Health and Social Care Act
Lord Whitty Excerpts(11 years, 2 months ago)
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Earl Howe
My Lords, the department consulted on its proposals for these regulations between August and October last year on the basis of the commitments that had previously been given. All sectors had an opportunity to feed in their comments. Our proposals for the regulations did not give rise to any anxieties at that time.
Lord Whitty
My Lords, the Minister should have been made aware of the concern I expressed the other night in relation to the reference to Monitor in the Enterprise and Regulatory Reform Bill and to its supervision by the proposed Competition and Markets Authority which seems to some of us to introduce by the back door a situation where the CMA would override Monitor, making, in effect, competition trump integration and co-operation. Will he now advise the noble Viscount, Lord Younger, to delete the reference to Monitor in that Bill?
Earl Howe
My Lords, I took the opportunity to read the noble Lord’s comments a few days ago, and I am grateful to him for them. He will be receiving a communication in a few days’ time to clarify this issue. I thank him for raising it. The short answer to his question is that it is not our intention for competition to trump integration.
Care Quality Commission (Healthwatch England Committee) Regulations 2012
Lord Whitty Excerpts(11 years, 6 months ago)
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Baroness Masham of Ilton
My Lords, the Explanatory Memorandum to these regulations states:
“The instrument also places a requirement on the chair to ensure that arrangements for the selection and appointment of persons take into account the principles of openness and transparency”.
The votes this evening illustrate that people want openness and transparency, and I commend this. I would like an assurance from the noble Earl, Lord Howe, that the members of Healthwatch England and the local Healthwatches will be treated well. As volunteers, LINks members have not been given enough support. It is disappointing that Healthwatch England will not be independent. It must not become a puppet of the CQC, which has had problems, and the local authorities that host it.
There is an immense amount to do to keep patients safe in the health service—those in care homes and those with mental problems. One hopes that Healthwatch England will support local Healthwatches. When there is so much fragmentation and so much to do, will the CQC and Healthwatch manage to cope? I hope there will be spot checks, otherwise inspections do not mean very much, as has been shown in the awful problem of the care home near Bristol. I hope that the Minister, who I think believes in independence in his heart, can give us some assurances tonight.
Lord Whitty
My Lords, I do not want to repeat the arguments that have been made. I was going to repeat the arguments that I made about the history of consumer representation in other sectors, but time is against us. The conclusion from that would be that independence and the perception of independence are vital for all the reasons that my colleagues have spelt out today. The Act is there, and the regulations will be there after tonight, but the Minister at least ought to be prepared to say that he will review the situation after, say, two years. If he were prepared to say that tonight, I would give Anna Bradley, who I have great respect for, and the other members the chance to prove that this situation works, but it might also show up some strains in it. If the Minister could say that, I would walk away tonight a happier man.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the noble Lord, Lord Collins, has posed a number of questions about Healthwatch England and how it will work within the Care Quality Commission, and I welcome this debate. In view of the time constraint, I am not sure that I am going to be able to cover all the points, particularly those relating to local Healthwatch, but I will do my best.
First, I would like to take a step back to the White Paper Equity and Excellence: Liberating the NHS where our first plans for Healthwatch were set out. The Health and Social Care Act 2012 was passed by Parliament in March this year and enacted the proposals for Healthwatch to be the new consumer champion for people in health and social care. As a result, locally and nationally, Healthwatch will bring about better national leadership on public engagement and better communication for patients, service users, members of the public and communities to enable their concerns to be heard and acted on.
In the debate on the Bill in the Lords, the Government made it clear that Healthwatch England has an important role to play for patients and the public to present their views on health and social care at the national level to inform service improvements. Accordingly, the 2012 Act set up Healthwatch England to be the national body that would present the collective voice of the people who use health and social care services so as to influence national policy, advice and guidance. The Act sets up Healthwatch England to have relationships with other national bodies, such as the NHS Commissioning Board, Monitor and the Care Quality Commission itself, and with local authorities and the Secretary of State. Healthwatch England has the power to advise these bodies and the Secretary of State for Health, which could include making recommendations, and the recipients of such advice are under a statutory duty to respond. This is an important power for Healthwatch England to drive the consideration of issues, get a response and make the correspondence public, which I believe is a very tangible way of delivering openness and transparency in how these bodies respond to the issues that Healthwatch England raises. That could be a matter relating to the actions of the CQC itself.
I believe that these arrangements will engender trust. They will also embed the patient and public voice and the experiences of patients and the public at the heart of services. Healthwatch England is able to build other national relationships, such as with Public Health England. In addition, Healthwatch England will provide the leadership and support to a network of local healthwatch organisations which, in turn, will feed back the information from local people and communities to inform the national picture of what needs to be heard, and acted upon.
Since the Act was passed, the Healthwatch England committee was launched on 1 October at a stakeholder event hosted by the first chair of Healthwatch England, Anna Bradley. The chair has appointed to the committee 10 members so far who, collectively, bring the range of expertise and experience required for Healthwatch England to operate strategically at the national level. Those members were shortlisted and interviewed by a selection panel through an open and transparent process. Independent members of the panel included Joe Irvin, chief executive of the National Association for Voluntary and Community Action, and the criteria were drawn up in consultation with external stakeholders.
I shall name the 10 members for the benefit of noble Lords. They are: John Carvel, who was social affairs editor of the Guardian for nine years and a Guardian staff writer for nearly 40 years; Alun Davies, who has worked as a policy and planning manager in an adult social services department in a unitary council in the south-west and has been actively involved in disabled people’s politics; Michael Hughes, an independent policy and research adviser who was the director of studies for six years at the Audit Commission overseeing national reports on a range of topics including adult and children’s social care; Christine Lenehan, who is director of the Council for Disabled Children and has worked with disabled children and their families for over 30 years; Jane Mordue, who is deputy chair of Citizens Advice; Dave Shields, who was a health and well-being strategy manager for Southampton City Council, developing the city’s health and well-being partnership; Patrick Vernon, who was the chief executive of the Afiya Trust, one of the leading race equality health charities in the country and previously worked as regional director for MIND; Christine Vigars, who is chair of Kensington and Chelsea LINk and a trustee and former chair of Age UK Kensington and Chelsea—she has taught social work and worked in community care development in the voluntary sector; David Rogers OBE, who is a councillor for East Sussex County Council and chairs the Local Government Association’s community well-being board; and Dag Saunders, who is chair of Telford and Wrekin LINk and is one of two representatives for LINks on the Healthwatch programme board at the Department of Health. I hope the House will agree that this membership will give Healthwatch England not only strong and independent leadership but also the right skills and knowledge in relation to the commissioning and delivery of health and social care services, as well as on public engagement, consumer advocacy, equality and diversity, and specialisms such as children and young people.
The noble Lord, Lord Collins, has questioned the extent to which Healthwatch England will be able to act independently. I suggest to him that it will be able to do this in a very real sense. Healthwatch England will set its own strategic priorities, separate from the CQC; it will have its own operational and editorial voice, again separate from the CQC; and it will develop its own business plan and take responsibility for managing its own budget.
Under the leadership of its new chair, Healthwatch England has already made great progress in putting arrangements in place to ensure that it will function independently of the Care Quality Commission, while benefiting from its position as a statutory committee of the commission, without compromising good governance and lines of accountability. In fact, the benefit of this structure runs both ways. It will immensely strengthen the link between the views of patients and the public and regulation. The advice that Healthwatch England provides to the Care Quality Commission will enable the commission to address failings in the provision of health and social care services. It will also enable the commission to address any local risk management systems and, at the same time, Healthwatch England will have the commission’s offer of valuable expertise in data management, the gathering and use of intelligence, analysis, and an evidence base of information to pool and share knowledge. The CQC has publicly committed in its consultation document on its strategy for 2013-2016 to make the most of the opportunity Healthwatch offers and to support its development to make sure people’s views, experiences and concerns about their local health and social care services are heard. The CQC has made it clear that people’s views, experiences and concerns will more systematically inform its work.
Working as a committee within the Care Quality Commission makes Healthwatch England very well placed to connect people’s concerns about safety and quality with the work of the commission. This symbiotic and symbolic relationship is unique and will go a long way to embedding what I know noble Lords want to see, which are the voices of the patient and the public at the heart of care.
I was asked what will happen if Healthwatch England goes off the rails in some way or goes native. The Secretary of State has a duty to keep the performance of the health service functions under review. That requirement involves keeping the effectiveness of the national bodies under review; these bodies are listed in the Act. The list includes the Care Quality Commission, and Healthwatch England as its committee. That reassurance should go a long way to make sure that the functions that these bodies are meant to perform are ones on which they will be held to account.
Health and Social Care Bill
Lord Whitty Excerpts(12 years, 2 months ago)
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Baroness Cumberlege
My Lords, I have several amendments in this group and the next one. There are synergies between the two groups, so I shall speak briefly introducing both groups and go on to those in this group.
I have tried hard throughout our debates to ensure that we have a more robust accountability framework. As I see it, the framework is in three parts. First, there is the local authority. Secondly, there is HealthWatch England. Thirdly, there is the local community. I will not go into the independence of HealthWatch England, because I debated it very fully in Committee, but I understand the passion that has been expressed on that issue. For me, those three elements balance each other, and it is important that they do, because that will improve transparency.
To give an example, if HealthWatch England makes recommendations to local authorities on how they commission local healthwatch, local healthwatch and the community can hold the local authority to account for how it commissions. That gives it a yardstick by a third party, HealthWatch England, against which to measure the local authority commissioning arrangements. The policy document produced by the Government on Friday, Local Healthwatch—The Policy Explained, states that the Government are considering how the constitution and governance of local healthwatch needs to ensure that it operates for the benefit of and is accountable principally to its local community.
The third element is local people. They are critical to the accountability framework. As the noble Baroness, Lady Masham, said, in many eyes, they are the most important.
The government amendments, including those laid on Friday, go some way to addressing that, but they also introduce fresh concerns, which I shall refer to later. The loss of statutory structure is a great threat to independence. The value for money and rationale still have to be adequately explained, but I am sure that my noble friends on the Front Bench will do that shortly.
My noble friend Lady Jolly and I tabled Amendment 224, which improves accountability nationally by linking the perspectives of HealthWatch England more closely to the grassroots by electing the members of local healthwatch to the HealthWatch England statutory committee. The noble Lord, Lord Harris, gave that a warmish welcome, although I say to him that that is not a sub-committee, it is a committee. It is not subservient to a committee, it is a committee.
The Government have sought broader opinion with their public consultation on that and other topics which closed on Friday. That elected membership would serve two functions: first, as a counterweight to the influence of the Care Quality Commission, making HealthWatch England more independent; and, secondly, as an agent for the accountability of HealthWatch England, keeping it in touch with the patient and user reality. If local healthwatch does not think that HealthWatch England is really speaking out for people, it can say so through its elected representatives. They would be elected against a skill specification to ensure that they were the right people to fulfil that important role. Without that, HealthWatch England is a free-floating organisation with no local connection, a mere national harvester of local data. I hope that the Minister can reassure me again that that accountability gap will be dealt with.
Government Amendment 226 is very much welcomed. I strongly support it, because it responds to my amendment in Committee. It provides for the majority of the members of HealthWatch England to be made up of non-CQC members, making it independent of the CQC, which therefore cannot dominate HealthWatch England. My Amendment 226A stitches the accountability framework together transparently, by providing for local healthwatch to have regard to the standards set by HealthWatch England. I hope that my noble friend can give me some assurances as to how that last element can be covered.
The introduction of the HealthWatch trademark under government Amendment 235C is a very interesting device and may well help. Amendment 228 was also tabled by my noble friend Lady Jolly and me. It enhances independence and transparency nationally by providing for the Secretary of State to issue conflicts guidance to which both the CQC and HealthWatch England must have regard. I hope that the Minister finds that sensible. Amendment 229 is another government amendment which I support. It includes a risk management strategy, so that what may have gone wrong in one place may stimulate vigilance in another. I strongly support that.
I am sure that my noble friend will wish to speak to her amendments, but I have introduced mine and hope that some of them find some favour with those on the Front Bench.
Lord Whitty
My Lords, I want to add a couple of brief points to the already powerful case made by the noble Lord, Lord Patel, and my noble friend Lord Harris. I do so from some experience of the consumer interest in other markets. First, I resort to what the clause says is the purpose of the HealthWatch England committee. It states that it is,
“to provide the commission or other persons with advice, information or other assistance”—
not to challenge, not to represent the user interest, not to deal with issues of general complaint but to provide assistance to the body of which it is a committee. That is not a sufficiently powerful role to fulfil the requirements for independence.
This has been tried in other sectors. Until 2006, when I brought legislation through this House, there was a panel to represent consumers within Ofwat. Since that has been removed, and in contrast to the first 20 years of the privatised water industry, the Consumer Council for Water has represented the consumer interest effectively in terms of price review and influence on the individual water companies, region by region. That has been an improvement.
There are two other examples where regulations have required panels within existing regulators. One is in communications, where Ofcom had a consumer panel. Frankly, that has withered on the vine because Ofcom has not supported it or given it adequate resources. The other is in financial services, where the Financial Services Consumer Panel has done some sterling work, but no one could claim that the interests of consumers has been fully protected through the past five years of financial service provision. Noble Lords may remember that when our colleague, the noble Lord, Lord Lipsey, was briefly chair of that panel and attempted to extend the interests of consumers more independently from the regulator, he found it necessary to resign. That is not a good model for independence either. Although that panel does good work, it has to follow the rhythm and priorities of the regulator, not the priorities, concerns and interests of consumers. If you are part of an organisation, a committee or sub-committee of an organisation, that inevitably follows.
The other point that I wish to raise concerns powers, my views on which are set out in subsections (7) to (12) of the proposed new clause. Unless the consumer organisation has separate powers from those of the regulator to require information and advice, then, again, it cannot be truly independent. The powers are very similar to those of the other independent, statutorily based consumer organisations, and it will require information from the regulators, the commissioners and the providers within the complex new structure of the health service that we are setting up here.
On both those counts, there is no experience elsewhere of consumers’ interests having been effectively represented by a committee, a panel or a sub-committee within one of the three overlapping regulators, all of which impact on the users of the health service under the Bill.
Unless the Government rethink this, they will be doing a great disservice to all the hundreds and thousands of people out there who depend on care services and on the National Health Service. The reality is that all the Minister needs to do is to tell us today that he is going to reject the idea of a committee and genuinely come forward with a proposition that gives independence to consumer representation within the new structure. If we get anything short of that, I think we will have let down the users of the National Health Service.
Health and Social Care Bill
Lord Whitty Excerpts(12 years, 5 months ago)
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Baroness Cumberlege
My Lords, perhaps the noble Lord, Lord Whitty, ought to speak next, because I suspect that his amendments relate to what the noble Lord, Lord Low, was saying, and it may be that the synergy would be better that way.
Lord Whitty
My Lords, I thank the noble Baroness very much. In this case, logic trumps chivalry.
I have four amendments in this group, all of which relate to the independence of the local healthwatch—some of them in some slightly indirect ways. We spent some time at an earlier stage, and again today, talking about the independence of Healthwatch England from the regulator. I did not intervene today, but it is evident that the Government are not persuaded that we need to unravel them. I am afraid we are going to have to return to that at a later stage, because I am certainly not convinced by the Government’s arguments. However, I think that even the Government must recognise that a body representing patients, users and consumers of health and social care services has to be independent from the provider.
The problem with some of these clauses is that the local healthwatch organisation, as the noble Lord, Lord Low, has said, is not clearly independent from the local authority in all respects. We are not yet clear how independent of the local authority it will be in its membership and how that membership is appointed. Schedule 15, which comes in with Clause 179, is pretty general as to who the members would be. As the noble Lord, Lord Low, said, we have to await regulations before we see that. Meanwhile, there are other reasons why one is a bit suspicious that the local healthwatch organisations would come too much under the sway of the local authority, which is going to be the provider of many of the services to which they relate.
There may be other ways of doing this, but these amendments are attempting to make clear the independence of the local healthwatch body by establishing that it sets its own priorities and manner of operating, subject only to any guidance given by Healthwatch England; that is, it would not be subject to any guidance, restriction or direction from the local authority. There are then a number of clauses which are pretty complicated in themselves, but appear to treat the local healthwatch as if it were an excrescence of the local authority.
For example, I want to delete the bulk, or the purport, of Clause 181, which appears to treat local healthwatch organisations as if they came through the local authority rather than being independent bodies. Some of the requirements may well apply to healthwatch locally, but they should not be implemented and enforced via the local authority in any sense. The noble Lord, Lord Low, has already referred to some of the problems about freedom of information, but some of the other provisions could well raise difficulties if the local authority was the one ensuring that the local healthwatch met those provisions.
Independence of consumer organisations across the economy is important, and I will return to that on Report. Local bodies, in particular, need to be independent. They are the bodies to which individual patients and users will relate, and if they believe that the local healthwatch is in any way associated with, dominated by, or accountable to the actual providers of the bodies that provide the services, its credibility will be diminished. I would therefore hope that the Government took note of these concerns and made it more explicit in the final version of this Bill that local healthwatch organisations were independent of the local authority and made their own decisions, with their own priorities and manner of operation. I do not think that we can leave all that to regulation; it has to be more explicit in the Bill. This is one way of doing it, although the Government may well come up with better ways of doing it, but I think that we need to ensure that we reach that stage before we finish with this Bill.
Baroness Cumberlege
My Lords, I have a number of amendments in this grouping concerning local healthwatch. As has already been said this afternoon, local healthwatch is the source of intelligence from the people who are actually using the services. This intelligence is gathered through their enter and view monitoring visits to both health and social care services—we should not forget that it is social care as well—and through their local involvement work.
However, neither commissioners nor overview and scrutiny committees have the same binding arrangements to enter and view health and social care facilities. Local healthwatch has the opportunity to interview people at the time they are actually using the service. The local healthwatch has the independent messenger status with local people that neither commissioners nor overview and scrutiny committees have. Local healthwatch has the right to enter and view, to talk and listen, to the most vulnerable of all people, those with dementia or other mental illness, those lying on trolleys in A&E, or on mental health in-patient wards. “No decision about me without me” can be tried and tested when most fresh in the minds of patients and users. It is only here that the reality of the services that results from the theory of commissioning is to be found. To fail to take due account of this perspective in commissioning services is commissioning wearing a blindfold. The purpose of Amendment 318E is to ensure that commissioning is evidence based.
New Sections 14Z and 14Z11(2) require clinical commissioning groups to involve and consult on their commissioning plans. We know that this is a somewhat bureaucratic exercise, and it is often simply for the cognoscenti. Although these clauses are to be welcomed, they do not go far enough—hence the insertion of my new clause. Frail elderly patients lying in hospital wards who are not being fed will not be responding to consultations any more than will patients who have been sectioned under the Mental Health Act. The local healthwatch must talk to those patients and its findings must be an indispensable component of the evidence on which commissioning is based.
New subsection (3A), inserted by Clause 180(6), also requires commissioners and others to have regard to reports and recommendations from local healthwatch. This replicates the current arrangements for reports and recommendations from LINks, which has failed to bring the patient experience into the heart of commissioning. Compared to the status given to the views of health and well-being boards on commissioning plans—the strategic beginnings of commissioning—this is weak. What is needed is equal attention to the evidence on the outcomes of that commissioning, which local healthwatch is uniquely well placed to provide.
My new clause requires local healthwatch to hold the clinical commissioning group to account for incorporating the evidence that the local healthwatch has produced at the very start of the commissioning period. It should then heavily influence the commissioning plan for that period in taking the reality and applying it to commissioning theory. Binding the patient experience into commissioning is a much more specific requirement than merely “having regard to” local healthwatch reports and recommendations. The conjoint benefit of this new clause is that it increases the accountability of local healthwatch for producing robust evidence of the patients’ experience. Providers must also satisfy the local healthwatch if they are to secure further contracts.
Health and Social Care Bill
Lord Whitty Excerpts(12 years, 5 months ago)
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Lord Whitty
My Lords, I apologise for not being here at the beginning of the consideration of this group because for once the Committee is making faster progress than I thought, but I have tabled two amendments that relate back to the issue of anti-competitive behaviour, so I will be following on from my remarks about the first of the amendments today. I seek greater clarity from the Minister. Given that Monitor has responsibility for preventing anti-competitive behaviour—in other words, not just the encouragement of competition but also the policing of it—what happens when someone complains to Monitor? In effect, Monitor has been given the same powers as the OFT and other economic regulators in other sectors and, as my noble friend Lord Beecham has just said, is subject to some oversight by the Competition Commission, which has duties in this respect.
Let me give two examples of what in other sectors would be seen as anti-competitive behaviour. One is where two providers in an area get together to divvy up what they know the commissioning body wants and provide a package that is acceptable to the commissioning group. A third provider would like to get in on the action. It is probably qualified, so that is not a hurdle. If that provider then complains to Monitor, is Monitor able to say, “This may appear to be a bit anti-competitive, but actually it is in the interests of patients”? I assume, from all the Minister has said and from what is set out in the document about the role of Monitor, that it means it can say that. But is that the end of the story? Can there be an appeal against Monitor to the courts or, if it is systematic, to the Competition Commission review role?
There is also the opposite scenario: competition laws relate to monopsony and oligopsony as well as to monopoly and oligopoly, so if a number of commissioning groups get together and decide that they will buy collectively from particular providing groups but not from others, is that also grounds for appeal to Monitor? If Monitor nevertheless decides that that is in the interests of patients, is there a further recourse? I was worried earlier today that there might be further recourse and that, despite all the assurances that have been given, Monitor is not actually the final regulator on what is in the patients’ interests, because it is supposed to act in accordance with or reflect the general rules, including EU rules, on competition and procurement.
This situation is going to arise because, with the Government’s encouragement, there will be more providers than those which get commissioned. A failed or disappointed provider must know how the system is supposed to work so that Monitor can look at it and be judged on it. With other economic regulators there is a form of appeal in this respect, to the Competition Commission. It is not used very frequently, but when we are trying to bed in a new system it may well be used more frequently by disappointed and failed competitors. If that is not to happen, it has to be clear in this Bill—and if not in this Bill then by ministerial decree and in regulations—that once Monitor decides something is in the interest of patients that is the end of the story. Otherwise, I cannot see the system working without constant appeals and second guessing.
Lord Walton of Detchant
My Lords, I shall be brief in speaking to these amendments. I wholly agree with the principle outlined by the noble Lord, Lord Warner. There are many circumstances in which competition, properly controlled, will benefit the National Health Service and will benefit our community. But, like the noble Baroness, Lady Williams, I too, having worked in the United States, would be deeply concerned if competition were allowed to run riot. Years ago, I saw the affect of this. For instance, in the Massachusetts General Hospital, where I worked many years ago, the president of the hospital told me that they were required to debate and negotiate with no fewer than 47 different insurance companies in order to obtain coverage for the patients whom they treated.
Yet in the United States you still find, in certain communities, perfectly acceptable patterns of community care which are in many ways excellent, not least the Kaiser Permanente plan in California. I also visited an excellent clinic and associated hospital providing a substantial range of primary, secondary and tertiary care to a very wide community in Marshfield, Wisconsin. The Marshfield clinic serves a very large community in that state. All the people in the community pay an annual subscription in return for which they get a full range of primary, secondary and tertiary care of a very high standard. There are islands of excellence.
So far as competition in this country is concerned, I have always believed that the cap imposed upon foundation trusts in relation to private patients was unfair. It was imposed at a particular moment in time and based upon income derived by those individual trusts in a preceding period, and was grossly uneven. I have always favoured a partnership between the public and private sectors. In such hospitals and foundation trusts I believe there is a great advantage to allowing them to have more income from private patient beds: it not only generates income for the National Health Service, it also persuades many consultants to become geographically whole-time, looking after their public and private patients in the same hospital and not having to spend time, as many have in the past, travelling to private hospitals.
I believe in competition and in the public-private mix. But in pursuing that type of programme, it is absolutely crucial that Monitor has the authority to prevent any foundation trust from overstepping the mark and increasing its private provision to the extent that it will harm the services that it gives to NHS patients. I would love to have an assurance from the Minister that Monitor will be able to fulfil the function of controlling excesses which could damage the National Health Service if private provision went too far.
Health and Social Care Bill
Lord Whitty Excerpts(12 years, 5 months ago)
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Lord Rea
My Lords, I would like to make a very few remarks on competition versus co-operation from a clinical rather than a legal position, as I am baffled by the complex legality of the amendments on Monitor.
As the noble Earl knows, like many others I have always had concerns about the wisdom of introducing market competition into healthcare. Co-operation and collaboration between providers should always be the norm for the benefit of patients and, as the noble Baroness, Lady Meacher, has just said, it is much less costly. However, it is good to know that competition is now to be on quality and not on price. This removes, theoretically at least, the race to the bottom which has been shown to result in worse outcomes in a number of studies, particularly, as other noble Lords have pointed out, in the United States.
Recently there have been three studies in the UK on competition in healthcare, of which that by Zack Cooper and colleagues at the LSE, looking at hospital data covering 400,000 admissions from 2003 to 2008, is the largest and the best known. They claim to show that competition on quality can improve the outcome for patients with a myocardial infarction or coronary thrombosis. Although carefully conducted, and allowing for many variables, the paper has been criticised by statisticians for the elementary but common scientific mistake of equating correlation with causation.
The mortality rate certainly did fall in the hospitals deemed to have been involved in choice and competition. They were deemed to be such because they were close to other comparable hospitals, mostly in urban areas. The researchers were unable to measure competition as such, which of course is a weakness of the study. The mortality rates in these hospitals were compared to those in hospitals outside these areas with more scattered populations who were likely to have less choice and to use only one hospital. However, differences in the mortality rate could have been due to a number of clinical and diagnostic factors, unconnected to competition, which applied more to the urban than the provincial hospitals. For instance, the urban areas were more likely to contain teaching hospitals, which often lead on the introduction of new treatments.
Another report deemed to show that competition is beneficial was commissioned by the Royal College of Surgeons. It showed that outcomes for elective surgery at independent sector treatment centres were better than those for similar procedures carried out in National Health Service hospitals that also offered emergency care. This is not surprising, for several reasons. The patients at the ISTCs were younger and in better general health; they came from more affluent areas; and they were less likely to have co-morbidities. Therefore, the surgeons at the ISTCs had a more straightforward task and by concentrating on a few surgical procedures may have become more skilled in that limited area.
There is nothing to stop National Health Service hospitals setting up dedicated wards and teams to concentrate on routine operations, with doctors working in those sections being protected from being diverted to treat more urgent or seriously ill emergency cases. A number of National Health Service hospitals have done this quite successfully, providing treatments at a lower cost than those commissioned from the private sector. Two years ago ISTCs received some 11 per cent more remuneration than the National Health Service for doing the same work. Of course I am aware that the National Health Service sometimes needs the private sector to clear a backlog. However, this should be temporary, if only for economic reasons. As many other noble Lords said, competition is welcome and necessary within the National Health Service but should be between hospitals, clinicians and other providers vying to be judged the best. In most cases there is only a temporary need to use commercial, competitive providers. I hope that these general remarks have helped the debate.
Lord Whitty
My Lords, I will intervene only briefly because most of the points on competition were made very eloquently, in particular by the noble Lords, Lord Clement-Jones and Lord Owen. My amendments would rather more crudely delete references to anti-competitive behaviour. One thing I will draw to the Committee's attention is that the terminology maximises the chances of this going wrong. The earlier version of the Bill referred to “promoting competition”—in other words, encouraging more providers—which was a relatively benign intervention if one believes that that is the way to go. By referring to “preventing anti-competitive behaviour” we are turning Monitor from being an accreditor and promoter of more providers to being the policeman of the nascent market. That will put it in a very vulnerable position.
All competition and sector regulators that have this duty are inevitably faced with appeals, complaints and other interventions by unsuccessful providers or potential providers, which go through a quasi-legal process with the regulator. The Bill provides that if that is not acceptable, the issue may go to the competition authorities, which rely on the general principles of competition and also—as the noble Lord, Lord Owen, eloquently underlined—of procurement law. Therefore, in almost every case of commissioning the allocation of the contract will be opened to appeal on the grounds that it overrides competition. However, as noble Lords said, there are hundreds of thousands of situations where collaboration and integration, vertically and horizontally, and even mergers between providers, would be in the interests of patients. The Minister said that clearly in all cases the interests of patients were the most important issue. Indeed, the very useful document describing Monitor’s role states that the regulations would help ensure that competition is not applied inappropriately, and only ever in the interests of patients. Well, that is what we would all wish to see. I certainly would not wish to deny Monitor the ability to encourage competition, but if there is an appeal against a particular award by a particular commissioning body, Monitor and the higher courts have to be in a position of judging whether or not the award was in the interests of patients. That seems a severe restriction on the ability of Monitor to provide its general services because it will be engaged in all these cases of complaint and appeal.
There are things that would fit in with the Government’s overall philosophy— which in this area I do not happen to share—but that would not open the door to such a multitude of appeals and to the wider application, referred to by other noble Lords, of both general EU and UK competition and procurement law, which would tie large parts of the National Health Service up in knots.
Lord Ribeiro
My Lords, Amendment 278BA in my name will appear later this afternoon under Clause 71. In view of the discussion so far, however, I think it appropriate that I make my comments now.
This is a probing amendment on which I hope the Minister will be able to provide some clarification. The amendment seeks to address the maintenance of quality standards across all qualified providers, be they NHS, private or the voluntary sector, in three key areas. We have heard mention already today about “any qualified provider” and this is the area on I wish to spend some time. One of the current issues with private sector contracts is that when serious complications arise, requiring intensive care facilities, the patients invariably end up in the NHS. Continuation of care is essential in all areas but it is particularly important in the area of surgery. The experience of the independent sector treatment centres in the NHS, mentioned by the noble Lord, Lord Rea, and others, has not always been a happy one for the medical profession. If the noble Lord, Lord Warner, who has championed their introduction, was here he would have taken some comfort from the recent report that the noble Lord, Lord Rea, referred to.
When I was president of the Royal College of Surgeons I actually instituted a national audit to compare outcomes of care between the NHS treatment centres and the NHS. The Patient Outcomes in Surgery audit was launched in 2007 by the Royal College of Surgeons and the London School of Hygiene and Tropical Medicine. I said at the time:
“This Audit will provide solid evidence as to whether patient outcomes differ between the ISTCs and the NHS. It is imperative that patients receive a sustained, safe and quality service, which is consistent”—
and that is the point, consistent—
“across surgical providers”.
The outcome of the audit, published this October, analysed four operations: hip and knee replacements, hernia and varicose vein surgery across both provider types. It found that the outcomes from the ISTCs were equal to or generally better than the NHS where both elective and emergency patients were treated. Again, the noble Lord, Lord Rea, made the point that the NHS deals with emergency patients as well. The report highlighted the fact that the patients treated in these centres were younger, fitter, healthier and less likely to have co-morbidities than their NHS counterparts, making them a lower risk for complications.
Jan vanderMeulen, professor of clinical epidemiology at the London School of Hygiene and Tropical Medicine, points out:
“Independent sector treatment centres treat only non-emergency cases. The separation of elective surgical care from emergency services is likely to have a positive impact on the quality of care, irrespective of whether the elective surgery is carried out by a private company or the NHS”.
This is something that I believe passionately: the exercise of the ISTCs has demonstrated that if we separate functionally elective from emergency care, we will improve the quality of care for patients, irrespective of whether that is done in the private sector or within the NHS.
There is a downside, however, and this was pointed out by Professor Norman Williams, current president of the Royal College of Surgeons, when he warned,
“we need to guard against any drift that could destabilise hospitals. Sicker patients have needs that only a comprehensive hospital can provide”.
There is a danger that if you move a lot of care over to ISTCs and so on you may destabilise the acute services in the NHS.
Health and Social Care Bill
Lord Whitty Excerpts(12 years, 5 months ago)
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Lord Whitty
My Lords, I, too, tabled amendments in this group. They are aimed at providing HealthWatch with the independence and resources that it requires to genuinely represent the patients and users of health and social care services. Many noble Lords will understand that I am not a health service expert. However, when the White Paper proposing these changes came out, I still had some responsibility for consumer affairs generally as chair of Consumer Focus. Health service professionals do not like to regard their patients as consumers—I am quite happy to call them patients, users or clients—but we are moving the users of health services to a situation closer to that of consumers in other markets.
If we do not have separate consumer representation that reflects at both local and national level the concerns and interests of those consumers, we will not improve the service in the interests of users and patients. The noble Baroness, Lady Cumberlege, tabled amendments to strengthen the position of the regulator that go a considerable way towards making sure that there is some recognition of independence. However, the role of patient representation is entirely different from that of the regulator. Inevitably there will be conflict.
I turn to other sectors. When I was the Minister responsible, we took the Consumer Council for Water out of Ofwat because there was a conflict. We took out Passenger Focus from what became the Office of Rail Regulation because there was a conflict. We always kept Energywatch and then Consumer Focus separate from Ofgem. There was tension in all those areas, but that tension is more easily resolved if there is independence, ring-fenced funding and an ability to relate directly to the consumers of those sectors independently of the regulator. There is not a huge amount of difference in the health service, although obviously there are some esoteric aspects to it. The question of price and the exchange of money at the point of service does not arise in the same way, but questions about much of the rest of customer service absolutely do arise. Indeed, the main complaints about the health service are related to customer service and are almost equivalent to those made in many private and public sector markets.
I do not accept that a role within a regulator is sufficient to represent the interests of patients and users. Many of the propositions that are before noble Lords are worthy of the Government’s consideration. My own proposals are based very much on the construction of Consumer Focus, and in that sense they are not my own work but the work of the parliamentary counsel at the time. They are in no way superior to my noble friend Lord Harris’s jottings. If we were to look at them all together I am sure that those of us who are arguing for independence could come up with a clear alternative, but it would be much better if the Government themselves recognised the strength of argument in this area and came up with their own proposition between now and Report. They need to make it fit with the total pattern. The Government are the only people who can make a commitment to resources and to genuine independence. After the strength of argument that has come up in this debate, and with the views from LINks and from some of the patient organisations for particular conditions and diseases that the present proposals inadequately reflect, I hope that the Government will think again.
My last point is that, in addition to independence and to separate and clear resources free from the provider and the regulator, the Government need to look at powers, because a genuinely effective consumer, user and patient organisation that does not have the power to request from the providers, and in this case the commissioners, information on how they are conducting their affairs is always at a disadvantage. In other sectors there are clear powers for the consumer organisation. In this sector I am sure that those powers are also necessary for the whole range of bodies which the new configuration of the health service will have as a result of this Bill.
I hope that the Government think about this debate and come up with their own proposals. In the mean time I support the noble Lord, Lord Patel, and others who have spoken in the debate.
Health and Social Care Bill
Lord Whitty Excerpts(12 years, 6 months ago)
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Lord Whitty
My Lords, I intervene briefly in this debate to ask the noble Earl whether, in his reply, he could perhaps cross-refer to a later section in the Bill, which deals with the role of one of the entities to which my noble friend Lady Wheeler has just referred, namely HealthWatch England. In any procedure for complaints, whether about treatment or the ultimate effects of commissioning on patients and the quality of service, an independent body that represents the views of the users of the health and social care system is required. There is a whole group of relevant amendments, but it is the last group printed on this list so we will probably not reach it much before Christmas. Nevertheless, within that group is a strong line that HealthWatch England should be an independent body, which means independent not only of the providers but of the regulators. In any proper complaints system—although I do not suggest that this is the only channel for complaints—you need an independent consumer view. This has stood the test of time in several other sectors. It would be a major role for HealthWatch England if it could be built into the kind of clear procedure to which the noble Baroness, Lady Jolly, referred.
Earl Howe
My Lords, this has been a valuable debate on what is an important topic by any standards. It is vital that patients feel able to raise complaints where services are not good enough. It is equally important that there are appropriate systems for ensuring that complaints and safety incidents are effectively monitored and addressed, and that wider lessons are learnt.
Amendment 57A would require the Secretary of State to create a new procedure, whereby complaints about both health and social care providers could be brought before the board. Amendment 143A would go further by giving the board a more specific role in collecting and analysing information relating to complaints about both the provision of health services and commissioning decisions by the board or clinical commissioning groups, and making this information available to the public. The current NHS and adult social care arrangements for handling individual complaints were developed to make the process of complaining quicker and simpler, and to put the focus on meeting the needs of the complainant. It is important that all NHS organisations view and manage complaints in a positive manner and use the information obtained to improve service delivery.
Under the current regulations, a complaint about poor service provision may be made either to the service provider or to the commissioner of that service. It is important that people have that choice. Someone may be deterred from making a complaint to the service provider if they consider that it may impact on their future healthcare provision. We consider it right for these general principles on complaints handling to be carried forward into the new system architecture. In future, we envisage that complaints about service provision would be made to the service provider, or to either the local clinical commissioning group or the NHS Commissioning Board, depending on which had commissioned that service. They would also deal with complaints about how they have performed their own functions.
Of course, where it proves not possible to resolve a complaint locally, the complainant has the right to refer the case to an independent arbiter. In the case of an NHS complaint, this referral is to the Health Service Ombudsman. The system of handling complaints will therefore continue to operate largely as it does now. The arrangements for monitoring complaints will also be similar. The NHS standard contract already requires all providers to report complaints information to commissioners. This information is collected by the NHS Information Centre and would be available to the NHS Commissioning Board. This is then discussed as part of the clinical review meetings between commissioners and providers, who are required by regulations to implement learning from complaints and other incidents. It will be vital that the NHS Commissioning Board is able to identify any emerging trends from this information.
In reply to the noble Lord, Lord Whitty, the board will be assisted by both the local healthwatch and HealthWatch England, which will act as a conduit for the views of service users about their experiences of complaints handling. It will also be able to make recommendations to providers and commissioners about how services and procedures could be improved. There will be a duty on NHS organisations to have regard to the recommendations of the local healthwatch, which will also put pressure on providers and commissioners to improve.
Finally regarding these amendments, the noble Baroness, Lady Wheeler, makes the valid point that it is important that information about complaints is made available to the public. Patient and service-user generated information, which includes complaints as well as information collected from patients and staff through surveys, real-time feedback, ratings of services and patient reported outcome measures, are all vital in helping patients to make informed choices about their care.
Separate arrangements currently apply in reporting patient safety incidents that have or could have resulted in harm to a patient. These are reported in anonymous form through the National Reporting and Learning Service, operated by the National Patient Safety Agency. Safety has to be the key priority of all those working in the health service. We cannot allow it to be an add-on or an afterthought. Patients rightly expect that any service provided with NHS funding will be safe.
For this reason, we want to put safety at the heart of the NHS by transferring these functions from the NPSA to the NHS Commissioning Board. Clause 275 therefore makes provision to abolish the NPSA as part of our plans to reduce the number of arm’s-length bodies. Instead, new Section 13Q, which Amendment 143B seeks to remove, gives the NHS Commissioning Board responsibility for those functions currently carried out by the National Patient Safety Agency. This is in relation to collecting information about patient safety incidents, analysis of that information and sharing the resulting learning within the NHS and more widely.
Safety is, of course, another of the core domains of quality. We believe that the NHS Commissioning Board, as the body that will be legally responsible for ensuring continuous quality improvement in the NHS, will be best placed to ensure that this learning is translated into improved practice. Its unique perspective will allow it to ensure that appropriate levers are used to drive safety improvement across the system. Bringing safety right into the core of commissioning activity in this way is the most powerful way of driving a safety agenda through the NHS.
Lord Whitty
“(1A) The areas covered by clinical commissioning groups in respect of general primary care shall, as far as practicable, coincide with local authority boundaries.
(1B) The requirement under subsection (1A) may be modified where clinical commissioning groups provide specialist services.”
Lord Whitty
My Lords, I apologise to those I informed that I would not be here to move Amendment 59A—I am here and so I will.
Noble Lords will probably appreciate that I have severe misgivings about aspects of the Bill but the amendment attempts to build on parts of the Bill of which I largely approve. The devolution of commissioning is important, but the later provisions in the Bill which associate issues of public health and well-being more clearly with the role of the health and social care system are also important.
When we are talking about configuration in the sense of bureaucratic bodies, it is important to try to build into this a relationship between what are mainly local authority services and those services which will be commissioned by the new commissioning groups. The original form of the commissioning groups in terms of GP commissions has been altered somewhat but there will obviously be quite a number of them. We do not know how many of these commissioning groups are envisaged by the Government. This amendment attempts to say that there ought to be a relationship between commissioning groups and the local authority boundaries within which they operate. It is intended to be a relatively flexible operation, although it would be very sensible in many areas for there to be a total coincidence in coterminous boundaries between commissioning groups and local authorities. In others, there may well be more than one, but I still think some recognition of a relationship with the local authority services is important. It is important not only in the provision of social care and dealing with the developing conditions of individual patients and users, but for environmental health issues, on which I have later amendments. The public health service should ensure that the commissioning authorities recognise the importance of work in the public health area and the need to co-operate with the public health authorities.
It is actually quite difficult to get the National Health Service, at both local and policy level, to take into account in its operational work the need for a public health dimension. There have been some significant improvements in this relationship in recent years, but they need to go further. I am therefore suggesting that, in principle, we should ensure that there is a relationship between the commissioning groups, the public health authorities and public health and well-being committees, and the local authorities that provide social care and public and environmental health services. It is intended to be reasonably flexible. Clearly such coterminosity, if that is a word, would not apply to specialist commissioning groups and, as I have said, I am not suggesting that there should be only a single commissioning group within each local authority area; although there would be advantages in that, it would cut across a lot of what the Government are attempting to do. I think, however, that somewhere in this Bill—not necessarily in the precise terms of this amendment—there needs to be a very clear relationship written in between the public health boundaries and the commissioning boundaries as they are envisaged in the new configuration. I beg to move.
Lord Rea
My Lords, following the noble Baroness, Lady Finlay, I raised this issue briefly on the second day of Committee. I felt, however, that the Minister only gave a partial answer. CCGs must have an “area” as set out in their constitution, but there seems to be nothing in the Bill which defines the limit of this area or its basis other than that CCGs will cover the registered practice population of the GPs sitting on the CCG. This will result in very untidy boundaries which will interdigitate with a variable number of other CCGs.
However, proposed new subsection (1A) in Clause 10(3) says that a clinical commissioning group has responsibility for other people resident in its area but not registered with a GP—homeless people, rough sleepers, asylum seekers, et cetera. A geographical boundary for those people is therefore implied. Can the Minister say how this boundary is to be delineated? Will it coincide, as my noble friend has suggested, with the local authority, or with the former PCT—which in fact in 85 per cent of cases will be the same as the local authority boundary—or will it have some other basis? There is a strong case for—sorry about this word again—coterminosity with local authorities. They provide many of the services on which GPs depend. In fact, they are an integral part of primary care, such as social services and community health services, and public health, including maternal and child welfare services. They are especially important as, under the Bill, local authorities will all have their own director of public health. There are a number of services which were formerly provided by PCTs on a geographical basis: for example, ambulance and emergency services, genito-urinary medicine clinics, and drug and alcohol services. These are by no means all the services which CCGs will have to commission or co-operate with. What arrangements will be made for the area that these services will have to provide for?
Earl Howe
If the noble Lord will allow me, I will answer those questions in a moment. Amendment 101A would similarly duplicate existing provision by placing a duty on the NHS Commissioning Board to ensure that all CCG governing bodies meet the requirements for clinical and non-clinical representation. The board already has to do this; under proposed new Section 14C, the board can grant an application only if it is satisfied that the applicant CCG has made appropriate arrangements to ensure that the group will have a governing body which satisfies any requirements imposed by or under the Act. That would include regulations made under proposed new Section 14N providing for minimum levels of clinical and lay representation.
Amendments 170A, 175D, 175CA and 175CB seek to introduce alternative governance arrangements for CCGs. These amendments would remove the existing functions of the CCG governing body and, through the proposed new schedule, replace the governing body with both a board of directors and a board of governors. I was grateful to the noble Lord for explaining where this idea originated. However, the amendments do not propose functions for these boards to exercise. They concentrate almost solely on the form of CCG governance; they neglect the function. As to that form, there is much here which is already provided for in the Bill and in relation to a governing body. I should perhaps explain that our preferred approach is to set through regulations the key requirements in relation to the composition of the CCG governing body and the logistics of their qualification, appointment, tenure and so on. This will, most importantly, allow flexibility for the approach to evolve over time and in the light of experience.
Turning to Amendment 59A on the subject of the area covered by CCGs, in the light of our lengthy debate on this last week, a letter will shortly reach your Lordships to provide further information on the arrangements for geographic areas of CCGs. It includes some analysis of the key issues which I hope will be useful and reassuring. We accepted the Future Forum recommendation that the boundaries of CCGs should not normally cross those of local authorities. If a CCG wishes to be established on the basis of boundaries that will cross local authority boundaries, it will be expected to demonstrate to the NHS Commissioning Board a clear rationale in terms of benefits for patients; for example, to reflect local patient flows and to secure a better service for patients. The board will also be required to seek the views of emerging health and well-being boards. In addition, CCGs will have the flexibility to enter into lead or joint commissioning arrangements with other CCGs; for example, for commissioning of lower volume or more specialist services. I hope that this reassurance will satisfy the noble Lord’s concerns.
Finally, Amendment 92ZZA seeks to mandate the Secretary of State to make regulations imposing a ban on shareholders and employees of commissioning support organisations being given a seat on a CCG committee or governing body of a CCG—I assume that it is the governing body that the amendment refers to rather than the NHS Commissioning Board. We agree that there should be no conflicts of interest between a CCG and any commissioning support organisation that it uses. The support offered by such organisations should inform decisions made by CCGs, but we have always been clear that CCGs cannot delegate their duties or responsibilities. However, such an absolute ban would not take into account situations, for example, where a CCG may wish to invite individual employees from commissioning support organisations to provide expertise on a committee. The Bill already requires CCGs to have robust provision for managing conflicts of interest in how they discharge their functions.
It is clear from the debate that these amendments were proposed with the best of intentions, but I hope that noble Lords will feel that the points that I have made are sufficiently compelling to encourage them not to press the amendments.
I have a few questions that I would like to answer briefly. The noble Lord, Lord Hunt, suggested that the chair and deputy chairs of CCGs should be lay members. Each CCG must have at least two lay members. We are specifying that, and we have committed that one of the lay members of CCGs will be either the chair or the deputy chair of the governing body.
The noble Lord, Lord Rea, asked me how a CCG’s geographic area would be determined. The primary factor in establishing the CCG’s boundaries or geographic area would be the practices that made up the membership of the CCG. The NHS Commissioning Board must satisfy itself that the proposed area for a CCG is appropriate and that the CCG can commission effectively for that area. That is a very condensed explanation of what the Commissioning Board will be looking for.
The noble Lord, Lord Hunt, suggested that he could not understand how CCGs would be accountable. Accountability is a key area. There is no doubt about that and I share the noble Lord’s desire to get this right. We listened to the Future Forum when it said that there is a balance to be struck between the need for good governance and the need to avoid overprescription. Perhaps that is a generally accepted principle—I certainly agree with that. I think the amendment of the noble Lord, Lord Hunt, goes too far. However, we are absolutely clear that CCGs will be materially accountable in a number of ways. I could recite a number of ways that I have in front of me, but at this hour it might be appropriate for the noble Lord to receive that in writing from me. I would be happy to do that and to copy it round.
On the subject of conflicts of interest, we will be having a very full debate in the context of Clause 20 on conflicts of interest. I have a lot of material here, but essentially there are principally three safeguards in the Bill to prevent conflicts of interest: statutory requirements on clinical commissioning groups to have in place arrangements to manage those conflicts of interest—those have got to be set out in the group constitution; secondly, strengthened governance arrangements as regards the governing body, and I briefly outlined those; and specific provision for regulations to require that the board and the clinical commissioning groups adhere to good practice in relation to procurement and in commissioning healthcare services.
My noble friend Lady Jolly asked who will appoint members of the clinical commissioning group boards. We will work with patient and professional groups and with emerging clinical commissioning groups to determine the best arrangements for appointing members of governing bodies. As I have indicated, the Government will issue regulations in due course, setting out in more detail the requirements for appointing non-GP members to the governing body.
The noble Lord, Lord Hunt, asked whether non-executives would be in the majority on boards. I am not currently able to give that assurance. We are still working with a wide range of stakeholders on the regulations for governing bodies. We are well aware of concerns in this area. I will take the noble Lord’s points very firmly on board.
Very briefly in this group, I would also like to speak to government Amendments 172, 173 and 175, which are minor and technical in nature. Amendment 172 clarifies that the remuneration committee of the CCG governing body has the function of making recommendations to the governing body on its determination of allowances payable under a pension scheme established by the CCG for its employees under paragraph 10(4) of Schedule 1A. Government Amendment 172 allows regulations made under new Section 14L(6) to make provision requiring CCGs to publish prescribed information relating to determinations of the allowances payable under a pension scheme. Government Amendment 173 makes provision for the board to publish guidance for governing bodies on the exercise of this function. I trust the Committee will join me in supporting these minor and technical amendments.
Lord Whitty
My Lords, I thank the Minister for that detailed reply to what has been a fascinating debate. I fear, however, that he will have to return to a number of these issues.
The issues of accountability, governance, conflicts of interest and transparency are about confidence in the new system—not only confidence in this House but confidence in the population. The issue of coterminosity—which I thought was a word I had invented but I am glad that others took it up—is also vital to that because people understand the county boundary and where the services are and that there is a relationship between them. I am grateful for the Minister’s offer of a letter on the geographic boundaries but, before we complete the consideration of the Bill, we will have to be clear what the relationship between local authorities, providers of social services, those responsible for public and environmental health and the new CCGs is going to be. That also is an issue of confidence and understanding by the population and the people who use the health service.
Having said that at this hour of the night—I note the Chief Whip’s impatience—I beg leave to withdraw the amendment.
Public Bodies Bill [HL]
Lord Whitty Excerpts(13 years ago)
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Lord Whitty
“( ) In relation to a transfer to another public body or to any other body of functions, duties or powers under section 1 or 5, or to a merger (where such transfers are involved), under section 2, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246) shall apply to a transfer which relates to rights or liabilities under a contract of employment whether or not the transfer would, apart from this subsection, be a relevant transfer for the purposes of those regulations.
( ) In the case of an employee of a body whose functions, duties or powers are transferred or merged under section 1, 2 or 5—
(a) a period of employment with the transferor is to be treated as a period of employment with the recipient organisation;(b) the transfer to the recipient organisation is not to be treated as a break in service.”
Lord Whitty
This amendment deals with the way in which the employees of the organisations covered by this Bill are dealt with. On one level, I apologise to the Minister for bringing the issue back because we debated it in Committee. Subsequently, I had a meeting with him and he sent me a useful letter. His goodwill in this respect is appreciated. However, I do not think that the situation is as clear as it should be, and I certainly do not apologise to the House or to the Government as a whole for bringing back an issue which is important to what are still several thousand public sector employees in those organisations which remain in the Bill.
One has to accept that some of the anxieties and suspicions relate not so much to the Bill as to the perceived general attitude of some members of the Government towards public service workers as a whole. Many employees of the organisations concerned have huge expertise and have been there for many years. They have done a very effective job on behalf of the population as a whole in those areas of public responsibility.
I appreciate that the Government have reached a conclusion that some of these bodies are no longer necessary. They have also reached a conclusion that some of their functions, powers and responsibilities are best carried out elsewhere, either in central government, the private sector, the third sector or in other public bodies. That has left huge uncertainty among employees. The Minister’s assurances have gone some way towards clarifying the position, but not entirely. The Minister’s position seems effectively to be that where there is a transfer, TUPE will apply, except where there is a public function exemption, in which case the Cabinet Office guidance—the COSoP, as it is termed—will apply, which will give rights and responsibilities equivalent to TUPE. If there are any doubts, what is now Clause 23(6)(f) will apply and Ministers will be able to clarify the situation when the regulations regarding individual organisations come into play.
On the face of it, that is a relatively watertight position and, generally speaking, the principles of TUPE will apply where there is a transfer. I do not apologise for reverting to the organisation of which I was chair until Christmas and which is still in the Bill. For reasons best known to the Government it is listed under Schedule 1, for abolition, whereas BIS’s policy as far as I understand it is to transfer the powers rather than to abolish them. They will be transferred in the main to Citizens Advice, which is a private sector body. If that is the case, it is not clear which powers, functions and responsibilities are being transferred or whether all of them will be, and whether they will all be transferred in the same direction—it is clear that they will not, because Citizens Advice Scotland and the Consumer Council for Northern Ireland will have some, other bodies will undertake others and others will lapse. That is not an unusual situation with the various bodies still stipulated in the Bill; indeed, we have just had a debate focusing largely on the RDAs, some of whose functions will in effect transfer to local partnerships, local government and elsewhere. Uncertainty is therefore quite widespread until the consultative process leading to the regulations makes the situation clearer.
In his letter to me, the Minister has said:
“In any transfer scheme relating to an order made under the Bill, a person will need to … determine a ‘relevant transfer’, as defined by TUPE, is taking place. This will sometimes not be the case, for example where the new organisation will be carrying out a function or activity which is different in nature from the old, or where the exception in TUPE”—
which relates to public functions—
“applies. In the first case, it would not be appropriate to apply TUPE. The reality is that a ‘transfer’ is not actually taking place—employees’ roles are not going to be continued. Accordingly, the situation should be dealt with by their current employer terminating their contracts by reason of redundancy and meeting his liabilities as regards compensation”.
That is quite logical, but, regrettably, it is not what the guidance on TUPE from BIS actually says at present. It effectively says that the responsibility for determining which measures will be regarded as transferred rests not with the existing employer but with the transferee employer—so not the transferor employer.
That has caused some confusion in the past, as it did when Consumer Focus was first set up because it did not seem to be the logical way of approaching things. It made the Minister’s words seem more logical in many respects. But they are at odds with what tribunals have been interpreting under the 2006 regulations and what, in slightly obtuse form, the rather lengthy guidance issued by BIS states very heavily: it places responsibility on the transfer organisation. That is one example of the lack of clarity and we need greater certainty on the record.
Relatively few bodies involved in this Bill are designated for merger, but when there is a merger, everything goes into the merged body, whether or not that merged body will have the responsibility for doing everything that the previous organisation was going to do. In which case, the exemption does not apply, but on the Minister's interpretation TUPE does not apply either.
I am well aware that there is a general view in Whitehall, following the Cabinet Office's guidance and so forth, that says to staff, trade unions and Back-Benchers like myself, “Don't worry about it, you lot. It will all become clear. The Government are committed to applying the TUPE principles”. It is also true that in certain situations, where the function is not continuing, it may be in the interests of individuals for TUPE not to apply. But we still need clarification as to what is a relevant transfer.
In the case of my old organisation, it is not clear what is being transferred. It is not clear to whom and it is not clear whether some functions will not be transferred and whether TUPE or COSoP will be applied. In that respect and in relation to many of the other bodies, we anticipate a consultative document fairly soon. However, I understand that the consultative document on consumer structures that was expected to be issued in March has been significantly delayed and the final outcome of that is again not clear, so the whole process has been put back. I would like the Minister today to clarify the situation. I accept his goodwill in this matter and I assure him that I will not press the issue to a vote, but I would like on the record at this last stage an indication of where the Government stand.
It is not all that easy to rely as a safety net on what is now Clause 23(6)(f), which states that a transfer scheme may,
“if the TUPE regulations do not apply in relation to the transfer, make provision which is the same or similar”.
The clause says “may” and it is sensible in the drafting to say “may” because there are a lot of other subsections to which “may” clearly applies, but it would be helpful if the Minister would say that as far as that subsection is concerned, the transfer scheme “would” make provision for the equivalence of TUPE to apply in those circumstances.
I am asking the Minister to say what he has already attempted to convince me of, although I do not think we are yet there: that in all situations where there is a transfer or merger, individuals will be subject to either TUPE or the public sector equivalent. The default position should be that TUPE or COSoP applies and that in that sense the Government accept their responsibility to all employees of the quangos that remain subject to the Bill and to the obligations that they have in terms of individual and collective procedures under TUPE regulations.
If the Minister can use words to that effect, I will not press him further today and he will go some way to reassure several thousand rather anxious public sector employees, many of whom the Government will continue to need to rely on, albeit possibly in a different guise. I beg to move.
Lord Taylor of Holbeach
My Lords, I am grateful for the opportunity of coming back on the amendment proposed by the noble Lord, Lord Whitty. I am sorry if my prose failed to clarify the situation as well as it might, and I hope that my words and the speech prepared for me provide the clarification that the noble Lord seeks. He used the phrase, “words to that effect”. Let us hope that these words that I am about to deliver are to good effect.
The amendment gives me, as the Minister taking this Bill through the House, an opportunity to say that the Government recognise the valuable contribution made by their staff. We want to be, and feel that we are, a good employer, and staff in public bodies are important for good governance. We are keen to support all those affected by change and are committed to TUPE and COSoP as they currently apply. The noble Lord, Lord Whitty, agreed that extending TUPE is not necessarily the best option for all staff, which is what makes this particular matter more complex than it might otherwise be.
The amendment would require that TUPE regulations apply to any transfer of functions or activities that take place as a result of an order made under the Public Bodies Bill. As I did in Committee, I would like to inform the House why the Government believe that existing protection for staff is sufficient and why it would be inappropriate to accept the suggested amendment.
The purpose of TUPE and the European law that underpins it is to protect staff in circumstances where the business that they work for or services to which they are assigned are to be carried out by a different organisation. TUPE ensures that the staff retain their jobs and conditions with new employers stepping into the shoes of the old. When a change falls within the TUPE definition of “relevant transfer”, TUPE will apply and the staff will be protected. The definition is broad and many changes brought about by the Bill will be covered. However, there may be circumstances where it is uncertain whether TUPE applies or is excluded.
Clause 23 gives the Government the power to provide protection to staff in circumstances where TUPE is not engaged. This is underpinned by the Cabinet Office statement of practice on staff transfers—referred to as COSoP—which provides that, even where TUPE does not apply to public sector transfers, organisations will be expected to apply TUPE’s principles as a matter of policy. I assure the noble Lord that the Government remain committed to COSoP. In practice, such transfers are effected through legislation which closely follows the provisions in TUPE, including the continuity provisions.
Legislative transfer schemes which are used to effect transfers in non-TUPE situations do not always apply TUPE to the letter. For example, some schemes permit greater flexibility in relation to post-transfer contractual variations. This can assist the process of harmonising disparate reward packages, thus reducing the risk of unlawful discrimination, particularly on equal pay claims, and avoiding unnecessary barriers to reform. Where the change does not fall within the definition of “relevant transfer” because the new organisation will be carrying out a function or activity which differs in nature from the old, it would not be appropriate to grant TUPE protection; the reality there is that there is no transfer of employees’ functions—the staff are redundant and should be dismissed and paid the compensation to which they are entitled. I assure your Lordships that, if there is legal uncertainty on whether a function is to be continued, Clause 23 gives scope for TUPE protection to be provided.
It would be inappropriate to accept the amendment because, in the Government's view, the blanket application of TUPE to all those transfers which are effected pursuant to the Bill is not appropriate and could lead to inefficiencies and unintended consequences. The Bill provides a framework for a wide variety of reforms to public bodies. Given this, it is crucial that those involved in transfers taking place under the Bill retain the flexibility to respond to each situation according to the facts. It is necessary to form a judgment in each case about whether the particular facts fall within the TUPE definition of “relevant transfer” and, if not, whether a transfer scheme which follows TUPE principles is appropriate. Staff could otherwise be compelled to move and, perhaps, relocate—even where their work is not going to be continued—and all those involved in the transfer could find themselves subject to restrictions which are not helpful nor apposite to the situation.
I appreciate the contribution made by the noble Baroness, Lady Turner of Camden, and I thank the noble Lord, Lord Whitty, for again bringing this to the attention of the House. I assure them both that I am quite happy to write to them again and will keep them posted on developments under the legislation, if they wish. In respect of Cabinet Office advice in this area, I am perfectly happy to keep all noble Lords informed on this matter. However, in the light of the assurances that I have given, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Whitty
My Lords, I, too, thank my noble friend Lady Turner for her points underlining the issue of uncertainty that surrounds so many employees in these organisations and beyond at the moment. I am also grateful to the Minister for stating pretty clearly the Government’s commitment to the TUPE principles and to continuing to apply COSOP where that is the relevant coverage. I was slightly more dubious about the last two or three paragraphs. There is a slightly schizophrenic nature to the Minister's response. I do not know whether two people drafted his speech for him, as he carefully said at the beginning. On the one hand, there is that very clear commitment, which I appreciate. It is an important message for the Government to get out there. There were then references to flexibility in situations which hitherto may well have been regarded as transfers. I accept that some fine-tuning of TUPE is necessary and helpful, provided that that is done individually or collectively with the employees concerned.
The situation where neither TUPE nor COSOP applies probably requires one-off handling. However, if the principle is that the main principles of TUPE will be held to apply unless there is a good reason why they should not, I would rather have heard a speech from the Minister in those terms—that the default position is that TUPE should apply. However, clearly I am not going to get a lot more from the Government on this one; I think that I have done quite well over the previous stages of the Bill. I suspect that there will be some work for our learned friends in some of these areas, and I hope that the good will extended by the Minister at the beginning of his speech and the commitment to the TUPE principles that he reflected here will in practice be reflected in the proposals for the individual organisations and the approach that the individual departments take when we are drawing up the regulations to implement these parts of the Bill.
I thank the Minister. I am not entirely satisfied, and I suspect that some people outside will not be either, but I will not press this today. I beg leave to withdraw the amendment.
Public Bodies Bill [HL]
Lord Whitty Excerpts(13 years, 1 month ago)
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Lord Whitty
Lord Whitty
My Lords, my comment this evening is basically: why is Passenger Focus still here in the Bill? As the noble Earl knows, Passenger Focus had the distinction of appearing in three schedules to start with, plus we had a generalised statement from BIS that it wished to bring all consumer bodies together as one body, probably Citizens Advice. Because the consultation on all that has been postponed, we do not yet know whether the Government are still so minded, although I suspect that the noble Earl’s department has seen off that proposal for the moment, so we are discussing Passenger Focus as a separate entity. In default of having a sensible rationalisation of consumer bodies, it is important that Passenger Focus remains.
When we removed Passenger Focus from Schedule 5, I received some assurances on the subject from the noble Earl, but this amendment relates to constitutional change in the body. As we have just heard from the noble Lord, Lord Henley, a lot of things could be done under the heading of constitutional change, so I would like some assurance from the noble Earl that the worst fears are unfounded. It was said that Passenger Focus would be reduced to its core role. I expressed concern at the time that that might mean that it would no longer be able to criticise the general conduct of the railway or bus companies, or indeed government policy, and would simply be reduced to a complaints organisation. I think that, on that occasion, the noble Earl said that that would not be the case, but the drastic reduction in its resources—by nearly 40 per cent—suggests that it will have to reduce substantially. If, in order to meet that very much reduced budget, it has to drop some functions, we should be told which functions the Government expect those will be.
If the inclusion of Passenger Focus in this schedule is simply aimed at its governance, I would need reassurance that that would not remove the regional base of its governance and its wide remit to go into the affairs and performance of individual train and bus companies. I hope that I can receive those assurances tonight, in which case we can have a very short debate on this item and welcome the fact that Passenger Focus will be affected by this Bill only to a minimum degree. However, I need those assurances. I beg to move.
Lord Hunt of Kings Heath
My Lords, perhaps I may briefly support my noble friend in saying that I hope that the noble Earl will be able to give the assurance that he requires. The problem with Schedule 3 is that, on the face of it, it gives considerable power to Ministers to alter the constitutional arrangements of bodies and offices. I take that to mean that, if the Government were unhappy with the performance of the board of such an organisation, they could make drastic changes in its governance arrangements by bringing an order before Parliament. The problem is that that power could also be used to remove members of the board who may be causing some disagreeableness to the Government. That is a matter of concern. Clearly, if these public bodies are not able to exercise their functions in a robust and independent way, they are unlikely to do their job effectively. This relates to all the bodies listed but I think that the question that my noble friend has raised about Passenger Focus is a fair one to put to the noble Earl, Lord Attlee. I hope that, specifically in regard to this body, the noble Earl will say on the record from the Dispatch Box that the changes envisaged to governance et cetera will only be minor.
Lord Whitty
My Lords, I am grateful to the noble Earl, although some of his assurances were not quite as unequivocal as I would have liked. It is also clear that, as a result of the pressure on Passenger Focus’s budget, the restriction of research and its refocusing, it will not be as powerful a body as the noble Earl suggests. Nevertheless, I am glad he said that the Government remain committed to having a passenger advocate and see it as a very important part of how we conduct and enforce our public transport policy. I am therefore prepared at this stage to accept his assurances and I thank him for them. I beg leave to withdraw the amendment.
Lord Whitty
Lord Whitty
My Lords, in moving Amendment 39 I wish to speak also to Amendment 54. Essentially, my question to the Minister is the same as it was in the previous debate: namely, why is Ofcom still included? When we started out on this Bill, almost all the economic regulators were in one schedule or another—Ofgem, Ofwat, the Office of Rail Regulation and, I think, the CAA were all in there. However, only Ofcom remains. When my noble friend Lord Hunt pressed the Government on this earlier, there were references to cost saving and other things, but why does Ofcom appear in Schedules 4 and 5? Instead of a rational approach to the role of economic regulators, we have had departmentally based assessments of their roles, most of which have not yet reached a final decision. Ofgem and Ofwat are being reviewed by their departments but we are not looking in general at the role of economic regulators. We know that some changes are coming along the line to the scope of Ofcom because the Postal Services Bill, which is passing through this House, extends Ofcom’s reach by transferring the work of Postcomm into Ofcom. I support that move but a transfer mechanism or a modification does not need to be included in this Bill because a separate piece of primary legislation exists to achieve that.
Expenditure on Ofcom has already been reduced by the department and the reference in the previous stage to a saving of some £400,000 could be achieved administratively. It is also true that advisory committees to Ofcom can be changed without primary or secondary legislation. Indeed, it seems to me that Ofcom, presumably with the connivance of its parent department, has already removed by stealth the Communications Consumer Panel from effective operation without it being entirely clear where those functions for the protection of consumers in the communications business now lie. Therefore, it is unclear why the Government need additional powers to make savings and streamline Ofcom’s operation.
As regards Ofcom’s inclusion in Schedule 5, we know about the transfer into Ofcom of the Postcomm responsibilities but there is a suspicion that there may be some transfer out of it. Ofcom has responsibility for regulating a whole range of communications industries, many of which are deeply sensitive. I referred just now to its sponsor department but it is sometimes unclear to us who is the sponsor department for Ofcom because, on the media side at least, a significant proportion of Ofcom’s activities now appear to be the responsibility of DCMS rather than BIS. I do not regard that as a particularly healthy move. However, either way, it raises a suspicion that some of its media responsibilities, such as media ownership, broadcasting content and the whole structure of regional broadcasting, may be in line for being curtailed or moved back to the department. It would be alarming if a transfer out involved any of those items.
There are also other responsibilities. Just to show that I am not being partisan, I had a substantial and ongoing row with the previous Government about their provisions in the Digital Economy Bill. Those provisions have been handed over to Ofcom to implement, which is finding some difficult in doing that. There may be some irritation in government about that. Therefore, a lot of Ofcom’s responsibilities could be transferred out.
I should like an assurance that Ofcom’s continued inclusion in Schedule 5 in particular does not mean a reduction in its scope, particularly as regards those responsibilities. Ofcom has, in general, been a pretty good economic regulator in the consumer’s interest, as compared with some other bodies. However, it was and is always up against some powerful telecoms, broadcasting and media companies and their lawyers in almost every move that it makes. I therefore hope that the Government are not envisaging that we should reduce Ofcom’s responsibilities and are not using its inclusion in Schedule 5 to facilitate that reduction without primary legislation. I beg to move.
Lord Fowler
My Lords, I agree entirely with the noble Lord, Lord Whitty, that Ofcom is an extremely important body, and I hope that the Government accept that because, in the media area, a body such as Ofcom that is independent and seen to be independent and skilful is of the utmost importance. Certainly, as regards Schedule 3, I should like confirmation that it is not necessarily the case that the proposal means there will be a cut in Ofcom’s budget, although the budget can be modified either way.
I say that because it is difficult these days to debate Ofcom without discussing the role of the BBC Trust, which was set up by the previous Labour Government. The previous Secretary of State rightly changed his view, decided that the trust was an unnecessary body and that the logical way to run the BBC would be for there to be one chairman, a board and the executive, rather than the current extraordinary position, which is unique in the western world, whereby there is at one level the executive and then, in a separate building, the trust, headed by the noble Lord, Lord Patten of Barnes—I am glad to say. However, the noble Lord is able to call himself the chairman of the BBC only as an honorary title. That is ridiculous. He should actually be the chairman of the BBC, and there should be one unitary authority. That is the logical way, and that is why 99.5 per cent of organisations in this country run themselves in that way.
The position that I reach from that is that the responsibilities that are now with the BBC Trust could easily be transferred to Ofcom. That is their logical place and everyone has argued for that. If that happened, one would find that the Lords Communications Committee—no longer under my chairmanship—would consider this matter further. If that is the position, there would clearly be adjustments to funding arrangements and the rest, as set out here. That does not necessarily mean that the funding would be reduced, but that the funding for Ofcom would have to increase.
I ask my noble friend Lady Rawlings—who, I am glad to see, is refreshing herself with water for her reply—whether she will confirm that that is the case. It would be a grave mistake for the Government to accept the argument put by people who have very vested interests that Ofcom is of no particular value and should be downgraded. Everything that has happened in the media world over the past six months confirms the view that the importance of Ofcom should be underlined. That is what I should like to hear from my noble friend now that she has refreshed herself.
Lord Whitty
My Lords, I thank the Minister for those assurances as they have taken us a little further than previously. I also thank the noble Lord, Lord Fowler, and my noble friend Lady Jones for their contributions.
I understand from the Minister that there are nine changes. I may not approve of all of them but she is probably right to say that they are relatively small changes. One which she cited was about having no regular reviews unless the Secretary of State says so. I would probably not approve on the specifics, but nevertheless I accept that they are relatively minor changes in the overall picture. The power that will come in with Amendment 60 will mean that Ofcom will be removed from the schedules, so it is an early sunset clause. In the light of that, and as we have received greater assurances than previously, I shall not press my amendment tonight.
Although the noble Lord, Lord Fowler, made some good points to start with—and I do not entirely disagree with him about the structure of the BBC—including this regulator in the list for some future secondary legislation is the not way to change the governing structure of the BBC. I am very glad that that is not one of the consequences of allowing this to stand. In the light of the noble Baroness’s tight assurances—more than we have had for several other bodies—I beg leave to withdraw the amendment.