Health and Care Bill

Lord Lansley Excerpts

Lords Hansard - Part 2 & Report stage
Thursday 3rd March 2022 Lords Chamber

Moved by

[Lord Lansley]

83: Clause 39, page 47, line 37, at end insert—
“(4) A direction under section 13ZC may not be given in relation to a decision about the relative allocation of resources to integrated care boards.(5) A direction under section 13ZC may not be given in relation to a decision about the results of a procurement of goods or services provided for the purposes of the NHS in England.”

[Lord Lansley (Con)]

My Lords, noble Lords will recall from Committee some substantial discussion about whether it was wise for the Secretary of State to take additional powers of direction in relation to NHS England. I suppose I should declare an interest since I gave the NHS commissioning board, or NHS England, the freedoms it currently enjoys. I am probably the person least likely to be persuaded that it is a very good idea to take all that away. After our debate in Committee, I thought it was probably sensible, rather than to seek to remove the powers of direction that the Secretary of State is given under Clause 39, to look at the exceptions to that power in new Section 13ZD and ask: are these all the exceptions that we should have?

On Amendment 83, the conclusion I reached was that there were at least two specific areas which are not mentioned in new Section 13ZD but should be; namely, limitations on the use of this power on the part of the Secretary of State. First, the local allocation of resources to integrated care boards—and the difficult decisions of trying to remedy the inequalities in access to healthcare services through the resource allocation process—is not something which any of us want the Secretary of State to interfere with; otherwise, it is sure to be regarded as being done for a political purpose, even if it might be done for another.

Secondly, there is the question of

“procurement of goods or services”.

After all the experience we have had over recent months, the last thing any of us wants is to go too far in the direction of the Secretary of State having a power in relation to procurement when that can perfectly well be given as a responsibility to NHS England. This is Amendment 83, and I hope that my noble friend, if he cannot accept the amendments, will give us some specific assurances in relation to the Secretary of State not using those powers.

In this group, I also put my name to Amendment 84, which would remove Clause 40—and, by extension, Schedule 6—from the Bill. This is about the Secretary of State coming in and acquiring more powers than was formerly the case. I was shadow Secretary of State for six years or so. During that time, I would have loved it if the then Secretary of State had all these powers to intervene in every reconfiguration, because I went around the country—as people are fond of reminding me—mobilising opposition to some of the ways in which the health service, led by the then Government, was trying to reconfigure services. This is not something that the Secretary of State or the current Government should wish for themselves or for their successors in office. I will not go back into all the arguments, but there are plenty of good examples of where, if the Secretary of State had this power, people would press the Secretary of State to use it—and it would be deeply unwise for a Secretary of State to get involved.

The justification on the part of the Government is that it stops this going on for ever. But there is a reason that these things go on for a long time—because they are intensely difficult, and the balances are very difficult to strike. Sometimes, the processes of consultation and public engagement take a long time. If the Government’s argument is that they are going leap in, intervene and settle it all quickly, both sides will yell when they do that. We can be absolutely certain of this. No one will be happy, and everyone will blame the Secretary of State. This is very firmly in the “be careful what you wish for” category. We would do the Government a great service by deleting Clause 40 from the Bill. If the noble Baroness, Lady Thornton, pursues that, I will certainly support her. I beg to move Amendment 83.

[Baroness Thornton (Lab)]

With the leave of the House, I thought it might be useful if I used my slot to speak right now on leaving out Clause 40. First, I thank the noble Lords, Lord Patel and Lord Lansley, and the noble Baroness, Lady Walmsley, for putting their names to this amendment. The noble Lord, Lord Patel—with whom I spoke this morning, and who is definitely on the mend, so I hope we will see him next week—said how strongly he supports the amendment. I will speak very briefly because we have already said much of what needs to be said about saving the Secretary of State from himself—as the noble Lord, Lord Lansley, said, I think. This is what this amendment is about.

Clearly, this is not what the NHS asked for in the Bill. It did not ask for this power. It has been added to the Bill—by a previous Secretary of State, I suspect—and I hear rumours that even the current Secretary of State is not a great fan. Why would any Secretary of State want to have this power—to be lobbied and drawn into any minor local dispute, particularly as we head towards a general election?

I have a small anecdote. A small coastal town had a small hospital with an accident and emergency department. It could not be properly staffed, it regularly closed for random periods, and far too often patients arrived there only to be moved to the larger A&E 20 miles down the road. Proposals were made to close it—and of course, outrage ensued. “Save our A&E”, people said, even though it was unsafe. Local politics were poisonous, and the blame for the closure was thrown on opponents, whichever side they were on.

However, over time, good communications, clinical leadership and, eventually, bringing local people into the team, got the proposal moving. People understood what was needed and why, and the reconfiguration process went through its stages, with external reviews and analysis by the national clinical advisory team, which all gave reassurance. The clincher came when a distinguished clinician leading the review told a meeting that he would personally go and paint over the road signs for the A&E, because it was so unsuitable. It shut, which probably means that lives were saved.

The process of rational argument and proper analysis works, and on this occasion we should not just leave it to local politics to decide what reconfiguration means. The Secretary of State has enough powers to direct the whole NHS in its fullness, but should not be involved in what may be very small reconfigurations indeed. We agree, and many people in the NHS and its organisations agree, that this clause should be removed from the Bill.

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[Lord Kamall (Con)]

The noble Baroness raises some important points, but I remind her that, alongside those, she should consider safeguards and limitations that are being put in place to address these concerns and the importance of ensuring due accountability for health service delivery. I understand the strong feeling among noble Lords and have tried to go as far as I can in addressing those concerns. I once again, perhaps in vain, ask noble Lords to think about the assurances that have been given and not to move their amendments when they are reached.

[Lord Lansley (Con)]

My Lords, I am grateful to my noble friend. In particular I am grateful for his specific assurances on the powers of procurement and the question of resource allocation. We can be pretty confident that the Secretary of State would not interfere with the Advisory Committee on Resource Allocation or the NHS England response to it. If the Secretary of State were to start messing with the formula, we would get into a very difficult place.

I am still of the view that there was a very good reason we gave NHS England greater freedoms. I think it would not have been possible for NHS England to have published its Five Year Forward View in 2014 or even more so the Long Term Plan in 2019, in circumstances where it had occupied the same relationship with the Secretary of State as it did in the past.

This is taking NHS England from its current degree of independence to something that it was not in the past, but is a little more ambiguous. It will be difficult, for precisely the reasons the noble Lord, Lord Hunt of Kings Heath, explained, for the NHS to feel that, when the successor to the long-term plan is published by the successor to the noble Lord, Lord Stevens of Birmingham, it is the NHS’s own plan. That has been very important; Ministers have said it a thousand times. Why do we not let that happen? The measures in Clause 39 take a real risk of infringing on the idea that it is the NHS’s own plan.

It does not mean that the Secretary of State is not accountable, but that they are accountable in ways that they can legitimately control: the resource allocation and an expectation of the priorities and outcomes. That is where the Secretary of State should be putting the weight of the Government, not in trying to decide how outcomes in the NHS are best achieved. I do not agree in principle with what is proposed in Clause 39, but I am not going to press that point.

I will, however, if the noble Baroness, Lady Thornton, pushes it, support her on Clause 40. I say to my noble friend: look at Schedule 6. The structure of it does not even mention the Independent Reconfiguration Panel. As soon as there is a proposal for a reconfiguration from any of the NHS bodies, it quite clearly places in the hands of the Secretary of State the responsibility to decide whether to go ahead with it or not. That will be exactly the moment when the Secretary of State is drawn in and is not able to be extricated from it.

My noble friend has simply to look at the example of the reconfiguration of congenital paediatric cardiac services to realise that no sensible Minister would have been drawn into that debate at an early stage with any confidence of being able to make a decision that would have been accepted by any of the parties to that debate.

[Lord Stevens of Birmingham (CB)]

The noble Lord raises the congenital paediatric cardiac case, and the noble Baroness, Lady Cumberlege, raised the Kent stroke question. On that question, the estimate was that 40 to 50 people will have died or lost their ability to live independently as a result of that two-year delay. Is it not the case that, for the very reasons that the noble Lord, Lord Lansley, has just set out, those kinds of delays will now be invisible to the naked eye because these proposals will never get off the ground due to the self-censoring of necessary clinical change that would save lives, precisely as the noble Lord, Lord Hunt of Kings Heath described?

[Lord Lansley (Con)]

We all know that when these proposals come forward, there is a lot of local pressure. In many cases, it will be local pressure that is transmitted to the Secretary of State by Members of Parliament who are—

[Baroness Penn (Con)]

My Lords, it might be worth reminding noble Lords that on Report, noble Lords only speak twice for short questions of elucidation.

[Lord Lansley (Con)]

I am responding to the debate, am I not?

[Noble Lords]

You are.

[Lord Lansley (Con)]

The noble Lord was elucidating something to which I was responding. That is my view. Anyway, I was not planning to go on at any length. My point is very straightforward. As the noble Lord, Lord Hunt, said, that will be transmitted to the Secretary of State at an early stage, before the point where the Secretary of State can, in any practical way, distance himself or herself from the decision by giving it to the independent reconfiguration panel. There is a process out there. I am a Conservative, and we do not change things that are not broken. This is not yet broken. It is a system that has been used tolerably well and we should stick with it, so I support leaving out Clause 40. However, I beg leave to withdraw Amendment 83.

Amendment 83 withdrawn.

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Moved by

[Lord Lansley]

98: Schedule 10, page 223, line 21, at end insert—
“(5A) Rules under subsection (1) may not be framed by reference to whether the provider is in the public or, as the case may be, private sector.”

[Lord Lansley (Con)]

My Lords, I will not go on at great length because noble Lords have heard more than sufficient from me today, but this group brings us to what is known in the trade as the provider selection regime: that is, how the NHS goes about the process of commissioning services from a range of providers and the relationship between that and the choice that is available to patients. I am going to refer to my amendments, Amendments 98 and 99, and, without going on about it, I commend Amendment 80 in the name of the noble Lord, Lord Warner. Finding out whether people have actually experienced choice and whether that is helpful to them is a useful thing to do, and I am not sure whether it features in the current electronic referral system. It would be useful to add it in.

The words of Amendment 98 are in fact already in the regulations that the NHS currently lives by because, born of the previous experience when there were discriminatory payment arrangements for private sector providers relative to public sector providers—ie, more advantageous payment arrangements for the private sector than the public sector—in the 2012 legislation we legislated to prevent that happening in the future. The current Bill removes said prohibition on discrimination on the basis of the ownership, public or private ownership, of a provider.

Noble Lords might think, “Ah, this is trying to avoid us discriminating against the private sector.” This was actually included in order to prevent the Government or the NHS discriminating in favour of the private sector. There may be arguments for it in certain circumstances because NHS bodies often have, as it were, fully depreciated assets and to create additional capacity the private sector very often has to invest capital and has to meet the costs of capital as well as the revenue costs of providing services. None the less, we addressed all that and took the view that we did not want any discrimination: we wanted no competition on price, but we wanted competition on quality. That is why, to be perfectly frank, I am testing the Government’s intentions in omitting something that was a central plank of policy for the 2012 legislation.

On Amendment 99, if I recall there is language in the original White Paper from last year, which set the provisions for the Bill, which referred to “any qualified provider” and made it clear that it was the Government’s intention to maintain the existing choice arrangements and access to any qualified provider. Indeed, I think it said that it would “bolster” the system, although I am not sure whether that is happening anywhere. The amendment is really intended to test a particular issue that arose. I am a very sad person, and I was looking at the service conditions for the NHS standard contract; the noble Lord, Lord Stevens of Birmingham, will know them intimately. There is a point at which commissioners who are presented with people who wish to access other providers, who have a contract with another commissioner, are not required to extend that service to them. The way in which it was written in the standard contract was to talk about circumstances where the originating contract does not refer to the address—I think it said the postal address—included in the originating contract. My point to the Government is that this is absurd. There can be geographic limitations, but we should aim not to make them as limiting as the reference to a postal address in the originating contract would have made them.

The wider point is that, if one looks at the new provider selection regime, one sees that there is a process by which commissioners—the decision-making bodies commissioning services—go through a process of saying, “What are the circumstances of commissioning providers?” They ask whether it is circumstance 1, extending the existing arrangement; circumstance 2, going to a different provider; or circumstance 3, going to competition. The language of circumstance 2 is:

“where the decision-making body wants to use a different provider and the decision-making body considers it can identify a suitable provider without running a competitive procurement process”.

This is something that it will be readily able to do in many cases. A commissioner can say, “This is the circumstance. We want to go to a different provider and we know who we want to go to—that’s fine, we’ll give them the contract.”

Circumstance 3 is

“where the decision-making body cannot identify a single provider or group of providers that is most suitable without running a competitive process; or to test the market”.

The body could choose to test the market, but of course more than subtly. Whereas, in the past, the NHS tended to think that it needed to test the market in circumstances in which the legislation did not actually require it to, there is no such thing as compulsory competitive tendering in the 2012 legislation, or the regulations made under it. But now it has shifted completely the other way, and NHS bodies will be able broadly speaking to choose not to use competition at all. The question is whether that will really be sustainable. In the short run, access to the private sector may well be quite widespread, and there may well be a significant element of choice available to patients through the electronic referral service, but that may be closed down in years ahead, if these provisions are implemented in the way in which they are set out.

I issue a further warning to my noble friends. If you are a provider of services to the NHS and you believe that a decision has been made unfairly or inappropriately by the NHS, there is a standstill on the contract, you have 30 days, and you can send in a complaint, in effect, to the decision-making body, which then decides whether it has done the right thing. There is no independent process whatever, so it seems that the chances of providers resorting to law to challenge what they regard as unfair decisions on the part of decision-making bodies in the NHS rise dramatically with the implementation of these processes.

All that said, I hope what I can hear from my noble friends on the Front Bench is that what they said in the White Paper a year ago in February 2021 remains true: that they are going to sustain patient choice, that they will use the resources of NHS providers and beyond to enable us to fulfil our very demanding recovery programme, that they will think hard about whether the precise language in some of the respects that I have outlined is fair to providers, and that commissioners in the NHS will use their procurement capabilities to deliver best value for patients. I beg to move Amendment 98.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

The noble Baroness, Lady Brinton, is contributing remotely.

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I hope that my responses have served to reassure the noble Lords, Lord Hendy and Lord Warner, and my noble friend Lord Lansley, that the Government are very much in tune with their thinking on these matters and that the points they have sensibly raised through the amendments have been addressed in one way or another. I hope, too, that the Government’s amendments, to which I have spoken, will have allayed the specific concerns voiced at earlier stages about the regulation-making power in Clause 70. Accordingly, I would invite my noble friend to withdraw his Amendment 98.

[Lord Lansley (Con)]

My Lords, I am most grateful to my noble friend, in particular for the helpful explanation of the impact of the response to the consultation published yesterday, which I think moves us in the right direction on the service conditions in the standard contract on that point. I am grateful for my noble friend’s assurance on Amendment 98 as well. Clearly the power is available in the regulations to make sure that the non-discriminatory element of the procurement regulations can be brought forward in due course, so it need not be in the Bill. I beg leave to withdraw Amendment 98.

Amendment 98 withdrawn.

Health and Care Bill

Lord Lansley Excerpts

Lords Hansard - Part 1 & Report stage
Thursday 3rd March 2022 Lords Chamber

Moved by

[Lord Lansley]

61: Clause 21, page 29, line 14, leave out from “committee” to the end of line 20 and insert “(an “integrated care partnership”) for the board’s area.
(2) The integrated care partnership may be designated as the Health and Wellbeing Board where the area of the integrated care board and the responsible local authority are coterminous.(2A) If more than one Health and Wellbeing Board relates to the area of the integrated care board, the integrated care partnership may be designated as the Health and Wellbeing Boards of each responsible local authority acting in combination.(2B) The integrated care partnership must consist of—(a) one or more members appointed by the Health and Wellbeing Board or Boards,(b) members appointed by the integrated care board (equivalent in number to the number appointed by the Health and Wellbeing Board or Boards), and(c) such further members as are appointed by the integrated care partnership.”

[Lord Lansley (Con)]

My Lords, Amendments 61, 95 and 96, which are all in my name, are to two separate issues. Amendment 61 relates to an issue we debated a number of times in Committee, when, if I may presume, there was a degree of support among noble Lords for the proposition that integrated care partnerships, in so far as they have to produce a strategy for a needs assessment for their area, have a very complementary—indeed, one might say overlapping—responsibility with health and well-being boards established in local authorities.

I will not go into the detail of how this works, and nor do I rest on the construction of Amendment 61. I freely acknowledge that this is a tricky thing to do. There will be circumstances where one ICS, one ICB or one ICP covers a lot of local authorities and others where it covers only one or two. In the latter case, it is pretty straightforward to integrate health and well-being boards and integrated care partnerships. In other cases, the membership and construction may be more complicated.

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[Baroness Penn (Con)]

My Lords, this has been an important discussion about place and joint working, and although the Government are unable to accept my noble friend’s amendments, for reasons I shall touch on, I hope I can reassure him that the questions which he and other noble Lords have raised have been considered in the Bill.

England is so large and diverse that a one-size-fits-all approach will not be right for everyone, and that is why we have been flexible about the requirements for integrated care partnerships and joint working arrangements. We fundamentally believe that, if integration is to work, we must allow local areas to find the right approach for them.

As my noble friend will appreciate, our provisions on integrated care partnerships build upon existing legislation, particularly in the case of health and well-being boards. We know that health and well-being boards have played an incredibly important role in the last decade, and this legislation intends to build on their success. We will be refreshing the guidance for health and well-being boards in the light of the changes that this Bill proposes, in order to help them understand the possibilities of these arrangements and their relationships with ICBs and ICPs, so that they can find the most appropriate model for their area.

Fortunately, this Bill and existing legislation already provide the framework to do what these amendments intend to achieve. Two or more health and well-being boards can already jointly exercise their functions, and where the local authority area and ICB area are the same, there is no reason why the health and well-being board and the ICP cannot have the same membership. The ICP is intended as an equal partnership between the local authorities and the ICB. By restricting the right of the local authority to nominate a member who they see fit and requiring them to do so through a committee with a potentially wide membership, including the ICB, risks undermining that equality. Local authorities may ask their health and well-being board to nominate those members. However, we do not wish to restrict their options and unintentionally prevent better collaboration and integration by adding further requirements to the Bill.

I turn to the joint working arrangements. The Bill also provides for the ability to establish place-based committees of ICBs and to set them out clearly in their constitutions. I assure my noble friend on this point that the legislation allows the flexibility to establish these committees, so we should not find ourselves in the situation that he talks about. ICBs will be able to enter arrangements under new Section 65Z5, which allows an ICB to delegate or exercise its functions jointly with other ICBs, NHS England, NHS trusts, foundation trusts and local authorities, or any other body prescribed by regulations. Under these powers, a committee of an ICB could be created to look at population health improvement at place level and could consider entering an arrangement under Section 65Z5 to work jointly where appropriate.

The membership of that committee can be decided locally by the ICB, and it is entirely open to the ICB to seek views from other organisations as to who best to appoint. I hope that reassures my noble friend that there is already the legal framework for ICBs to look at population health improvement at a place level. We are trying to protect the ability of ICBs to determine the structures that work best for them. To help them to do that, NHS England has the power to issue guidance to ICBs on the discharge of their functions. The flexibility that we have set out in the Bill makes my noble friend’s intentions possible. However, our provisions also give a degree of flexibility, so that areas can take control, innovate, and adopt what works best for them, rather having to meet prescriptive top-down requirements.

It is for these reasons that I hope that my noble friend feels able to withdraw his Amendment 61 and not move his Amendments 95 and 96 when they are reached.

[Lord Lansley (Con)]

My Lords, I am most grateful to noble Lords for their support, and to my noble friend for responding. I have a couple of important things to say.

First, I was not suggesting these things. I was suggesting that the legislation should reflect what the Government’s intentions are, because the integration White Paper set them out. Secondly, my noble friend said very carefully that the health and well-being boards and integrated care partnerships can have the same membership, but that is not the same as them being the same organisation. I am looking for my noble friend to say, without fear of contradiction, that where they choose locally to do so—and I am perfectly happy for there to be flexibility—local authorities and the ICBs can create an integrated care partnership which serves the functions of the health and well-being boards and the integrated care partnership in one organisation. That is the question.

On Amendments 95 and 96, I take the Minister’s point. I looked at it and thought, yes, there’s no difficulty about the place boards being a committee of the integrated care boards, but the Government in their White Paper said that there should be a single person accountable for shared outcomes in each place. That place board would have functions delegated to it from the integrated care board and local authorities. For that to happen, I cannot understand why it is not necessary for that to be reflected in Clause 62, since the existing legislation makes no reference to place boards. Also, if the person who is accountable is the chief executive of the place board, we must assume that that will not necessarily be the chief executive of the integrated care board, yet as things stand in the legislation, the chief executive of the integrated care board will be the single accountable officer. How is the accountable officer to be the chief executive of the place board?

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Moved by

[Lord Lansley]

69: Clause 26, page 37, line 24, leave out “objectives and”

[Lord Lansley (Con)]

My Lords, this group of amendments in my name relates to Clause 26. Noble Lords will recall that we had a rather helpful debate about this in Committee. The point is that the Care Quality Commission is an independent organisation. We want to respect that and see that carried through into its new responsibility of reviewing and inspecting the integrated care systems.

The Bill asks for “objectives and priorities” to be set by the Secretary of State. In another place, Members of the Commons inserted the idea that these priorities must include—as seen in proposed new Section 46B(3)—

“leadership, the integration of services and the quality and safety of service”.

That is fine; if they want that, let us leave it in, but I have no idea what “objectives” are in this context. Although I do not want to go down the path of semantics, for the Secretary of State to say what his or her priorities are is entirely reasonable and should be reflected in the indicators used by the CQC, but I am not sure that I know what “objectives” are in this context. Either my noble friend will explain to me what the objectives are, in which case the question of why they are not clarified further in the Bill arises, or let us leave them out—which is what most of these amendments do.

Regarding two of these amendments, it seems particularly undesirable for the Secretary of State—as in proposed new Section 46B(5) and (10)—to

“direct the Commission to revise the indicators”.

The indicators that the Care Quality Commission devises require the approval of the Secretary of State, so I am not sure why we should so trammel the independence of the CQC by enabling the Secretary of State to “direct” it to revise its indicators as opposed to denying approval, so I would rather that were not there.

Our noble friends on the Front Bench have been very accommodating; a spirit of compromise and understanding seems to have imbued the Front Bench splendidly so far. If the Minister is not minded to accept my amendments, I hope that she can at least give me some reassurance about the manner in which the Secretary of State’s powers are to be used or—in my view, this would be better—not used or extremely rarely used. I beg to move Amendment 69.

[Baroness Walmsley (LD)]

My Lords, the CQC is a competent and independent organisation. Long may that continue, and any attempt to trammel it is unwelcome. We have here a 265-page Bill. If the CQC cannot get from the Bill the intentions of the Government and carry them out carefully in doing its job inspecting and reporting on how the integrated care systems are working, I do not think it needs any further direction from the Secretary of State.

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[Baroness Penn (Con)]

My Lords, I thank my noble friend for raising this issue. I hope in the spirit of collaboration and compromise I am able to provide him with some further clarity and reassurance, even if I am not able to support his amendments.

Flourishing systems are critical to the success of integration and many of the proposals in the Bill. In that context it is right that the Secretary of State, who is accountable to Parliament, can set the overall strategic direction of reviews of integrated care systems through setting objectives and priorities for the CQC in relation to those assessments. However, it will be the CQC as the independent regulator and expert which will develop and carry out those reviews.

In Committee, noble Lords across this House raised several matters that these reviews should or could look at—from children to rare conditions—and it is right that the Secretary of State should be able to set objectives to explain the intent that lies behind high-level priorities such as leadership, integration quality and safety. These objectives will aid the CQC in its development of the review methodology and quality indicators and lay out where specific focuses should be given. The current clause allows the Secretary of State to make these distinctions and be more nuanced, just as is permitted for CQC reviews of local authority functions relating to adult social care set out in Clause 152. To remove the Secretary of State’s ability to set objectives is to remove nuance, which in turn could dilute the focus of these reviews on particular patient pathways or integration arrangements.

Furthermore, the Secretary of State must be able to ensure that the CQC’s role is complementary to other assessments, such as NHS England’s oversight of ICBs. This is achieved in part through the Secretary of State’s role in approving and directing to revise the indicators of quality, methods and approach. Removing the Secretary of State’s ability to direct the CQC to revise indicators risks the Secretary of State being locked in after approving the methodology. This could prevent the Government being able to respond to shifting developments in health and care, thus undermining the review’s relevance as time progresses.

I further reassure my noble friend and other noble Lords that we expect the power to direct to revise to be used infrequently, so as not to disrupt CQC reviews. The Government fully respect the independence of the CQC, and these powers are designed to ensure that its reviews of the integrated care systems are effective without undermining that independence.

It is for these reasons that I hope my noble friend feels able to withdraw his amendment and not move his further amendments when they are reached.

[Lord Lansley (Con)]

I am most grateful to my noble friend and for the support of noble Lords for the concept. I hope the CQC will find that this assists it in ensuring that it remains independent in how it goes about its job, and, indeed, how it derives indicators of quality and fitness for purpose. I take my noble friend’s point about what objectives might be. They might be, for example, objectives of the nature of the service that the review should cover so the Government might have some national priorities. I think the word “priorities” would have been sufficient.

I confess to my noble friend that I did not understand why the Secretary of State might come in and direct the CQC to change its indicators. It would have been perfectly reasonable for the Secretary of State to have waited and seen what the CQC said. The CQC will clearly change its indicators from time to time as technologies and services adapt, and it could have been trusted to do it. I will not press the point and I beg leave to withdraw Amendment 69.

Amendment 69 withdrawn.

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[Baroness Watkins of Tavistock (CB)]

My Lords, I rise briefly to support this group of amendments and to declare my interest as a fellow of the Royal College of Nursing. It is absolutely clear to me that, without the right staff in the right place, you cannot give the right care. This is the situation we are in at the moment, and we must get it right for the future. We are on an improvement trajectory, and there is an increase in the number of nurses employed in the NHS. However, this is not universal across all areas of the NHS, particularly in learning disability and mental health.

If we could get the Government to support Amendment 80, we could resolve the issue through guidance. On Amendment 81, I also speak for my noble friend Lord Patel, who unfortunately cannot be here today and who believes that an elegant solution as described by my noble friend Baroness Finlay, in terms of guidance subsuming Amendment 82 in particular, would enable directors of nursing, medicine and care to be responsible for ensuring that they have a safe staffing structure in the areas for which they commission care. That would be reported up every two years through the Secretary of State, rather than every five years, as indicated in Amendment 82. This would be a much more suitable solution.

[Lord Lansley (Con)]

My Lords, I will intervene. I was not intending to speak but I was prompted by a recollection arising from the reference to anaesthetists by the noble Baroness, Lady Finlay. I recall that the Centre for Workforce Intelligence produced in February 2015 a report on the future supply and demand of anaesthetists and the intensive care medicine workforce. I have just checked the report, and it projects for 2033 that the number of full-time equivalent staff required will be 11,800, and supply will be 8,000. Therefore, in February 2015, we knew of this set of projections produced by the CWI. It said, among other things, that there should be

“a further review in the next two to three years.”

However, the CWI was abolished in 2016 and its functions were restored, I think, to the Department of Health.

The noble Lord, Lord Stevens, did not refer to this directly, but we must bear in mind the general presumption that there has never been workforce planning, although in certain respects, there has. The report on anaesthetists is only one of a whole string of reports—I could list them, but I do not need to—produced by the Centre for Workforce Intelligence before it was abolished. Their main purpose was to say to Health Education England, “This is the level of education and training commissioning you should be undertaking in the years ahead”. As the noble Lord said in Committee, it did produce a set of proposals; it is just that they were not acted upon.

I just say this: legislation may be the right way to proceed now, but let us not lose sight of what is actually required, which is for Health Education England not to have its budget cut, as happened in 2016, but to have its budget increased and for that budget to be turned into an education and training commissioning programme that delivers the numbers of trained professionals in this country that we project we will need. It is no good saying, “Oh, we’ve never had planning; we passed a piece of legislation.” I am sorry, it could be a case of legislate and forget unless the money is provided and the commissioning happens. There have been organisations whose job it was to do it—Health Education England, the Centre for Workforce Intelligence—but they were not supported, and in one case, abolished.

[Lord Warner (CB)]

My Lords, I support Amendment 111 in the name of the noble Lord, Lord Hunt, to which I have added my name, and Amendment 80 in the name of the noble Baroness, Lady Cumberlege. On Amendment 111, I want to emphasise two points. First, GPs are and have always been the gatekeepers to the NHS. Without GPs, there is less primary care and less access to the NHS. Over 90% of patients access the NHS through their GPs and primary care. If you are unlucky enough to live in an area with a serious shortage of GPs, your access to NHS services is highly likely to be diminished and your health put at greater risk.

My second point is that it follows that a shortage of GPs is also likely to contribute to health inequalities, a topic much discussed during the passage of the Bill. In addition, this is likely to mean that you live in a place which the Government say they want to level up. So, if the Minister accepts the amendment of the noble Lord, Lord Hunt, he will be helping to deliver two government objectives: reducing health inequalities and levelling up. What’s not to like? Who knows—he might even get a promotion out of it.

I turn briefly to Amendment 80, which I support and will vote for if the noble Baroness pushes it to a vote. I want, however, to emphasise two points that follow on a great deal from what the noble Lord, Lord Lansley, said. For too long the NHS has relied on buttressing its inadequate system for training home-grown staff by recruiting from abroad. Brexit and tighter immigration policies have significantly reduced this supply line. It will take long-term planning and consistency of purpose over many years to rectify the health and care workforce supply problems.

My second and last related point on workforce is that the track record of the Department of Health on long-term planning is appalling. It is not just me saying that; it was made absolutely clear in the report by this House’s Select Committee on the Long-term Sustainability of the NHS and Adult Social Care, so ably chaired by the noble Lord, Lord Patel, who unfortunately, as we all know, is laid low by Covid. Those who support Amendment 80 should hear the arguments in the debate on Amendment 112, which would support its implementation. The noble and learned Lord, Lord Mackay, thought that something more elaborate than Amendment 80 was required. That may be the case, particularly for social care, but Amendments 80 and 112 complement each other. They are not rivals or alternatives; they put in place a structure thoroughly independent of government and which requires the Government then to pay attention to what has been independently provided.

Health and Care Bill

Lord Lansley Excerpts

Lords Hansard - Part 1 & Report stage
Tuesday 1st March 2022 Lords Chamber

[Lord Warner (CB)]

My Lords, very briefly, I support Amendments 171 and 178 in this group, spoken to so ably by the noble Baroness, Lady McIntosh, and the noble Lord, Lord Hunt. I do so as a former pharmaceuticals Minister and a former NICE Minister. The rather boring thing about all this is that the postcode lottery issue was alive and well when I stopped being a Minister, 15 years ago. It has continued to flourish throughout that time. The noble Lord, Lord Hunt, does not exaggerate in any way how the NHS is quite creative at finding ways around implementing speedily some of the drugs and medicines recommended by NICE.

For a long time, part of the problem has been—Amendment 178 starts to make a move in the direction that I think has been lacking—that we simply do not monitor enough what has happened to NICE recommendations and the take-up of new medicines. It is not really built into the regulatory system. If we are serious about inequalities—I have listened to many of the debates on inequalities today and previously—and levelling up, access to new medicines is pretty important. I have a terrible suspicion that, if we looked around very carefully, we would find that the same parts of the country, year in and year out, are not taking up the medicines as speedily as others. The reason I say this is that we know from the regulator’s evidence that the financial and clinical underperformers are, much of the time, the same places, year after year. I suspect that these are many of the places we need to look at if we want to tackle the postcode lottery of NICE recommendations.

[Lord Lansley (Con)]

My Lords, I join the debate briefly to add my thanks to the Government for the amendments on research that they have brought forward in this group. It is extremely helpful, as the noble Lord, Lord Kakkar, said, to entrench the concept of a research culture inside the NHS. In our various ways and guises, we have all encountered some of the difficulties of diffusing innovation and the take-up of new medicines in the NHS.

The point was made very well by the noble Lord, Lord Hunt of Kings Heath, but he did not say why the NHS does not adopt new medicines as rapidly as some other European systems have. I do not think we have more conservative clinicians than other countries, but we do not have a third-party payments system. We do not have a system whereby the patient can ask “What about this?”—these days, increasingly, they do—and the clinician can say yes, and pass the bill to somebody else. Instead, our system centrally determines the extent to which new medicines will be available. We have a particular requirement in the National Health Service for a system which looks for areas where there is value in innovation, disseminates it, takes it up and makes it available to patients.

I make two other points. One is to say thank you, as I am not sure I will get another opportunity to do so. We had substantive discussions about rare diseases; the noble Lord, Lord Sharkey, in particular spoke very well and fully about the needs involved, and the Government published their England Rare Diseases Action Plan yesterday. On orphan drugs, that will give significant additional impetus to the availability of treatments for those with rare diseases. I very much welcome that.

Secondly, Amendment 178 in particular is interesting. I do not necessarily advocate that we adopt it, but it asks the Government do something that they generally have not done and ought to do, which is to come back to the issue of access to medicines and treatments—and, I would add, to medical devices—and ask how well we are doing at the process of bringing that into effect and how well our Accelerated Access Collaborative, which is supposed to look at all these things and make them work together, is making that happen.

The beauty of Amendment 178, on which I will add just a little, is that we ought to have a very clear timetable for how we move the system forward. I hope the Government will adopt this. In January 2024, we will have the next voluntary pharmaceutical pricing and access scheme. The industry will be looking, rightly, to arrive at a position where all the initiatives mentioned give patients access to medicines in this country as soon as in any other healthcare system. On that basis, the industry will be prepared to understand that not just the NHS but the Government will look to get some pretty cost-effective prices out of it.

Now I do not happen to think that it is NICE’s job to make that relationship happen. I happen to think that NHS England is increasingly equipped to be a central player in this process. It should sit alongside NICE when it carries out health technology assessments in what is effectively a trialogue with the industry and say, “Well, how can we ensure that the patient has access to this medicine, and at what price? Can NICE act as the referee to establish whether the price and the incremental benefit are reconciled to be cost effective for the NHS?”

We should build that into the system over the next 18 months so that, when we start the new scheme in January 2024, the system is understood to work. It should not depend on large-scale transfers of money, with overpriced new branded medicines on the one hand being recycled back to the NHS to go into the innovative medicines fund on the other. This tracking of money around the system is not the best way to make it happen. We should aim for the industry to be paid what the health technology assessments and the NHS budget requirements mean is a fair price for the medicines it is providing—and that is what the industry should expect.

Everybody should be working to arrive at a position where, when a medicine obtains authorisation—in other words, when it is deemed safe, clinically effective and of good quality—and a clinician recommends it for a patient, the patient should have access to that medicine through the NHS. That is what we are aiming for. It has not always been true, but it ought to be in the future. We need a system that people, including clinicians in the NHS, understand and that supports their ability to prescribe medicines in that way.

[Baroness Thornton (Lab)]

My Lords, I do not intend to speak about this for very long, because I feel that I am the least well-equipped person in the whole Chamber to do so—possibly with the exception of the Minister, which is often the way and is how I felt when I was a Minister; I would stand up to speak about research and other huge subjects and everybody else in the Chamber who had spoken certainly knew a lot more than I did, and that is the case here.

Noble Lords may recall that the starting point at Second Reading and in Committee was that there was no place for research in the Bill at all—so I congratulate noble Lords who picked this up and ran with it, and, indeed, the Minister and the Bill team on taking it on board and producing these amendments. That is helpful; as the noble Lord, Lord Kakkar, said, it is about the future and it is exactly the right thing to do.

I also agree with the noble Baroness, Lady McIntosh, and my noble friend Lord Hunt in their disappointment on the issue of NICE. They are quite right about the access and availability of medicine and devices to healthcare practitioners and that the system is still uneven; also, of course, nobody is asking how we are doing and whether it is working. It is a shame that these aspects have not been included in the Bill, but I suspect that the noble Baroness and my noble friend will probably live to fight another day.

--- Later in debate ---

[Lord Kamall (Con)]

I thank the noble Lord for that intervention because I was just about to come to it. I should add that new Section 14Z30 very clearly requires ICBs to manage conflicts of interest at sub-committee level.

We think that the approach we have outlined will be more appropriate and possibly more effective than simply barring individuals with a conflict of interest—which, I encourage noble Lords to note, would also include NHS Providers and local authorities— from all committees with a commissioning function. First, this approach is broader than what the noble Baronesses might have intended. Secondly, many committees will have a range of functions, and commissioning may be only a small part of their activity. This approach risks creating a series of duplicated committees with similar interests to enable commissioning decisions to be taken in line with the amendment. This risks undermining one of the very purposes of this reform: to reduce bureaucracy and increase integration.

On Amendment 10A, we are clear that chief executive pay should be value for money. The pay framework is based on our ability to attract the highest-quality candidates. ICB roles, such as the chief executive, are some of the more complex in the health system. Experienced chief executives of trusts already exceed the suggested £150,000 per annum remuneration. Therefore, we do not believe it would be realistic to expect them to take a pay cut to take up a role with such a portfolio.

I remind noble Lords that putting the salary of an ICB chief executive into the Bill would be inappropriate. Such a lack of flexibility would be extremely unusual for a senior position and risks salaries declining in value over time, precisely as ICBs take on more responsibility as they become more established. This would fundamentally weaken ICBs’ ability to recruit and retain senior management. I also warn that directly tying pay to performance is likely to make it significantly harder to recruit chief executives to more challenging ICBs—precisely the organisations that we would want to recruit the very best leaders.

I hope I can reassure noble Lords that the recruitment process will ensure that only the most qualified people can take up these roles. All ICB chief executive appointees across England need to demonstrate how they meet—

[Lord Lansley (Con)]

I am sorry to interrupt my noble friend. I do not think we have debated Amendment 10A; it is not in this group.

[Lord Kamall (Con)]

I wish my noble friend had stood up the moment I mentioned Amendment 10A. I can only apologise. I have received advice to agree with what my noble friend said. I shall very quickly move on and I thank him for his vast experience of this.

Let me move on to a couple of issues raised about mental health. We expect mental health trusts to play a critical role in ICBs and ICPs. The Bill sets out a minimum requirement. It does not specify what sort of care NHS trusts or NHS foundation trusts deliver. As we said earlier in the debate, we hope that ICBs by local agreement go beyond the minimum requirements. We clearly want to see parity of esteem between mental health and physical health.

Noble Lords mentioned public health. The department and NHS Improvement publications have stated an expectation of an official role for directors of public health in ICBs and ICPs. This recognises the vital advisory and leadership roles of directors of public health in the system-wide effort across all domains of public health, which is amplified by the shift to a more preventive, collaborative and integrated systems focus on improving population health. We are working very closely with stakeholders to shape this official role in relation to ICBs.

Can I just check that we talked about Amendments 14 and 32? Yes, we did. This is a more interactive session than many noble Lords would have expected. Perhaps it will do as a sort of novelty. I believe that Amendments 14 and 32 are aligned closely with the skills mix amendment, and I hope that will go some way to satisfying concerns.

On guidance, I am able to reassure your Lordship’s House that NHS England’s regional teams are having ongoing discussions with CCGs and will deal with ICB leaders about the potential membership of the ICB board on establishment. These discussions are focused on ensuring that the board will be effective in discharging the statutory duties of the ICB. Looking beyond this, NHS England is able to issue guidance to ICBs and will engage with them—to understand what issues are emerging during the initial period of operation —and their committees and how they are working with stakeholders. In some areas, NHS England is already developing draft guidance. For example, the proposal is that each ICB will be expected to have a named lead with responsibility for commissioning for learning disability and autism.

On regulations, we think the rules as currently set out in the Bill, and with the addition of the new skills mix amendment, are sufficient and will give ICBs the space they need to develop effective systems in their area. The Bill already includes a regulation-making power that covers any provision related to ICBs’ constitutions, including ICB membership. Therefore, if we deem it necessary in future to be more specific about ICBs’ membership requirements, we retain the ability to do so through regulations. I hope I have been able to provide some assurance—sufficient assurance—to noble Lords and that they will not move their amendments when they are reached.

Integration White Paper

Lord Lansley Excerpts

Thursday 10th February 2022 Lords Chamber

[Lord Kamall (Con)]

It is important to stress once again that the key to this is that we cannot overly prescribe from here in Westminster and Whitehall. We must make sure that at whatever place, whether it is rural or urban, the people and patients who are cared for in the system are being understood. One reason why we want one person to be accountable, whether in urban or rural areas, is the fact that they must take responsibility for ensuring that all these things are joined up—not only health and social care as we understand them but technology, housing and all those other issues. I know that the right reverend Prelate and my noble friend Lady McIntosh have often raised this issue. We think that the proposal is flexible enough, whether in an urban or a rural area, to make sure that one person really understands the local area of integration.

[Lord Lansley (Con)]

My Lords, paragraph 1.11 of the White Paper states:

“Our focus in this document is at place level.”


Paragraph 3.11 goes on to state:

“Success will depend on making rapid progress towards clarity of governance and clarity of scope in place-based arrangements.”


As far as I can see, the Government are proposing that by spring next year such place-based arrangements will be put in place across the country, with a single accountable person to whom my noble friend referred. There is no reference at all to place-based arrangements in the Health and Care Bill. For years, the NHS has been saying, “We are creating integrated care systems but they don’t have statutory cover, so we want legislation that reflects our way of working”. The Government are now proposing legislation that creates a way of working with no legislative cover. I am afraid that this will not work unless the Bill changes to reflect place-based arrangements and a single accountable person, and defines adequately who they are, what their powers are and how their accountability works.

[Lord Kamall (Con)]

I thank my noble friend for that helpful intervention.

Health and Care Bill

Lord Lansley Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 31st January 2022 Lords Chamber

For these reasons, we wish to delete Clause 140. It should be replaced with the wording set out in Amendment 235 from the noble Baroness, Lady Greengross. I also need to say to the Minister that we do not expect him to move the government amendments tonight because a much wider discussion is needed in your Lordships’ House. I thank noble Lords for allowing me to speak at this point in the debate.

[Lord Lansley (Con)]

My Lords, we have reached the point where my noble friend on the Front Bench—who is doing his job well—should look round for support on his own Benches. I fear all he has got is me.

I can see the point he was making about the desirability of these amendments. If Clause 140 were to be proceeded with, they are improvements on the structure of Clause 140, but they rather illustrate the point that Clause 140 itself was brought forward at a late stage and was not fully thought through. I might say to my noble friend that I am a little confused as to how he can be asserting that these amendments are the result of implementation of the existing system, demonstrating a problem when—as far as I can see—Amendments 232A, 232B, 234H, 234J and 234K all relate to parts of the Care Act 2014 that were never brought into force. So they cannot, in practice, have resulted from the implementation of what he describes as the existing system.

I wanted to follow the noble Baroness, Lady Thornton, because what I have to say follows directly on from what she had to say. The noble Lords will recall that at Second Reading I made it clear that I thought it was best to take Clause 140 out—I still am of that opinion. If we were to proceed with Clause 140, the noble Baronesses, Lady Bull and Lady Campbell of Surbiton—the noble Baroness, Lady Bennett, not having a chance yet to explain—have explained very well the two central points about young adults. One is that they will not have had an opportunity to accumulate assets in their lifetime. The Dilnot report itself said:

“Anyone developing an eligible need up to the age of 40 should also face a zero cap, as we do not think that people younger than 40 can, in general, realistically be expected to have planned for having a care and support need, nor will they have accumulated significant assets.”


Of course, the point that was made very well by the noble Baronesses, Lady Campbell and Lady Bull, was that, even in so far as they have incomes derived from benefits, these may be taken into account in the means test, and so we would have a situation where, under the impact of Clause 140, they would have, potentially over many years, the erosion of whatever benefits are intended to be achieved for precisely that reason. So I very much support Amendments 233 and 234.

My point more generally is that when we get to Report I hope we will have a fuller Chamber and a fuller opportunity to explain why we should take out Clause 140. Of course, in part, in doing this—I see the noble Lord, Lord Warner, standing by ready to explain what the Dilnot commission, of which he was a member, said—I am in a sense defending the Dilnot report and its implementation. I asked Andrew Dilnot to undertake the review, and it reported to me.

I noted that, on Report in another place, Matt Hancock said:

“The reason that the Dilnot system, as previously proposed, was never put in place was that there was never a proposal to pay for it”.—[Official Report, Commons, 22/11/21; col. 111.]


I have to tell him that he was a Back-Bencher in 2010-11 and there was a proposal to pay for it. It was not a Dilnot commission proposal; it was my proposal, and it would have had significant benefit in that, because it would have removed the domiciliary care exemption on the means test, it would have rebalanced domiciliary care and residential care in the social care system. It would of course have meant that, very often, those who were benefiting from the cap and had significant housing assets would have contributed towards it.

I also proposed that the winter fuel allowance should not be made available in future to older people who were higher rate taxpayers. The net effect of these two measures was about £2 billion a year, which at the time would have been enough to pay for it. The Treasury, of course, said no, because 100,000 people a year would benefit from the cap, 200,000 people a year would have to pay into the system, and therefore it was not a good idea. Politically, the Treasury was completely wrong then, and probably it is completely wrong again in bringing forward the proposal encapsulated in Clause 140.

I will just elaborate and then I will stop. On Report in the other place, the right honourable Mel Stride said of what was then new Clause 49, now Clause 140:

“The first we heard of it was not in Committee”—


there were 12 sittings of that, until 2 November—“or in September”, when the tax measures were announced, “but on Wednesday evening”. This was Monday evening, and the first they had heard of it was the previous Wednesday evening when the amendment was tabled. So it was strictly last-minute but, even in the time available, a significant number of Members of the Conservative parliamentary party in the other place had their reservations. The clause was passed with a majority of just 26, with 19 Conservative Members of Parliament voting against it. Quite a number spoke, including Kevin Hollinrake, who said that

“there is no doubt that the way that the cap works means that it is less generous for those with more modest assets.”—[Official Report, Commons, 22/11/21; cols. 115-47.]

The objective—which, as I remember, was calculated on the back of the Dilnot report—should be that, broadly speaking, whatever your level of assets, there is a maximum level of loss of assets resulting from the implementation of the cap with a means test. If I remember correctly, it was about 45% loss of assets for those with the least assets; it would not exceed that. Of course, for people with lots of assets, the loss of their assets is significantly below that percentage. But now we have ended up with people with a large amount of assets having a potentially very low loss of assets and they are the principal gainers; people with very few assets, but some, may well lose them all. This cannot be right, and it cannot be fair. It is quite clear that Members of the other place, including a significant number of Conservatives, want to think about this again. When it comes to Report, if we take Clause 140 out, we will rightly give them the opportunity to do so.

Health and Care Bill

Lord Lansley Excerpts

Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Lord Patel (CB)]

My Lords, I support all the amendments in the name of the noble Baroness, Lady Cumberlege. She introduced them very comprehensively and I agree with what she said. My noble friend Lord Stevens of Birmingham added to it, so much has already been said and I need to be extremely brief.

I concur with my noble friend Lord Stevens of Birmingham that outside bodies, including professional organisations in medicine, oppose these powers and that they will lead to more chaos rather than solving problems. As a clinician, I find the unchecked powers for Secretaries of State over local service reconfigurations that the Bill proposes astounding. Local service reconfigurations should be driven by clinical advice and expert assessment of what services are needed to meet the health needs of a local community with patient safety at the heart, as well as considerations about what resources are available in terms of workforce, infrastructure and the proximity of alternative services.

The powers in the Bill would allow the Secretary of State to initiate service changes without any consultation. How can any Secretary of State feel sufficiently qualified to be making unilateral judgments about what constitutes “safe”? The existing, largely successful, processes, which have already been mentioned, take account of clinical advice and the views of local communities in the final decision have been effective. The noble Baroness gave the example of Kent and Medway stroke services, which were held up by the Secretary of State, not by the consultation. I strongly support these amendments and I hope that the Minister will think about removing the provisions from the Bill.

[Lord Lansley (Con)]

My Lords, I shall be brief. I put my name to Clause 40 stand part, and I think that is the best way to go. I shall add one or two things. First, as Secretary of State, I asked the now noble Lord, Lord Ribeiro, to lead the independent reconfiguration panel, and I never had cause to regret doing so. Secondly, I can say something which other noble Lords cannot, because I am on this side, and I am hoping that we continue to have Conservative Secretaries of State for many years hence. They will be much better off if they do not do this. If the Government take Clause 40 out, they will equally not regret doing so.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I described at Second Reading, or at some point in a meeting with the Minister, an attempt to save Ministers from themselves. I do not understand why on earth the Government want to put this burden on them. The Government have set out an ambitious programme for reform of the NHS. Why put in a clause that guarantees that that reform will be stalled? We know that reconfigurations—most of us have experienced the issue locally, if not nationally—are very difficult. There is always local opposition, often from some leading consultants, and to get it through you have to be very determined. The noble Lord, Lord Warner is right; once Ministers can intervene at any point—for example, if an MP’s local services are threatened with an unpopular change—even in the Lords, the pressure on them to intervene can be huge.

--- Later in debate ---

When the Bill receives Royal Assent and becomes an Act, it will be open season on the Minister and his colleagues. On any reconfiguration where the local MP is troubled, inevitably Ministers intervene, or they use the review device. Consider the issue of children’s heart transplants and the attempt over 20 years to rationalise it, and the utter failure of that approach; that is but one example of the kind of energy that you can get the moment Ministers have powers of intervention.

[Lord Lansley (Con)]

If anyone cares to look at it, it was also a very good illustration of the benefits of the Independent Reconfiguration Panel. Not only did it do something that Ministers could not do; it also did something that NHS management did not do. It is not that we are giving it back to the NHS to do what it likes—it genuinely does something independent.

[Lord Hunt of Kings Heath (Lab)]

Indeed, we have a rigorous process involving the overview and scrutiny committee, as has been said, plus an Independent Reconfiguration Panel. As the noble Lord, Lord Stevens, said, it is rather like the last debate: before us we have a set of amendments which seek to constrain the power of Ministers, and then an amendment which seeks to remove this power. I am clear that we should try to remove this power, and that this is the best course. It will be very interesting to hear from the Minister exactly why Ministers want to put this burden on them, and what benefit they can possibly see in it.

--- Later in debate ---

These amendments would ensure that the stop-start model—removing permission and then reinstating permission—that many trusts such as Watford General Hospital face over years would be less capricious. It would give foundation trusts more assurance to long-term planning, avoid the high level of emergency repairs and need for temporary provision, and, above all, be a more transparent and fairer way to deliver capital expenditure. Without the 2019 agreement, we risk putting foundation trusts back in the parlous stop-start model.

[Lord Lansley (Con)]

My Lords, I intervene briefly to say that I support the amendments in the name of the noble Lord, Lord Crisp. We are grateful to him for tabling them, and indeed for presenting them so very well.

I also rather enjoyed the opportunity from the noble Baroness, Lady Brinton, to think back to 2011, as I think it was, when I went to visit Watford General—I probably announced a new hospital then, but I cannot quite remember. She said the local connections were all funded by the local authority, and I seem to remember paying for the roundabout outside Watford General Hospital, because it was so instrumental to the process of the redevelopment. Anyway, that is by the way.

What I am really looking for from my noble friend on the Front Bench is to understand the mischief to which the Government’s proposals in Clause 54 are the remedy. Certainly, when I was Secretary of State—which is a long way back; we were not in deficit but we did not have a lot of money—the issue every year with the capital expenditure of FTs was that they always told us that they were going to spend a lot and then did not spend anything like as much. To account for that in the public accounting system, we had to make some heroic assumptions about how much less they would spend than they said they were going to spend.

It may be that the department is saying that the way we get round all this is to set very tight limits in the first place—to say where we think they are going and what we think they can spend. This, frankly, is a recipe for disaster for many trusts, because the reason they underspend is that there are so many difficulties in planning and executing capital expenditure projects.

I am trying to find out the purpose behind the Government taking such strong powers in relation to capital expenditure. I rather hope that they might see merit in the amendment from the noble Lord, Lord Crisp.

[Lord Stevens of Birmingham (CB)]

My Lords, I will be brief. In response to the noble Lord, Lord Lansley, in fairness, there is logic to the broad direction being set out by the Government here. As the financial health of foundation trusts improves, their ability to seek self-generated capital investment will, in all likelihood, be much higher, looking over the next four or five years, than it has been during the more constrained financial circumstances of prior years. So it is not unreasonable to have a set of measures in the Bill that would enable Ministers to ensure that the NHS sticks with the capital expenditure, voted for by Parliament, for the NHS in any given year; nor is it unreasonable on the part of the Government to seek to ensure that there is a mechanism by which that capital can be allocated fairly across the country according to need, rather than purely according to an individual institution’s ability to finance it.

All that being said, rather than this being a fundamental matter of principle in the way that our last two discussions have been, these amendments have a lot to commend them. They are entirely pragmatic and put the right safeguards around what should be only an emergency power. As the noble Lord, Lord Crisp, laid out, that was the basis on which a consensus was achieved back in 2019. It provides good incentives at trust level for sound financial management and, frankly, it provides a bit of a pressure release or a safety valve against an overly artificially constrained capital settlement in certain years or parts of the country.

I very much hope that, in the constructive spirit with which I think these amendments are being advanced, this is something that the Government might consider favourably.

--- Later in debate ---

Debate on whether Clause 68 should stand part of the Bill.

[Lord Lansley (Con)]

I am sorry to interrupt when the Committee was making such good progress. This clause brings into effect Schedule 10 as an NHS payment scheme, which is to replace the national tariff. Unlike the debates that we have just had about Clauses 39 and 40, I have initiated this stand-part debate not to argue that we should simply take it out but because I simply do not understand yet what the precise differences are that the Government intend between the national tariff and the new payment scheme. I am trying to find out more about it in order that we stand some chance, not least at Report, of seeing whether there is a reason to amend or simply approve what the Government are proposing.

We could have a long debate about this but I am not proposing to do so. If I may, I am going to ask a few questions of my noble friend but do not expect to receive all the answers straight away. These are often things that are easy to put down and send to noble Lords, because we will then have a chance at this stage to think about them before Report.

I can see one obvious difference. In new Section 114A, inserted by Schedule 10, new paragraph (b) includes in the payment scheme provision for payments for public health functions under the NHS Act 2006, which is specifically excluded in the tariff. I can see a difference. Beyond that, I start to lose track of what the differences might be.

The tariff under the 2012 legislation allows not only for payments for episodes of care but for services to be bundled; it allows for year of care budgets; I think it allows for—I cannot see any reason why it does not, and certainly work was done to look at this—outcomes-based pricing; and it allows for local price agreements or national prices. Many of the things which, on the face of it, the new payment scheme is designed to allow, seem already to be allowed. What are the differences?

My first question to my noble friend is this. There is no reference in the new NHS payment scheme to what are effectively national prices, such as the national tariff—if we ignore the word “tariff” and remember that it includes the word “national”. To what extent is the new NHS payment scheme designed to do away with national payments or national prices? In new subsection (3), there is different provision for the same service by reference to different circumstances or areas. We could therefore have regional and local pricing set nationally. That, to me, is an innovation, though I am not sure whether or not it is intended.

Secondly, the national tariff made specific reference to non-discrimination between providers by reference to their status, including, specifically, not paying private providers more than could be paid for a public sector or NHS provider. This new payment scheme refers to different provision for different descriptions of providers. Is it intended that the power should be taken back to pay different amounts to private providers than are paid for public sector providers?

On the payment scheme, there is a very complicated subsection, subsequent to that, that talks about provision of services resulting in

“a fair level of pay for providers of those services”

and refers to differences in costs and services provided. What is intended by that? On differences in services provided, I can see, for example, that if a price is being paid to one provider for a routine service and another provider—which may often be the NHS provider—provides intensive care back-up, the fact that this back-up is available should be reflected in the price they are paid, because, inherently, they have to provide additional resources for it. Is that what is intended? Are other differences likely to result from this?

I then come to my final, and in a way most important, question. I have discussed the point about the Government appearing—the noble Lord told me I was wrong about this—to have abolished the purchaser-provider split. Maybe I was wrong, because here, under the rules that are to be set, we find that they

“may allow or require a price to be agreed between the commissioner and the provider of a service.”

Under all this, the purchaser-provider split has re-emerged, somewhere in Schedule 10. Is that what this means, and is it to be agreed by negotiation or by reference to some other mechanism? One of the fundamental issues about the national tariff was that it was intended to be a negotiated outcome between NHS England and NHS Improvement, on behalf of the commissioners on one side and providers on the other. Who is going to engage in these negotiations and who will be the court of appeal, as it were, in relation to that? What is intended by the Government?

I ask all these questions because we just do not know any of the answers—I certainly do not, but maybe I am missing something. If the Government can share further information about some of these points, that would help me to know whether we want to help speed the clause on its way, or interfere with amendments on Report. I move that the clause does not stand part of the Bill.

--- Later in debate ---

[Lord Kamall (Con)]

I thank the noble Baroness and echo her gratitude to all the noble Lords who have turned up for this group of amendments.

Before I turn to specific amendments, it may be helpful to make a few general points about the new payment scheme and explain why this clause should stand part of the Bill. For many years, the national tariff improved access to services and drove up quality across the NHS. The new scheme will build on that success. NHS England will continue to make rules determining the price paid to a provider, by a commissioner, for healthcare services for the NHS, or for public health services commissioned on behalf of the Secretary of State. Also, expanding the powers to enable NHS England to set prices for public health services, such as maternity screening, will allow for seamless funding streams for different care episodes.

However, we need to update the NHS pricing systems to reflect the move towards a more integrated system focused on prevention, joint working and more care delivered in the community. This will support a move from a “payment by activity” approach, towards an approach that promotes integration and early intervention, while discouraging perverse incentives for patients to be treated in acute settings. It will allow flexibility over the current pricing scheme, and allow rules to set prices, formulas and factors that must be considered when determining the prices paid. I assure noble Lords that, when developing the scheme, NHS England will continue to consult any persons that it considers relevant, which will include ICBs, NHS trusts and foundation trusts, as well as trade unions and representative groups. I share the sentiments of the noble Lord, Lord Davies, about the valuable role that trade unions play in a free society.

I turn briefly to the points made by my noble friend Lord Lansley. On regional variation, the NHS payment scheme will encourage commissioners and providers within an integrated board area to work together to agree prices that are in line with the rules set out in the scheme. To date, only one provider has applied successfully for local modification, and closer working within ICBs should remove the need for disputes. On paying different providers differently, there may be scenarios where it is appropriate to pay non-NHS providers different prices from those paid to NHS providers, to take into account differences, different starting costs or a different range of services provided. There may also be cases where the financial regimes of different providers make it appropriate to set different prices or pricing rules. When setting any prices, NHS England will aim to ensure that prices paid represent a fair level of pay for the providers of those services, as well as fair pay between providers of similar services. We will not introduce competition on price rather than quality. We hope that these changes will increase the flexibility and reduce transactional bureaucracy at the ICP level.

I must disagree with the proposal in Amendment 199. While the Secretary of State will remain responsible for setting out overall funding for NHS England, NHS England, alongside Monitor, has set the rules successfully since 2013. I cannot see the benefit of this duty being transferred to the Secretary of State, beyond separating it further from those making operational decisions in the system. Following that logic, we must also reject Amendment 202A. However, I assure noble Lords that the payment scheme will be published in the usual way, and your Lordships will of course be able to table Questions, secure debates, hold us accountable and ensure that the mechanism is scrutinised.

I turn to Amendments 201B and 201C. As part of the broad consultation duties, we expect NHS England to work closely with trade unions and staff representative bodies, such as the Social Partnership Forum, NHS Providers, the Healthcare Financial Management Association and all the royal colleges, when developing the national tariff.

On Amendment 200, I assure your Lordships that the NHS payment scheme will be published by NHS England following consultation. The Secretary of State will also have the general power to require NHS England to share the NHS payment scheme before publication, not to publish a payment scheme without approval, and to share the contents of the scheme should that be necessary.

On Amendment 201A, in setting the rules for the payment scheme, NHS England will of course want commissioners to consider staff pay, pensions and terms and conditions. NHS England will continue to take account of cost growth arising from uplifts to Agenda for Change. New Section 114C makes it clear that, before publishing the payment scheme, NHS England must consult any person that it thinks appropriate. Again, in practice we expect this to include representative bodies and trade unions. NHS England must also provide an impact assessment of the proposed scheme.

I hope I can reassure noble Lords that the department and NHS England remain committed to Agenda for Change. Independent providers will remain free to develop and adopt the terms and conditions of employment, including pay, that best help them attract and keep the staff they need. However, we expect that good employers would set wage rates that reflected the skills of their staff.

On Amendment 202, it is right that the commissioners and providers of NHS services should be able to make representations and, if they feel it necessary, object to pricing mechanisms set by NHS England in the payment scheme. That is why we have retained the duties to consult commissioners and providers. We have also retained the ability for ICBs and providers to make representations and to formally object in response to consultations on the NHS payment scheme, as they can with the national tariff.

The current prescribed thresholds are set by the National Health Service (Licensing and Pricing) (Amendment) Regulations 2015, and the current objection thresholds since 2015 have been set at 66%. My department consulted on these thresholds in 2015 and it remains the Government’s view that they are proportionate, preventing the delay of future payment scheme publications and giving the NHS the certainty that it needs to plan for future financial years.

If I have not answered all the questions from my noble friend Lord Lansley and others, I ask noble Lords to remind me and I will write to them. This has been a very important discussion—as we can see by the attendance—and I hope I have given enough reassurance to noble Lords for them not to move their amendments and have explained why the clause should stand part of the Bill.

[Lord Lansley (Con)]

My Lords, I am most grateful for the Minister’s response to that short debate and for the other contributions. I shall certainly look at the Court of Appeal judgment—was it the Court of Appeal? —and try to work through precisely where the problems are. There are two ways of dealings with this issue. One is to scrap the national tariff and put in a new payment scheme. The other is to start with the national tariff and ask what the problems are and how we are going to deal with them, and I would quite like to work that through.

We may come back to this because there is an issue about how far the payment scheme is a national payment scheme and how far it becomes a local and varied one. That is a very interesting question, as is the way in which discrimination between providers may be implemented and for what purposes.

For the moment, though, I am very grateful to my noble friend for his response and for his promise to follow up on issues.

Clause 68 agreed.

Health and Care Bill

Lord Lansley Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 24th January 2022 Lords Chamber

Non-clinical organisations should have the core costs of providing services to the NHS realistically funded, and provider organisations should be enabled to budget over sensible periods of time. That way, they will be able to provide a more reliable and higher-quality service. On financial grounds alone, it is in the interests of the NHS to invest constructively in the non-clinical sector in order to ensure that high-quality services are available when and where they are needed. If enabled to do this, the sector would provide remarkable value for money for the NHS.

[Lord Lansley (Con)]

My Lords, I am pleased to follow the noble Lord and I endorse the points he makes about the diversity of provision, which is certainly something that we should aim for; I am not sure how we will make sure it is in the Bill, but we will get to that later on. I will not dwell on the other amendments; I will simply explain why I oppose Clause 70 standing part. I was pleased to see that the noble Baroness, Lady Thornton, shares that view, although she may do so for different reasons.

This gives me an opportunity to explain something that I have been saying to Ministers—not necessarily these Ministers but their predecessors—for the last two or three years: if the NHS took the view that the structure of the procurement regime that was applied to it was a constraint, cumbersome and the various other words that it used, Ministers could do something about it very quickly because, in the legislation, they have the power to change the regulations. So why do they not do so? I also want to explain that the existing regulations do not impose some of the constraints that it is argued they do. That begs the question behind my opposition to the clause standing part: why are we legislating in this way in this clause, when the effect is to remove a power to make regulations relating to the procurement regime in order to then put into the Bill a power to do just that? It really does nothing much more than that.

Of course, in truth, we do not know what these new regulations will look like because they have not been published, as the noble Lord, Lord Hunt of Kings Heath, rightly said. The issue lies in the regulations because, as I will demonstrate, what mattered to the service, as it turned out, was not what was in Section 75 of the 2012 Act but what was in the subsequent 2013 procurement, choice and competition regulations. I am sorry, but this is going to take a few minutes.

Clause 70 does nothing much more than refer to the fact that there should be transparent and fair processes, that “managing conflicts of interest” should take place and that compliance should be verified—I do not know quite what that means but it is probably a good thing. It also makes reference to general procurement objectives. You might ask what those are, since they are not specified in Clause 70 itself.

If one goes back to the previous legislation, one gets to the point in the NHS (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013, which are also revoked later in Clause 70. In the regulations, there is a paragraph that says what the procurement objectives are:

“for the purposes of the NHS … a relevant body must act with a view to … securing the needs of the people who use the services … improving the quality of the services, and … improving efficiency in the provision of the services”.

I rather hope that we are not yet encountering anything to which people would object. It then goes on to say:

“including through the services being provided in an integrated way (including with other health care services, health-related services, or social care services).”

Frankly, we have had years now of people explaining that the legislation did not allow them to do things in an integrated way. But when one looks back to 2013 and the regulations brought in, they say that the objective is to do things in an integrated way. I slightly wonder why the NHS did not do that, rather than complain that it could not.

Let me go on. When looking at the general requirements of procurement subsequently in that regulation, it includes the provision to

“act in a transparent and proportionate way, and … treat providers equally and in a non-discriminatory way”,

and wants projects delivered with “best value”. So far, again, there is nothing to which people object.

In Regulation 3(4) we hit something that people might object to. In defining what quality and efficiency look like, the regulations go on to say that the services should be

“provided in a more integrated way”—

which we have already heard about, and it repeats exactly that point—

“enabling providers to compete to provide the services”.

This may be where the objection came from, in which case my argument to Ministers is this: if that is what you do not like in the regulations, omit it from them. Ministers could have done it literally in a matter of weeks.

What is the other objection to the existing structure of the legislation? Section 75 of the Health and Social Care Act 2012, about the power and what it should be used to do, talked about good practice in procurement and the right to patient choice. I mentioned in a previous group the importance of, in my view, putting the right to patient choice into the provider selection regime, but we will come on to that again at a later stage.

Here is a third point, and something to which I think some people objected to, and have objected to subsequently; that providers

“do not engage in anti-competitive behaviour which is against the interests of people who use such services.”

I might say that if the anti-competitive behaviour is in the interests of the people who use those services, it is not necessarily objectionable. However, when one looks further, Regulation 10 of the subsequent regulations describes the circumstances in which anti-competitive behaviour might be justified:

“unless to do so is in the interests of people who use health care services … which may include … the services being provided in an integrated way”.

We keep coming back to this.

The other point I would make—she is not here, but the noble Baroness, Lady Blackwood, said it at Second Reading—is that the NHS objected to the fact that it was required to engage in compulsory competitive tendering. Section 75 of the 2012 legislation says that the regulations may

“impose requirements relating to … competitive tendering”,

as well as to the management of conflicts of interest, but it does not require the regulations to be made at all, and it certainly does not require the regulations to include compulsory competitive tendering, and nor do the subsequent regulations published in 2013 require that.

All of that leads me to the conclusion that Section 75 of the 2012 Act simply creates a power; it does not need to be changed for new regulations to have been made. Section 75 says that subsequent 2013 regulations may be objectionable to people in so far as they refer to qualified providers and to competitive tendering. If that was the problem, you should revise the regulations, publish them, take out the bits you object to and give the NHS a provider selection regime that fits their anticipated needs. The objectives are all there: quality, efficiency, best value, fairness, proportionality and an integrated service—and an integration, if that is what this Bill is all about, was already there in the 2012 legislation.

My question to my noble friend for before Report, and the question asked by the stand part debate, is: why are we doing what we are doing in Clause 70? Cannot we do it perhaps more simply and effectively by amending the existing legislation, rather than by trying to do wholesale repeals, introducing something that we will not know what it looks like until after this Bill has passed through this House?

[Lord Sharkey (LD)]

My Lords, Amendment 213 is in my name and that of the noble Baroness, Lady Thornton, and I am very grateful for her support. I can be briefer than I was expecting to be, given what the noble Lords, Lord Lansley and Lord Hunt, have said in the last few minutes.

My amendment addresses another instance of an attempt by the Government to bypass parliamentary scrutiny, and it proposes in response an enhanced form of parliamentary scrutiny. As the noble Lord, Lord Hunt, remarked, the DPRRC report on the Bill notes that the delegated powers memorandum says that, although initial consultation has been carried out by NHS England on the content of the procurement regime, full analysis has not been completed and there has not been time to produce a more developed proposal. Clause 70 gives the Minister the power to impose a new procurement regime, without giving any details of what it might be. This is the clearest possible example of the Government taking powers to make policy without specifying at all what that policy may be.

The DPRRC rejects the inclusion of regulation-making powers as a cover for inadequately developed, or undeveloped, policy. What is worse, the delegated powers memorandum says that a Cabinet Office procurement Bill will most likely follow this Bill, and it may require some amendments to the regulation-making powers that we are discussing in this Bill. The regulatory powers in question are to be subject to the negative procedure. I think we all, except for the Government Front Bench, would recognise that the negative procedure is emphatically not effective parliamentary scrutiny.

What we have here is a skeleton clause, with regulation-making powers of very broad scope. There is nothing in this clause, or in the Bill more generally, which would in practice constrain how broadly these powers could be used in constructing a procurement regime. It would probably be better, from the point of view of parliamentary scrutiny, to leave out Clause 70 entirely, as the noble Lord, Lord Lansley, my noble friend Lady Walmsley and the noble Baroness, Lady Thornton, propose, and wait for the full policy to be set out in the Bill, as promised to follow soon from the Cabinet Office.

If the Minister can advance compelling reasons why this Bill should be the vehicle for setting up the procurement regime by regulations, there is one route we could take, as set out in my amendment. This amendment imposes the super-affirmative procedure on the delegated powers proposal. The super-affirmative procedure is designed and used to deliver a measure of real scrutiny in circumstances that require it. In proceedings on the recent Medicines and Medical Devices Bill, the Minister very helpfully summarised the super-affirmative procedure as follows, saying that the

“procedure would require an initial draft of the regulations to be laid before Parliament alongside an explanatory statement and that a committee must be convened to report on those draft regulations within 30 days of publication. Only after a minimum of 30 days following the publication of the initial draft regulations may the Secretary of State lay regulations, accompanied by a further published statement on any changes to the regulations. They must then be debated as normal in both Houses and approved by resolution.”—[Official Report, 19/10/20; col. GC 376.]

According to the Library, the last recorded insertion in a Bill of a super-affirmative procedure was by the Government themselves, in October 2017, in what became the Financial Guidance and Claims Act.

I repeat that, if the Minister really can convince us that he has a compelling reason to have this new procurement regime set up by regulations in the Bill, my amendment would provide the opportunity for detailed parliamentary scrutiny. If he cannot accept that, then we would be wise to take out Clause 70 in its entirety.

--- Later in debate ---

[Lord Kamall (Con)]

We do not believe that they are, but clearly there is a difference of opinion about it.

I would like to turn, however, to the point made by my noble friend Lord Lansley on Clause 70. The regulations that we create under Clause 70 will have a broader scope than those currently created under Section 75. The provider selection regime will include public health services commissioned by local authorities, thereby recognising their role as part of joined-up health services delivered for the public. While we always want to act in the interests of people who use our services, our regime recognises the reality that in some cases integration, rather than competition, is the best way to achieve this for the health service. Finally, removing the section and creating a new bespoke regime, is—despite the scepticism of the noble Lord, Lord Warner—what the NHS has asked for. There is strong public and NHS support for scrapping Section 75 of the 2012 Act—

[Lord Lansley (Con)]

I am sorry—it is getting late—but will my noble friend at least, at some point, tell us: did Ministers ever challenge the NHS on whether what it was asking for required primary legislation? Did they ever ask, “What are you trying to achieve?”—and then let us, the Government and Parliament, who actually pass the legislation, see how it should be achieved? Or has Parliament in practice now become merely the cypher for the NHS?

[Lord Kamall (Con)]

I take the point that my noble friend makes, and I completely understand the concerns; that is why it is important that I take many of the concerns raised today back to the department.

Clause 70 inserts a new Section 12ZB into the NHS Act 2006, allowing the Secretary of State to make regulations. I have a lengthy explanation here but, frankly, I am not sure that it will pass muster. If noble Lords will allow me to go back to the department—I may be a sucker for punishment, but I accept the concerns and I will go back—

Health and Care Bill

Lord Lansley Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 24th January 2022 Lords Chamber

[Lord Rennard (LD)]

My Lords, I support Amendments 109 and 226 in this group, both of which are in my name and that of the noble Lord, Lord Hunt of Kings Heath. I will address them from the perspective of people with diabetes and with the support of the Juvenile Diabetes Research Foundation and Diabetes UK.

It is just over 100 years since insulin was discovered. Before 1921, a type 1 diabetic would live for no more than a year or two from when the condition became discernible. In the 1920s, my father, a World War I veteran, developed diabetes, and he was very fortunate that this was the decade in which insulin was discovered. It was so successful that it enabled him to have a long and happy life—indeed, I was born when he was 71, and my younger brother was born when he was 73.

Much progress has been made in the treatment of diabetes over the last 100 years, but we are not making the most of technological developments relating to insulin use and diabetes management. I have struggled with these issues myself, and I have learned much about them since I became dependent on insulin in 1994. I personally have enormous reason to be grateful to the diabetic team at St Thomas’ Hospital, just over the river from us, but not everyone with diabetes gets that standard of care, and progress with the adoption of the most recent technology is simply too slow.

There have been great developments in wearable medical technology, such as insulin pumps, flash glucose monitoring and continuous glucose monitoring. We are making progress with such innovations and in NICE’s obtaining approval for them, but they are often not widely accessible. Access to technology, including linking a person’s insulin pump and a continuous glucose monitor, may help a person to self-manage their condition in the absence of routine NHS support. The long-term cost savings are demonstrated by the wider use of such technology in insurance-based systems, where the outlay must be justified by reducing the costs of later complications, which can be very considerable.

Diabetes probably now takes up 10% of the NHS budget, and 80% of the cost of diabetes relates to complications, with the largest costs arising from excess in-patient days, cardiovascular disease and damaged kidneys and nerves. The latest technology may enable parents of young people with type 1 diabetes to obtain a full night’s sleeping soundly, knowing that their child’s glucose monitor will issue an alarm and wake them up if they experience a severe high or low-glucose episode. New technology has been shown to support blood glucose stability and to lower average blood sugar levels, reducing potential health complications and hypos or hypers, which can lead to coma or even death if not treated. There are great benefits to physical and mental health from better long-term control of blood sugar levels.

Research by JDRF shows that barriers to the uptake of this technology include the fact that many clinicians are not trained in it and that the pressure on appointments means that there is often not time to discuss treatment options. Amendment 109 would require NHS England’s oversight framework for integrated care systems to include a metric on the percentage of diabetes patients in their area accessing diabetes technology. An embedded requirement that would better support the prescription of technology would incentivise better training for clinicians and encourage more time to be provided in appointments to discuss technological treatment options and any potential fears or concerns of the patient.

Amendment 226 concerns the promotion of self-management using the latest technologies. We need it in order to reduce the number of people with diabetes suffering from complications, which may include sight loss and problems with their feet, presently resulting in around 6,000 amputations per year. When in hospital, people with type 1 diabetes require five times more secondary care support than people without diabetes, so it is essential that the NHS invests in technology that can significantly reduce the instances of hospitalisation and adverse health outcomes for people with type 1 diabetes.

[Lord Lansley (Con)]

My Lords, I thought those were very interesting and helpful remarks from the noble Lord, Lord Rennard. They serve to remind us of the importance of self-management in securing the best possible outcomes for patients. I just add the thought that, when the Government promulgate regulations relating to patient choice, one of the things we want to include is shared decision-making between clinicians and patients. In my observed experience, that too can deliver better outcomes. I think we have made significant progress in recent years in encouraging shared decision-making, and I hope we will see that come forward.

In moving Amendment 72, the noble Lord, Lord Warner, touched on a range of issues. I will not go down one or two paths, but I highlight that we will need to think hard about the interconnections between the question of patient choice and how far patients continue to be given choice. We need to ensure that it is not just talked about in the constitution or in regulations that say it is generally a good thing. For choice to happen in practice, subsequent clauses in the Bill relating to procurement, such as Clause 70, need to enable a choice of providers. The noble Lord made that perfectly clear.

The clause relating to payment systems—Clause 68, if my memory serves me correctly—still needs to have a “money follows the patient” approach. It is not me saying that these are all good things; they were put in place by the Blair Government, not the coalition Government, who did not do away with them but entrenched them.

I am worried. I will just make this point about Clause 70, the effect of which is to repeal Section 75 of the 2012 legislation. Included within that was that one of the requirements of the procurement regulations would be to support the right to patient choice, and the Government are proposing to repeal that.

The Minister may well, perfectly correctly, say, “That may be so, but we have the power in this Bill to set regulations relating to patient choice”, but this is separate, and, in the event, we may find that the link is broken between procurement and payment and patient choice. The net effect would be that patient choice is vitiated. I am worried, for exactly the reasons that I think the noble Lord, Lord Warner, is worried, that what has been around for some 18 years in one form or another—the expectations on the part of patients that they can exercise choice—may not be able to be exercised in practice because the preference of the NHS in many of these localities is to operate as a monopoly and not to give any opportunities for that choice actually to function.

Our debate on this group would be far better and easier to have—and might not even be needed—if the Government published the regulations under Clause 68 in draft so that we can see what they are proposing to do. They have not done it; between now and Report they could do it. When we get to Report, we are going to have a very difficult—certainly from my own personal point of view—set of conversations about how patient choice is to be exercised, how the NHS is to get best value from its procurement, and how trusts and providers are to be paid appropriately, rather than simply go back to block budgets. How do we get out of that debate? The answer is: let us see what the regulations the Government are proposing—in this case relating to patient choice—actually look like, and let us see it before Report.

Health and Care Bill

Lord Lansley Excerpts

Committee stage
Thursday 20th January 2022 Lords Chamber

[Lord Stevens of Birmingham (CB)]

My Lords, I had not intended to speak but, animated by the contributions of colleagues who, like me, were there at the conception of NICE, I thought I would offer a couple of contextual remarks to this group of amendments, supporting their underlying motivation, which is to ensure the spread of best practice as fast as possible across the National Health Service.

I was also motivated by the noble Baroness, Lady Watkins, who spoke earlier about the Crimean War, to recall that this is not a new problem. The world’s first controlled clinical trial took place in 1754 on board HMS “Salisbury”, when the Royal Navy was trying out the use of citric fruit—in lemons and limes—to combat scurvy. That experiment showed that scurvy could be tackled with lime juice, and it took the Navy 41 years to mandate its introduction more widely—fortunately, just in time for the Napoleonic Wars, which is why some argue that, contrary to Winston Churchill’s dictum that it was “rum, sodomy and the lash” that contributed to the Navy’s success, it was in fact lemon and lime juice.

The point is that this is not a new problem. We have been grappling with this but, despite that, we have seen the remarkably quick adoption of new clinical practices over the last two years during Covid, as new randomised control trials, following in the wake of the 1754 example, have shown the benefits of treatments such as dexamethasone. My point of context is that we need to be clear, if this group of amendments is to advance, about the terminology incorporated in the amendments. These will inevitably be, if they find their way into the Act, litigated against in the High Court and Court of Appeal.

In the drafting, there is reference to the marketing authorisations given by NICE, although I think it is the MHRA that provides marketing authorisations. There is a clear distinction to be made between the technology appraisals NICE undertakes and the development of guidelines. Although a number of noble Lords have referenced the importance of the guidelines, it is worth saying that a quick look at the NICE website reveals there are 1,591 guidelines, pieces of advice, quality standards and all the rest of it—most of which have not been subject to the full cost-effectiveness and affordability assessments that the gold standard technology appraisal performs. Before there could be a legal mandate for those guidelines, there would be some very significant methodological considerations for NICE. Without those, the risk is that mandating those guidelines would take resources away from other parts of needed care, such as mental health and community nursing—Cinderella services that have not been subject to those same processes.

We should also recognise that, vital though NICE is, the bigger contribution to the diffusion of best practice will probably be made in other ways. Certainly, reporting could help. Although one amendment makes the perfectly reasonable proposition of an annual report from integrated care boards on their adoption and uptake, that still feels a slightly 20th-century solution. If you go to Oxford University’s superb www.openprescribing.net, you can see your own GP practice and your own CCG’s prescribing patterns against the national norm, including, as the noble Baroness, Lady Finlay, said, for the DOACs, the anticoagulating medicines. Those technologies are already available, and the role that clinical pharmacists are now playing, including the thousands of new clinical pharmacists hired to work alongside GPs to improve their prescribing habits, is also likely to have an important influence.

Finally, there is this question of whether, just occasionally, conflicts of interest might arise on the part of prescribers or clinicians over the medicines or devices being used. The noble Baroness, Lady Cumberlege, has drawn attention to this in her important work, and that is perhaps something the House might return to at a later date.

[Lord Lansley (Con)]

My Lords, I want to intervene at not too much length. I welcome these amendments and am grateful to my noble friend Lady McIntosh of Pickering for bringing hers forward. It enables us to touch on a subject which those of us involved in the Medicines and Medical Devices Act will recognise. This is a short version of the debates we had then, but it gives us an opportunity to update a little on those and me an opportunity to ask my noble friend on the Front Bench a few questions arising from that. We are all grateful to the noble Lord, Lord Stevens of Birmingham, who clarified some of the terminology, which saves us going wrong. But I want to do a bit of clarification about some of the amendments as well.

The timing of this is terrific. We are discussing this today and NICE published the outcome of its methods review yesterday, so we can respond immediately. My starting point is to applaud NICE for having taken up and accepted the proposition that there should be a modifier in relation to its appraisals and assessments on severe diseases. We can argue about the precise detail, but it has taken that up.

Secondly, randomised control trials are terribly important but they are not the whole story. NICE has rightly accepted it should look at more real-world evidence and that, too, we can welcome, but it leads me directly to a question. Part of that real-world evidence, and one of the reasons it is not going directly to NICE, though NICE can use it, is the innovative medicines fund. NHS England published its proposal for the innovative medicines fund in July and said that it would consult on it, but it has not done so yet. My first question to my noble friend is therefore: when will NICE and NHS England consult on the innovative medicines fund?

The third point on NICE’s methods review is that it will take account of the wider impacts of the treatments it appraises. That is terribly important, especially given the present opportunities for personalised medicines and gene-based treatments, when one looks at how these can impact substantially on people’s lives from a relatively early stage and the contributions they can make to society and the economy. That is all good news.

The press release from NICE, however, did not draw specific attention to where it had proceeded in a way that its stakeholders did not support. It has maintained a reference-case discount rate of 3.5%, although NICE itself admitted that there was evidence that a lower discount rate would give significant benefits. It said that there would be wider implications for policy and fiscal complexities and interdependencies if it were to do this, which I think means “The Treasury said no”. We need to think very hard about whether a discount rate as high as 3.5% is appropriate for NICE’s application of its appraisals. I ask my noble friend, though he will not be able to give me the answer to this: who is telling NICE that it cannot adopt what it regards as the evidence-based discount rate for the appraisals it undertakes?

[Lord Hunt of Kings Heath (Lab)]

My Lords, on that basis, I have seen it said elsewhere that NICE has referred to its “national stakeholders.” I can only assume that they are Her Majesty’s Government.

[Lord Lansley (Con)]

Given NICE’s remit, it might be the Welsh Government as well, but the noble Lord may well be correct. We are all surmising, but I think we are probably not too far off the mark. It gave us an opportunity to respond to that.

So far as the amendments are concerned, the proposition that approved treatments should be adopted by the NHS is a proper one. What, of course, has not been brought into the debate is that the world has moved on, even in recent years. NHS England has taken what I think is an appropriately substantial interest in the approval of treatments, the uptake of treatments and their adoption by the NHS. When it started out, people said, “Oh dear, NICE is going to approve a treatment and then NHS England is going to tell people not to use it because it is going to cost them a lot of money.” In fact, we all agreed in the debates on the Medicines and Medical Devices Bill that there was everything to be said for NHS England, NICE and the pharmaceutical industry working together early, proactively, for the planned introduction of new medicines, including taking account of their cost. That is an NHS England role, not a NICE role. NICE does gold standard appraisals, but it does not take responsibility for the fiscal consequences of those appraisals, so all these things need to be put together. The pricing decision should not be something that comes out at the end.

One of the things I have been going on about for a decade or more—actually, 15 years—is that we should not end up in a position where there is an effective medicine that is properly approved by the MHRA and authorised for use; clinicians can use it and they know it is the right thing for their patient; but, because of the absence of an appropriate pricing decision, the answer to the patient is “no”. We should not arrive at that position. With NHS England and NICE working together with the pharmaceutical industry, we stand a better chance of the answer not being “no” in those circumstances as long as the resources are, indeed, available.

I do not think, on the face of it, that we should be legislating to change the medicines mandate from where it is now. My noble friend Lady McIntosh, in introducing her Amendment 54, referred to devices. The amendment does not refer to devices, but it should refer to devices. My further question to my noble friend the Minister is: when are we going to get a proper funding mandate on devices, which I think I was promised during our deliberations on the Medicines and Medical Devices Bill but we have not yet formally had it? Some good work has been done on some devices each year, but I am hoping that we will get a proper funding mandate on devices.

On formularies, my noble friend did not actually refer to the British National Formulary. Of course, NICE has had responsibility for the BNF for about seven or eight years, and even if it is not a legislative method, there is everything to be said for the NHS and clinicians looking to the BNF and NICE’s role in the BNF.

My noble friend and the noble Baroness, Lady Finlay of Llandaff, were quite right about the adoption of NICE guidance and standards on the use of them in clinical circumstances. However, via the regulator—the CQC—we already have a process by which the CQC looks at quality standards produced by NICE and incorporates what NICE itself isolates as the essential aspects of the standards that, in order to provide safe and effective care, must be reflected in the practice of a health provider.

My question to the noble Baroness, Lady Finlay of Llandaff, is: if she thinks that is not sufficient, how much further should the CQC actually go in adopting quality standards? At the moment, it has compromised and said, “We will take the essential steps, because those are a few, generally about five, specific things that we can look at to see whether they are being done, in which case, okay; or are they not being done, in which case it clearly needs improvement, or may not be meeting the standard.”

[Baroness Finlay of Llandaff (CB)]

The noble Lord asked me a question to which I feel obliged to try to respond, but I really want to answer the question with a question: does the CQC have enough powers to benchmark as it would want to do, and to publish those benchmarks? I hear the concerns of my noble friend Lord Stevens in relation to fear of litigation and how that is an objection to the amendments, but I am also quite worried that that is potentially a way of avoiding adopting the guidelines themselves, thereby inhibiting a change in practice and a move to best practice.

While there are sources of information that those who are very health-literate, IT-literate, and so on, can access to establish their own benchmarks about what is happening, many people, particularly those in the most deprived areas of the UK, do not have any knowledge of even where to begin looking for these things. That was the motivation behind the amendment: to try to make sure that in the poorest and most deprived areas, people would still be able to access this. That would drive up standards gently but would not create a mandated requirement that a NICE guideline is adopted, for the reasons I outlined previously.

[Lord Lansley (Con)]

I can see that my noble friend is eager to come in but I will conclude by answering the noble Baroness. I am not an expert, but I think the CQC has the powers—since it presently does it—to take account of the NICE quality standards and to incorporate specific indicators from those quality standards as part of its regulatory review. If the CQC was to attempt to introduce large-scale application of the guidance as a question in a regulatory review, I do not think the issue would be whether it had the power to do it, but whether it would make the headline conclusions it reaches in relation to healthcare providers increasingly difficult to interpret. At the moment, they are relatively straightforward to interpret. There is a small number of specific indicators in relation to services provided and they are either doing them or they are not. With guidance, it becomes much more complicated and many more value judgments have to be applied about the circumstances in which they are or are not complying. So, there is a real difficulty in going far beyond where we are now.

I will listen with great care when my noble friend the Minister responds to the questions I have asked.

[Lord Mackay of Clashfern (Con)]

My Lords, I support these amendments, subject to the economic difficulties. As I listened to the local Baroness, Lady Brinton, I wondered whether the amendments might be strengthened by some reference to the timescale in which they must be implemented. That might have some beneficial effect for many people who are waiting.

--- Later in debate ---

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Lord has said that the Bill came because this is what the NHS wanted. But we must be clear who in the NHS wanted it, and it is obvious that it was the senior chief executives at the local level and NHS England. No wonder primary care has been completely squeezed out of it. Listening to this debate, it seems to me that the proposals from NHS England never had any scrutiny. Ministers just accepted this and, because NHS England does not engage externally, there has not been the testing that you would normally get, and we are having to do it now. Frankly, the wheels are falling off. It is tempting to invite the noble Lord, Lord Lansley, to come in, because clearly CCGs were all about putting primary care in the driving seat. This seems to be removing them altogether and it is worrying.

[Lord Lansley (Con)]

My Lords, in response to that, may I say that when I was shadow Secretary of State for several years, GPs consistently told me that if only they were given the responsibility, they could do it so much better than primary care trusts? So we gave them the responsibility in ways that were very like the locality commissioning that was the endpoint of the GP fundholding of the noble and learned Lord, Lord Clarke of Nottingham. To be fair to them, there was less money, but no sooner did they take this responsibility than NHS England said, “Hang on a minute, you’re not doing what we’ve told you to do.” It took about 18 months, perhaps slightly less, before NHS England effectively said, “You have no further autonomy. You’re going to be in the sustainability and transformation plans,” which are the forerunners of ICS. I do not think that the clinical commissioning groups ever got the chance to do what they were asked to.

We have now reached the point where, as the noble Lord, Lord Warner, rightly says, they are being written out of the script, but they are not complaining, which is very interesting. They are not complaining because they do not want to be responsible for the budgets; they want to be responsible for the patients. They always said that they wanted to decide how locality commissioning should be done and the good ones have put tremendous things in place in terms of population health management, patient pathways and commissioning linked to those patient pathways. That is why, if we can do something with this Bill, it is to retain all that locality commissioning with GP input. But be prepared for the ICS, the big battalions, to go away and fight with the barons in the big hospitals.

[Baroness Thornton (Lab)]

I wish you good luck.

Health and Care Bill

Lord Lansley Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[Lord Kamall (Con)]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Lansley (Con)]

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

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

[Lord Kamall (Con)]

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

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

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