything to add, given the time. I agree with everything that has been said.

Q Do you have any thoughts on the new HSSIB and its powers, which are set out in the Bill? I know that you are likely to be probed further on this later, but do you have any thoughts on how it will be implemented, the investigatory powers it will have and the safe spaces and protections it can give? Do you have a view on how it will sit with existing legislation on the protection of whistleblowers?

Richard Murray: I am afraid that is not an area we have focused on—sorry.

Nigel Edwards: Likewise.

Q I have three obsessions with the Bill, some of which I have shared with you. First, on local governance and accountability, I have tabled an amendment to follow the logic of the Bill and make accountability local rather than going via some obscure route to the Secretary of State.

Secondly, there is the treatment of capital in the system and how local communities, healthcare systems and trusts will be able to develop estates and capital planning. The third obsession has completely eluded me for the moment. It is generally about the tariff—that may be your subject, Mr Edwards—and how the vague nod to a new tariff framework in the Bill is working out. You may be more privy than the Committee to the details on how that might work out; it is about the flow of money within the system. Would you like to start, Mr Edwards, on governance, tariff and capital?

Nigel Edwards: Richard may be able to give a more up-to-date account on capital. You will be aware that the mechanisms for the allocation of capital in the NHS are a little arcane and somewhat out of date. There have been various attempts to update the mechanisms. Richard has been looking at this and can perhaps tell us more, but my impression is that it will flow following the allocation formula for revenue. There will still need to be a tariff. Despite the fact that there is integration, a tariff allows you do to a number of useful things. Certainly, patients will flow between different ICSs, so there will need to be a mechanism to account for that. It is also quite a useful budgetary tool, so in terms of financial control, it is probably quite important that the tariff is maintained.

We have been promised guidance on the flow of funds more locally, but we have not yet seen it. My presumption is that there will be a negotiated process rather than just a straight use of the tariff in the way that we have seen up until now, with variations on block contracts, maybe using the tariff—or, more likely, the historical budgets—as the starting point. The business-as-usual capital, as opposed to major capital projects, remains as it always has been. Although it is subject to some review, at the moment I do not think a major change is proposed for it, but Richard probably knows better.

Nick Timmins: I have nothing particular to say about capital. I do think you need to retain a tariff—not for everything, because in some areas of healthcare it just does not work, but for electives and those sorts of procedures. That has two advantages: it means you need to understand your costs to construct the tariff in the first place so it is a driver of efficiency, and, equally importantly, it gives you a benchmark price with which to negotiate with the private sector whenever you do outsource some operations and procedures. You are able to say, “This is what is costs us, so this is what we’ll pay you.” If you do not have that, you are subject to a seller’s market and can be charged what you like because you do not know what your own costs are.

Richard Murray: On the flow of money, we are expecting revenue allocation to ICSs based on the current formula, trying to reflect need, inequalities, deprivation and age. The uncertainty is then how much those ICBs will allocate down to place level on a local government footprint. The expectation is that quite a large proportion of that funding—general practice, community services, quite a lot of mental health, and some acute services, too—will go down to that level, but none of that is in the Bill. The allocation to ICSs stops at that point, and as has been said, you need a payment mechanism to get the money off what are, effectively, commissioners and over into providers.

The changes to tariff are mostly about flexibility, so it should still be transparent; you should still be able to work out what people are being paid, which I think is important, and you should be able to benchmark between different providers, but instead of paying for each operation and each widget bit by bit, you can have formulas that try to reflect fixed costs. You can do it in a different way that adds some flexibility into the system, which I think is important when you are trying to bring providers and commissioners into common alignment over where the money is going. Tariffs had the problem of setting them at each other’s throats sometimes, because every time someone was admitted to a hospital you would get another payment, so commissioners wanted to keep it down and providers wanted to keep it up. There is the chance to try to align some of those incentives, but there is still a lot of gap around what actually will go down to place and what will determine it; of course, again, the budgets need to be equitable.

Nigel Edwards: Richard, if I may, I think a very important point that ought to be made here is that because the allocations will now shift from 100-plus clinical commissioning groups to 42 ICSs, the variations between them will be evened out. There will need to be some way of recognising the fact that within an ICS, you have very different patterns of need, which at the moment are recognised by the allocation formula, but in the future will not be. The money will be received by the ICS, so I think there is a question there. I know that local authorities—and, indeed, GPs and primary care networks—will want to say, “If we are in a particularly deprived area and we have historically had higher funding to recognise that, we would expect that to continue.” There ought to be a line of sight from the national allocation formula based on need to the money that is received by our locality.

Sorry, Richard. I thought you made a really good point.

Richard Murray: That is absolutely all right. On capital, the Bill does not really change the way that capital works in this system. The only difference is the ability of the Department, through NHS England, to cap the spending of foundation trusts, which they have not been able to do in the past. There are some limits around them being able to do that, but it gives an additional lever at national level. Having said that, the way that capital is working in the system has changed fundamentally already: some capital goes through an allocation system, a bit like the revenue funding, and I am leading a review for NHS England now on how that money flows.

The bit that I think is really uncertain is how the big hospital schemes get picked. That is the bit that looks very different. Obviously, there is a manifesto commitment. There used to be a process by which it was determined whether providers could afford to repay—if they could do it through loans, or if there was a need system. That is now going off in a completely different place, and I think that is the bit that is not quite clear. How does that work within this system? Who gets to choose how those projects get picked, so to speak? That is the big change but, again, it is not actually in the Bill; it is being done under the existing rules.

I am really sorry, Karin, but I think we have to move on, because we have about seven minutes left for Back Benchers, and three indicating. Jo Gideon.

Q We have had a pretty large consensus across a large number of organisations that the Bill is welcome as an enabler. Also, earlier this morning, we had a comment that no Bill has ever changed people’s behaviour. To what extent do you think the Bill will enable people’s behaviour to change, in terms of how partners work together at a local level?

Richard Murray: It will certainly make it easier. You remove some of the unnecessary impediments that have got in people’s way and pushed them into complex workarounds. It creates a structure through ICBs and integrated care providers to bring people together, so in that sense, it enables these things and makes them easier. However, if I am honest, you could still have NHS England and the Department deciding to run everything through ICBs and making them behave an awful lot like NHS bodies of the past. It enables those things, but the legislation by itself cannot prevent some of the older behaviours from living on. That is why implementation and what happens afterwards is critical, to try to ensure that it delivers on the things that I genuinely think it is trying to do. There is a heavy weight from the past of very centralised control that focuses very much on the independent republic of the NHS. That is the cultural issue that the people who will have to implement this will have to work against.

Q How might we implement the changes that you suggest?

Richard Murray: I would really ensure that local government is part of this. It is an independent voice, and has already been a useful counterweight to some of those centralising forces, as local government comes closer to the NHS. Ensure that people from the voluntary sector are there. They do not follow the orders that come out of NHS England, so you are putting people directly into the system who carry some of that independence and are looking out fundamentally to their local communities. That really is the strength of some of the ICP structures—that you have those people round the table and, indeed, some of them on the ICB itself. Really invest in that place-level work. That is where a lot of the excitement will come from working with local government, and again with the voluntary sector and primary care. Do not get too focused on the ICS as this interim middle step, because it is quite distant from where a lot of the action goes on.

Nigel Edwards: It is not just upper tier local authorities that have an important voice in this. I think that Richard is right: a lot of the most interesting and bigger changes are likely to happen at the place level. It is probably the case that quite a lot of legislation has not really affected how patients are cared for or how professionals work. In some senses, that is not a bad thing. I think this does remove some of the behavioural oddities of the hybrid market and other systems that we had.

It will introduce some other hazards, in particular—Richard sort of referred to this—the slight danger of ICSs becoming inward looking, and some organisations, and the independent and voluntary sector, being excluded and not feeling that they have a voice. The challenge that local authorities can bring to that will be important, as will behavioural change from NHS England and some of the regulatory machinery, but you cannot legislate for that. That is a cultural change that is probably beyond the scope even of legislators.

Nick Timmins: Yes, and you can see that in evidence that you have already heard about the construction of the board and the partnership. It seems clear to me—you have heard from the Local Government Association—that some local authorities were happy to join a single board and others felt that that was too much of a loss of sovereignty, which is why we have ended up with this slightly complicated system of an NHS board and a partnership board. Probably, in an ideal world, it would have been better if it was one, but you have to live with what people are prepared to do.

Q Nigel Edwards, you mentioned the word “reconfiguration” earlier. In an ideal situation, from your point of view, how would you see a reconfiguration decision being reached, and how do you balance that with the need and expectation for ministerial accountability?

Nigel Edwards: The current system dates back to Andrew Lansley, who set up four tests. Do not ask me what they are. I can look them up, but I cannot remember them. However, they were good. They involved local people and clinical support. You had to make an evidence-based case. Then there was a process that involves local stakeholders, and then there was the opportunity for review by the Secretary of State and referral by local authorities and the independent reconfiguration panel, which has been a remarkably longstanding innovation, given the way that NHS organisations are formed and then abolished. It has done, I think, a very good job.

The current system seems to me to work quite well. The Secretary of State still has a say, particularly around controversial decisions, but they do not get sucked into every small reconfiguration and change. You also do not have a point where there is an opportunity for local participants to say, “I’m not going to contribute to this conversation any more. I’m going straight to the top,” and undermine people working together locally. I am of the view that the current system works quite well. I think we said to the previous Secretary of State, “You need to be really careful what you wish for. You may think that your intervention is going to help to move things along and improve innovation. It’s quite likely, from both previous experience and experience in other similar types of systems, to have the opposite effect.”

Richard Murray: I would not disagree with anything that Nigel said. Also, the clauses in the Bill as they stand at the moment are really, really unhelpful. There may be things you could do to make reconfiguration easier, but I think they would be working around the margins of what Nigel said. It would not be wholescale intervention without limit by Ministers in local decisions—that would mean any change, of any service, could go up to the Secretary of State. Also, if you need to make an emergency move for an operational reason, you would need to write to the Secretary of State in advance—you kind of think the clue is in the fact that it is an operational crisis. I think that the legislation as drafted would not give Ministers what they want, so I really think it is not helpful at all.

Nick Timmins: Can I just add to that? I think it is really dangerous for both Ministers and the NHS. Not many people know about the Independent Reconfiguration Panel. It has worked very well. It has dealt with about 80 controversial cases. It quite often suggests some amendment, and the Secretary of State does not have to take its advice, but the Secretary of State almost invariably does take its advice. I think that if we end up with lots and lots of reconfigurations hitting Ministers’ desks, Ministers will come to regret that. If you listen to the views of previous Secretaries of State, they almost always say, “It’s ludicrous we ended up having to make a decision about what was going to happen”—in Nether Wallop or wherever—which was the case before the Independent Reconfiguration Panel was around.

Q I want to touch on the King’s Fund’s comments in its own white paper in which it welcomed the Bill’s removal of the “cumbersome competition rules” that were introduced in the 2012 Act; and to discuss some of the consequences of competition and why it is welcome that we remove that; and to ask this question. Are there are any unintended consequences from also introducing the duty on the triple aim in commissioning decisions?

Richard Murray: There are a couple of things around competition. Probably the most obvious one is that it never really worked. A lot of care, particularly urgent or emergency care, is not an area for choice in the first place, so you are already dealing with a fairly specific part of the health service and drawing an awful lot of attention into that one element of the service when a lot of the interest is in care for people with long-term conditions and how you stop overuse of A&E and emergency services. There are lots of examples of things, particularly uncertainty around competitive procurement. Commissioners were anxious about where they stood in law so they used, and probably overused, competitive procurement.

I know from speaking to some commissioners that they sometimes felt slightly powerless to influence the provider side so they would put it out to procurement instead. There was very little sign that all the effort and bureaucracy that went into that really did any good at all. Let us step away from that and enable more co-operative working, to try to get the kind of change that we need for long-term conditions, for the real health conditions that this country faces. I should say that a lot of the academic evidence has found no benefits of competition, so not only was it not a helpful thing, it just did not seem to work—probably reflecting the fact that we have such shortages in this country. Competition works only when there is a meaningful choice.

On the triple aim, you would not want the system to get tied up in a new round of bureaucracy, form filling and ticking boxes, to show that it has duly considered the triple aim. I think it is also important to make sure you do not lose the issue of inequalities from the triple aim. I would not want to exaggerate: does legislating a grand vision make people do things differently on the ground? I think it is helpful to remind NHS providers and others that absolutely they should be thinking about the quality of care; absolutely they should be thinking about value for money and making sure they are efficient. But they also have a duty to the health of the wider population. You can then, through that triple aim, bring the different parties in this system closer together, and I think that for some non-executive directors and for governors, it is quite helpful to know that they are all working in the same direction. So I would not exaggerate the kind of change it would bring, but I think it is a move in the right direction.

Nigel Edwards: Can we just nuance the competition point? Actually, there were two elements to the competition regime. One was the very formal going out to tender and big, bureaucratic procurements—often resulting in the reappointment of the previous provider at significant expense. But the other component was patient choice—for diagnostics, for maternity and for elective surgery. I think that dynamic has benefits. One of the slightly worrying things in some of the plans produced by the ICSs’ predecessors—the STPs or strategic transformation partnerships—was a wish to “repatriate” work, as they called it, which meant to bring work back from providers outside their patch into their own. That was not necessarily a good thing; patients should have the opportunity to have a choice of provider and, particularly in the case of specialised services, one would be concerned about people saying, “Let’s grow our own services locally,” rather than, “Let’s use centres of excellence.”

The maintenance of patient choice, and ensuring that ICSs do not act to limit patient choice, particularly for those patients living on their margins, is quite an important dynamic; almost all ICSs have borders with someone else, and patients naturally flow across them. People want to be able to make choices, because they have an existing relationship with a provider or because they have a relative who lives nearby and could care for them while they are there. There is international evidence that that dynamic has a beneficial effect on providers’ behaviour.

Q I will start with you, Richard, on tariffs. I have a background in the NHS. I and colleagues south of the border know of people doing outreach work from a hospital trust into a community. They developed services that were successful in reducing admissions, but sometimes the service was shut down precisely because the hospital’s income disappeared. I will come to your colleagues, but are you comfortable that the funding going into the ICB will give that integrated vision of how money is spent, to ensure that people who can be supported or treated by a community project do not end up in hospital just because that is the way the ICB generates money?

Richard Murray: That is a very fair point; it did create that tension within the system, because more activity was what made you successful and gave you your bank balance. The flexibilities that the Bill gives to step away from those more mechanistic tariffs that pay for activity should enable that, with two caveats. First, much of this will come in guidance from NHS England about exactly how this will work; there is clearly not enough detail in the Bill to do that, and why would there be? That still needs to be worked through.

Secondly, it is quite complicated to get right; this is a very difficult thing to do, and one of the pointers we see in some other countries, such as New Zealand, is a focus on everybody working together and not getting too caught up in trying to divide up the pie between competing parties. Again, that is where things such as the triple aim may help to keep people’s minds focused on the purpose, which is good quality care, value for money and a healthy population. There are more flexibilities in this system to do that, so that we do not get the kind of perverse incentives we have seen in the past.

Q Do you think there will be a friction where, say, a foundation trust has had good financial management and a budget that is not too bad is asked to work with one that has been struggling—particularly in social care, where we are looking for integration?

Richard Murray: I think there will need to be a change in culture here; it is almost inevitable that if you look within different ICSs, you will find extremely financially successful institutions next door to some that are deeply troubled and that are facing problems in community services, general practices and other services. There will be a need for a culture change, but one that does not lose sight of the fact that you want organisations to be well run. You do not want to end up with some of the weaker organisations thinking, “I shall now pass this problem on to my big brother down the road who has very deep pockets.”

You need to try to maintain the right incentives and support for institutions to run themselves well, to keep the value-for-money element of the triple aim, while also being able to move money around the system without getting caught in silos such that the acute trust has all the money and mental health does not. We need to be able to begin to move money across those different boundaries, which the old financial system did not help us to do.

Q Obviously, the idea is that the ICBs would have that vision and power.

Richard Murray: You would hope that the ICBs would have that power and the ICPs would try to set the direction. For many of the really tricky pieces between community services, general practice and social care, it is probably more at place; the ICBs are often so big that they are unlikely to get directly involved in those decisions. They can set the framework and try to ensure that in some sense it is working as a whole, but many of those decisions will come down at place level.

Q Nick?

Nick Timmins: I have little to add. This is really an issue of behaviour, culture and financial flows. It is not something that the Bill can lay down or dictate.

Q But obviously the tariffs created some problems.

Nick Timmins: The tariffs definitely caused some problems. Changing the way the tariff is used is very important, but that does not mean that you should get rid of it entirely.

Nigel?

Nigel Edwards: I agree with all of that. This gives a vehicle that will allow many of those perverse incentives to be removed. People found ways of working round them previously, but this simplifies things. Richard made the point that it is definitely the case that some trusts, particularly acute trusts, have done very well out of the tariff. They will find it quite painful to make the adjustment, but that is not a reason for not making the change.

Q Perhaps I can start with you on this question. We obviously hear about the ICB, which appears to be the power base, and the ICP, which is more flexible and will put forward an agenda and an idea. How do you think the power balance or imbalance between those two is going to work?

Nigel Edwards: I have sat with a number of different geographies and tried to work that out, and it is probably going to be different in different places. Some of the ICSs are quite geographically coherent and have a lot to do with each other. For others, such as Cheshire and Merseyside or BOB—Buckinghamshire, Oxfordshire and Berkshire West—there is less in common at the strategic level. It will be quite different in different places, particularly where there are powerful upper-tier local authorities within ICSs. They will want to have a strong voice at the place level.

One of the virtues of the legislation as currently formulated is that it allows some flexibility, and it allows people to tailor some of those relationships to fit their local geographies. But I would see the partnership part of this having a very important role in shaping the overall strategy. For quite a lot of people, the risk is having too many meetings and too many partnerships. It is very important that the partnership board sets the agenda and then the places and the ICB get on with it.

Q So the challenge you see is more about things like footprints and boundaries making it clunky in some areas. It is about trying to get that right.

Nigel Edwards: Yes. The NHS has always had a bit of an obsession with neatness and uniformity. If there is one thing that I have learned from working with these different ICSs, it is that they are very different in terms of their physical, political and psychological geography. Trying to fit a standard model of governance to them would be a mistake. We need to hold them to account for how well they are implementing their plans and how far they are improving outcomes for their population. We need to know whether they are making the best of the money that we are giving them, rather than whether they are conforming to a centrally designed governance model that will work on average, and that will therefore work nowhere.

Q Good afternoon, and thank you for coming today. You will have heard the Prime Minister’s statement on Tuesday. He referred to a White Paper on integration. As the Bill is primarily concerned with integration, perhaps you could save him some time by pointing out the deficiencies in the Bill—in terms of integration—that need to be included.

Nigel Edwards: This took us all somewhat by surprise, I think it is fair to say. Richard may have had a different briefing from the Department of Health and Social Care on yesterday’s announcement. I picked it up on reading the document; it was not pointed out to me. I think I read it slightly differently. It seemed to me that the plan was likely to be a formalisation of all the activities that are currently going on, rather than a new direction of policy, but I am probably the wrong person to be asking about that. If it is not that, it would not be very helpful.

Richard Murray: One of the things the documentation speaks about is the planning of the health and social care workforce. You asked where I think the Bill is deficient. One example is its inability to help with the very poor track record, over quite a long time, in planning the health and social care workforce—hence all the problems that we have with the workforce right now. There is a nod in the White Paper to that. It may only be that the crossover between those two workforces is not the fundamentals of the numbers that go through them.

Otherwise, I really hope that the White Paper is not about further legislative change. It might be about setting out, for example, the outcome measures that would really work for an ICS, meaning that it will cover both critical issues for the NHS and critical issues for health, public health and social care, to make sure that you have that rounded and meaningful measure so you know who is doing well. If it is another round of legislation, I must admit that I would pause before saying whether that is a good idea, with the exception of the workforce issue, which remains the critical factor here.

Anything to add, Nick?

Nick Timmins: The workforce does need to be tackled—it is just a glaring hole in all this. The NHS has plenty of policy at the moment; it has had an eight-year drive towards better integrated care—that is what the Bill is focused on—and a lot of that will not come through legislation, beyond what is in the Bill.

Q Nigel, can I ask you a specific question about tracking where the money is distributed within an ICS, which you referred to earlier? You have already mentioned the Cheshire and Merseyside ICS, which my constituency falls within—what was 12 CCGs moved not so long ago into one massive beast, for want of a better description. If I wanted to hold someone to account on whether the money was distributed on a fair and equal basis consistent with historical distributions, who would I speak to and who would be responsible for that?

Nigel Edwards: Each ICS is supposed to have a chief finance officer—a director of finance—and an accountable officer. That is the starting point. I think the question to ask them would be to what extent they are spending money in a way that reduces health inequalities and improves outcomes in an equitable fashion—I think they would want to do that. One of the things that has very much struck me in my conversations with ICSs—this is very much influenced by local government, which will be a powerful advocate for this, as will primary care networks—is that quite a lot of people will be scrutinising this. The person to ask who is clearly accountable for answering that question is the accountable officer of the ICS.

Of course, ICSs do not have a legal obligation to distribute money below place level. You might not want to do that, because there is a need to be flexible, and sometimes you might want to spend more in a particular area if there is a sudden strategic priority, but over the long term, the expectation is that those accountable officers should be able to demonstrate that they are spending money in ways that relate to the objectively assessed needs of their populations.

Q Thank you. I have a question for all three of you. The Secretary of State is seeking some quite broad powers of direction. What problem do you think he is trying to fix by giving himself those powers?

Nick Timmins: I think that is exactly the right question to ask. What have Ministers not been able to get the NHS to do without the powers of direction that he is seeking? When they were presented, it was as though the NHS was somehow unaccountable when, as I am sure you all know, Ministers can tell the NHS what to do through the mandate. The difference in the current system is that NHS England has to agree that what it is being asked to do is reasonable. If NHS England does not think it is reasonable, resourceful or doable, it can object, and the Minister then has to come to Parliament and explain why he is, in effect, instructing the NHS to do something. A measure comes before you and is subject to a negative resolution. If someone rejects it, it can be debated, so there is a perfectly good mechanism there right now. I think the really, really important question is: what are Ministers not able to get the NHS to do that means that they now feel the need for new powers of direction?

Does anyone wish to add to that?

Nigel Edwards: I have no answer to that question.

Richard Murray: If the reason is not made clear, you end up starting to get worried and suspicious: “Are they trying to direct money towards one part of the country rather than another and overturning the allocation mechanism? Do they want powers to intervene in procurements?” Those are all the things that you would not want them to do which, to be honest, health Ministers generally have not done anyway. Even when they had the powers, they tried desperately not to get involved, because it is extremely poor governance and extremely poor value for money. However, without that explanation of why they want it, the temptation is to start worrying about what they want the power for.

Some of the behaviours could be governed through the framework agreement, or they should be able to be. You have the mandate that sets direction over the short to medium term, but the framework agreement also sets out the way NHS England should work with other parts of the system, so there are other things that you can use within this system. As it stands, and if it stays as it is now, to provide comfort to people, the temptation is to start listing the things that Secretaries of State should not direct—they should not direct allocations to individual parts of the country; they should not interfere in procurement decisions. You end up with quite a long negative list, but I would probably rather have a negative list than no list.

Nigel Edwards: The problem with negative lists, of course, is that you will forget something.

Q Thank you, Mr McCabe. I will only ask the one question, because I am conscious of time and keen that Opposition Front Benchers have their time. My question goes to the heart of this, and I am afraid it is a subjective question, but with all your expertise in this space, your answers will be instructive. In framing this legislation, we sought for it to be both evolutionary in reflecting the changes that are already under way, and permissive rather than prescriptive. Do you feel we have struck the right balance in terms of permissive versus prescriptive? If not, where is that balance missing? Shall we start with Nigel, and then work along?

Nigel Edwards: I think we have shared our anxieties about the reconfiguration and direction powers. In terms of what this does to the organisational architecture, it seems to me to strike the right balance between permissive and directive.

Nick Timmins: I would echo that. I have major reservations about the new powers of direction and, I think, major reservations if you build in reconfiguration service changes. The good thing about this—it has been the good thing about the development of the integrated care system so far—is that it is quite flexible. That is unusual in the NHS’s history: we tend to come up with very prescriptive solutions for what the system should look like everywhere, when in practice the circumstances are different, so I think the balance is pretty good.

Richard Murray: You could easily criticise the degree of permissiveness; you could criticise the degree of direction in there. The question should be, “Can anyone come up with a better one?” We have not been able to do so, so I think it is a balance well drawn. Of course, a lot will then rest on the behaviours that are shown after the Bill is through—whether people live up to that kind of core belief around that permissiveness and the freedoms that have been given.

We have time to squeeze in one very quick one, if anyone has something else to ask.

Q Thank you, Chair. Do you see any risks attached to the flexibility the Secretary of State has given himself with the mandates?

Richard Murray: I think a longer-term mandate is a better thing. The idea that each year, sometime between December and March, you can set a different expectation on the NHS is operationally unreal for the system. They cannot do it, so I think we want to get back to something where you set out a clearer medium-term objective for the things you want the NHS to achieve, whether that is reduced waiting times or better health, and allow them to try and work towards it.

Budgets on that basis would also be incredibly helpful—if you are working in the service not knowing what capital you might have two years down the line and what revenue you might have. I think there is a real chance to do that in the spending review. That is a move in the right direction; we just have to make sure that if the budgets are still set on an annual basis, you do not get a diversion between what it is you have been asked and the budget then being suddenly moved on that annual basis. I would strongly encourage the Government to also try and set multi-year settlements for the NHS, as used to be done, so that people can plan at local level.

Nick Timmins: If memory serves me right, the original idea of the mandate was a rolling three-year mandate. You set the objectives of the NHS and what you want it to achieve, and you can have a little review of it each year, but it is clear. I probably should have said that if the money was also planned on the same basis, that would help no end.

That brings us to the end of our time. I thank our witnesses very much.

Examination of Witnesses

Dame Gill Morgan and Louise Patten gave evidence.

Q We will now hear from Dame Gill Morgan, the chair of Gloucestershire integrated care system and the NHS Confederation’s ICS network advisorate, and Louise Patten, the ICS network lead for the NHS Confederation’s ICS network advisorate. Thank you very much for coming. We have until 3.15 for this session. May I ask you both to introduce yourself for the record?

Dame Gill Morgan: I am Dame Gill Morgan. I am chair-designate of Gloucestershire ICS, but I have been involved there for over two years, so I have seen the development of this movement. I am now the elected chair of the terribly titled NHS Confederation advisorate. What is important about that is that it includes all the ICS chairs that have been and all the ICS people who have been acting in as accountable officers for the work that has developed thus far, so I think I bring a perspective on the reality of what people worry about.

I have been involved with health service Bills for well over 20 years. This one is an exemplar of how people can work with a service to develop a Bill that largely has the support of the system. People have engaged, listened, changed things and taken the frontline views seriously into account. We do not agree with everything, but you asked our think-tank group of people about some of the issues and changes and the permissive approach, and all those things are truly endorsed. For me, it has been the best experience in 25 years of involvement in healthcare. I want to have that noted because people worked really hard to do that.

In contextual terms, you have to realise that this is the first time the NHS has tried to do something fundamentally different. We always legislate for things that look the same—they quack the same, they walk the same, they waddle the same—yet systems and communities are fundamentally different. My ICS, which I am proud to be part of, has a population of about 600,000, and 15 other ICSs have populations of under 1 million. They have our characteristics of closeness of community and long-standing trust. On the other hand, there are some very big ICSs. What the Bill has done well thus far is to create a permissive environment that allows us to see how we can flourish as well as the big places. If you try to define it—

I am sorry to interrupt you. This session is intended for Members to ask you questions rather than for you to make a statement. I would prefer to move to Louise Patten and ask her to introduce herself so that we can get on with the questions.

Louise Patten: Good afternoon everyone. My name is Louise Patten. I head up the ICS network and NHS clinical commissioners at the NHS Confederation. I am also a clinician.

Q I broadly agree with the direction towards permissiveness and the logical direction of the Bill. I am profoundly disturbed, and most of the NHS representatives are making me feel more disturbed, about the lack of local accountability and scrutiny that local people will have of the power that we are giving, with due respect, to people such as you, designated within and by the local health service to police and manage itself. In your drive for permissiveness and power within the system locally, how does a local patient hold you to account for, in my area’s case, the £1.5 billion-worth of decisions that you are going to be making? How do we break the national power and make the local power better?

Dame Gill Morgan: What is different about this Bill is that it is the first time that local government will be very actively involved in those decisions. It has always been involved in scrutiny and big changes, but it will be heavily represented on our partnership board. We have four local government people, including two elected members on our ICB—integrated care board—so we are bringing in the local government elected people.

We intend our partnership board to meet in public and we are looking at exactly how many of our meetings of the ICB should be in public. Clearly, when talking about quality and clinical stuff, the actual deliberations need a private bit—[Interruption.] When talking about named individuals, yes, they do; but when talking about the quality of the service