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National Health Service (Integrated Care Boards: Exceptions to Core Responsibility) Regulations 2022

Volume 823: debated on Monday 20 June 2022

Considered in Grand Committee

Moved by

That the Grand Committee do consider the National Health Service (Integrated Care Boards: Exceptions to Core Responsibility) Regulations 2022.

My Lords, this statutory instrument seeks to ensure operational continuity as the changes under the Health and Care Act 2022 are implemented. It relates specifically to the transfer of functions from clinical commissioning groups, or CCGs, which were abolished by the 2022 Act, to newly established statutory integrated care boards, or ICBs.

Under the National Health Service Act 2006, amended by the 2022 Act, NHS England must set rules so that integrated care boards have “core responsibility” for every person who is provided with NHS primary medical services through registration with a GP practice in their area of England and every person usually resident in their area who is not registered with a GP practice. This means that, where a person is seeing a GP in an area, the relevant integrated care board is responsible for commissioning secondary health services that that person may need. This instrument provides an exception to this obligation for individuals who are usually resident in Scotland, Wales or Northern Ireland but are registered with a provider of NHS primary medical services in England.

This SI does not prevent those who are resident in Scotland, Wales and Northern Ireland accessing healthcare services in England. Instead, it simply makes clear where the commissioning responsibility sits for these patients. It promotes autonomy for devolved Governments to commission secondary care services for their residents, while still allowing these patients to continue to access secondary healthcare services in England. It is about which authority commissions and pays for a patient’s care, not the patient’s right to access care. This instrument is vital to ensure consistency and clarity between authorities in England and those in Scotland, Wales or Northern Ireland regarding who commissions and pays for a patient’s secondary care.

This statutory instrument allows for the continuation of the approach to devolved health policy introduced by the disapplication regulations 2013, which are being revoked as a consequence of the Health and Care Act 2022. Just to be clear, this instrument does not change existing cross-border commissioning arrangements; it simply transfers existing commissioning exceptions from CCGs to the new ICBs. We hope that these regulations will ensure operational continuity of services for patients as the English health system implements ICBs and are supported by the devolved Administrations, providing clarity on the role of integrated care boards within the existing cross-border arrangements.

I commend these regulations to the Committee.

I thank the Minister for his clear explanation. One can see from the number of noble Lords who wish to take part in this debate that this is not very controversial.

The instrument appears to tidy up the problems of people in different countries in the UK who may need to use NHS services in a neighbouring country and of who purchases those services. However, despite Ministers telling Parliament repeatedly that noble Lords could not vote on certain amendments because they had pre-agreed the legislation in the then Health and Care Bill 2022 with the Scottish Parliament, the Welsh Senedd and the Northern Ireland Assembly, it now appears that they had not made arrangements to continue the status quo—the very basic—of who commissions cross-border issues. These regulations enable that to happen. It would have been easier if such amendments had been allowed when the Bill was going through, rather than Ministers telling noble Lords from across the parties that such amendments around cross-border issues could not be voted on.

Many in the House along cross-party lines complained that, as the Health and Care Bill was progressing through the House, Ministers were taking considerable powers on themselves to create regulations. The Bill was enacted only two months ago yet we are already seeing their errors in the legislation being tidied up by this statutory instrument. How many more are still to come to ensure that all tidying-up arrangements are in place by 1 July? Would it not have been better for hard-working civil servants, both in the department and in Parliament, for the Bill not to have been brought out when there was still considerable focus on Covid and the omicron outbreak? Errors such as this are basic and waste civil servants’ and Parliament’s time.

A slower timescale for the Bill, including pre-legislative scrutiny, would have given everyone time to consider it in more detail and make appropriate amendments. I am sure that the Minister will argue that the Bill was needed urgently because the reforms needed to be put in place, but NHS England and the Government decided this timescale via centralised diktats to NHS regions and providers. This lack of basic cross-border provision in the Bill is a sign of either incompetence or not having enough time to get basic issues correct. As I said, the Secretary of State is already talking about further legislation to sort out social care delivery, which again shows that the Government, by rushing things through, did not get the basics right.

While we are discussing cross-border issues for the NHS, clearly IT and data systems are sometimes not interoperable. An example of this are pharmacy systems between Wales and England. Will the new £360-million contract for the proposed federated data platform, or FDP—a new data tool to connect and integrate patient and other data sources from across health systems—deal with this type of problem?

One of the favoured providers for this contract, Palantir Technologies, is trying to give itself greater chances of getting the contract by hiring two former senior NHS officials in recent months: Indra Joshi, the NHS’s former head of artificial intelligence, and Harjeet Dhaliwal, a former deputy to Ming Tang, NHS England’s data chief, who is responsible for the FDP contract and for Palantir Technology’s previous contracts with the NHS. Indra Joshi was present at a number of meetings on NHS data, as the health Bill was going through, with the Minister and other noble Lords such as my noble friend Lord Clement-Jones, the noble Lord, Lord Hunt, and the noble Baroness, Lady Brinton.

Does the Minister agree that, for the individuals in these two senior NHS roles, who were directly associated with the FDP contract and NHS data use, to be poached and then immediately work for Palantir Technologies raises serious ethical issues that will give Palantir an unfair commercial advantage, and raises issues about senior NHS staff working for commercial companies immediately after leaving the NHS—more or less allowing a revolving door to a career with these companies and creating issues with the letting and award of multi-million-pound contracts?

My Lords, I start by thanking the Minister for his extremely helpful introduction to these regulations. It is a pleasure to follow the noble Lord, Lord Scriven; I want to pick up some of the points he made. Let me say at the outset that we on these Benches support the regulations, which we accept are consequential and will not change services for people.

The words that have been used are that this is a “tidying-up exercise”. I want to dwell for a moment on the general point that there has been considerable time for this. The Health and Care Bill was introduced in July 2021 and we all know how long it spent in Committee, both in this House and in the other place. We also know how extensive the consideration of it was so it seems strange for us to find ourselves back discussing what are described as “consequentials”. This may be a simple tidying-up exercise—I accept that is what these regulations are—but calling it that ignores how we could have avoided the need to tidy up and, therefore, the amount of bureaucracy, time and effort that has been spent, not least in the department, in having to make these changes. Perhaps the Minister could address the general point that has been made in the course of this debate about why we find ourselves in this situation.

In the debate in the other place, the Minister talked about five more consequential statutory instruments that we should expect as part of this so-called tidying-up exercise. Perhaps the Minister can advise us on those. It is important that everybody, including system managers, knows what is coming down the track. I say that particularly given the record waiting lists and waiting times that the NHS is seeking to manage, yet we are talking about regulations that must be in place for 1 July so that everyone has certainty about what needs to be put in place and to be done. I accept the Minister’s assurance that this does not affect services to patients in a practical sense, but whenever we discuss regulations there is always an air of uncertainty around. Patients need to be assured that they will have a seamless service wherever they live or wherever they are. Therefore, knowing that we will be considering similar consequentials raises questions about certainty.

We hope that the regulations go through and that the Minister will respond to the points of concern that have been raised today. I hope that the regulations will ensure that the NHS can get on with the job that it is here to do.

My Lords, I thank both noble Lords who have spoken in this debate. The noble Lord, Lord Scriven, said this statutory instrument is not controversial, as reflected in the attendance at the debate, but when I saw that the noble Lord, Lord Scriven, was present I thought, “What’s controversial? I’d better look into it.” The noble Lord did not disappoint in that way. He quite rightly holds the Government to account.

Before I conclude I shall try to address some of the points that were made. The department has laid eight instruments so far to support the ICBs for 1 July. They ensure the continuation of the existing policy and provide the supporting legislative framework. The Health and Care Act 2022 (Commencement No. 1) Regulations 2022 were made on 6 May to commence a small number of preparatory sections from 9 May to enable preparatory steps to take place for the establishment of ICBs on 1 July. There are six negative resolution statutory instruments and one affirmative instrument—this regulation. The Health and Care Act 2022 (Commencement No. 2) Regulations 2022 are planned to be made by 30 June. This SI will commence major elements of the Health and Care Act on 1 July, including, but not limited to, ICBs, ICPs—integrated care partnerships—and the merger of NHS England Improvement, TDA and Monitor. We will be laying a further consequential statutory instrument which will amend redundant references to previously existing bodies and update legislation to support the implementation of ICBs.

On the point that the noble Lord, Lord Scriven, made about the federated data platform, I assure him that I have been in conversation with NHS England, particularly the transformation directorate, and it has been quite clear with me that it is an open tender. There is no preferred bidder. It has seen all the speculation in recent press articles and I have asked it directly about it. I will be quite clear: this is a very difficult for me to walk because as a Minister I do not want to interfere too much in those technical solutions and favour one or the other, but at the same time I have to warn about the politics around this. When I was speaking to the officials, they were very clear about that. We have to be clear about this. Whatever you chose, there will be some story out in the press, so we must make sure it is as open as possible.

I hope that the Minister takes it in the spirit in which I asked the question, but this is an example of senior officials in the department—not for the first time—being involved with a commercial company and there being a revolving door going into that commercial company when specific multi-million-pound contracts are made. Do the Government feel comfortable that that is correct or do they feel that rules such as those for the Civil Service—where there are rules about revolving doors and taking this up—should also apply to NHS England employees? If not, does the Minister think that it should be looked at and that such rules should apply as they do for the Civil Service?

I thank the noble Lord for that clarification. My initial reaction was that I wanted to take this back to the NHS and ask. If the noble Lord will allow me, I will make that point directly, as the noble Lord made it so eloquently, to the NHS officials. Of course, as he rightly says, it is not just about the reality; we also have to address perception. We know that in a number of areas, for politicians but also officials, people are very concerned about revolving doors for those who have recently left and potential conflicts of interest. If the noble Lord will allow me, I will talk to NHS officials about this and get back to him.

On the particular issues, there will be more SIs. I am advised, but I will clarify it once again, that these regulations are made under the powers of the 2022 Act; it was previously done by regulation, and this will replace previous secondary legislation on disapplication from 2013. However, I take the point about whether this could have been done in the Health and Care Act. I will get a clear answer for noble Lords from my officials, if that is acceptable.

To conclude, I reassure the Committee that this instrument will not change how residents from devolved nations can access healthcare services in England. It is right that patients from Scotland, Wales and Northern Ireland continue to access secondary healthcare services in England as they do now, in a seamless way. Nor will there be any adverse financial consequences for devolved Governments or newly established ICBs, relative to the previous CCGs, in developing these regulations. This will continue the existing arrangements, which have been in place for several years and have the support of the devolved Administrations.

Given the outstanding questions, I hope that noble Lords will accept that I will write to everyone who took part in the debate—that should not be too difficult. I commend these regulations to the Committee.

Motion agreed.