Health and Care Bill (Third sitting)

Edward Argar Excerpts

Committee stage
Thursday 9th September 2021 Public Bill Committees

[Justin Madders]

Thank you very much.

[The Minister for Health (Edward Argar)]

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

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

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

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

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

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

[Edward Argar]

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

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

[Edward Argar]

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

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

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

[Edward Argar]

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

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

[The Chair]

Thank you very much. We are making excellent time.

[Justin Madders]

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

[Edward Argar]

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

[The Chair]

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

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

Examination of Witnesses

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

--- Later in debate ---

[The Chair]

Thank you. We now go to Minister Argar.

[Edward Argar]

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

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

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

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

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

[Edward Argar]

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

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

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

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

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

[Edward Argar]

Thank you all very much, I have no more questions.

[The Chair]

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

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

Health and Care Bill (Fourth sitting)

Edward Argar Excerpts

Committee stage
Thursday 9th September 2021 Public Bill Committees

[The Chair]

I had better move on at this stage. I am really sorry, Nigel. Minister?

[The Minister for Health (Edward Argar)]

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

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

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

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

[Edward Argar]

Thank you all very much. No more questions, Mr McCabe.

[The Chair]

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

--- Later in debate ---

[Alex Norris]

Q So in your modelling it would be a partnership of the two.

Louise Patten: It is both/and.

[Edward Argar]

Q I only have a couple of questions, Mr McCabe. I welcome the witnesses and thank them for their evidence so far. One question will be one that I have asked witnesses in previous sessions. We are seeking with this legislation to recognise the existing evolution of the system and the limitations of legislation in driving implementation and behaviours on the ground, as opposed to people finding their own ways of working within a framework. We have therefore focused on a permissive as opposed to a prescriptive approach. Do you believe that we have got the balance right in seeking a permissive framework rather than a prescriptive one? Are there any examples that you would add to what you have already said to illustrate your perspective on that?

Dame Gill Morgan: Yes, I think you have got the balance, and that is the joy of working with a Bill team. I think the balance is right. You have tried not to be prescriptive and tie our hands, but you have been clear in the sense of setting a direction and focus that we will all take into account, so you do not have to tell us things to make the NHS do it. We do it because we pick up the runes.

On the issues that we would be more concerned about, I personally am concerned about the ability of the Secretary of State to call in changes. In part that is because the one thing I think the NHS has learnt in the time that I was out and came back is how to do relatively good consultations. We have just finished a massive consultation. Patients have gone with us. The local communities have gone with us, mostly. We have had citizens juries and all sorts of things to reach a consensus about the direction of travel. The worst thing in the world would be that people say, “There is no point in engaging in those mechanisms locally because, at the end of the day, we will just complain to the Secretary of State and it will not happen.” If that becomes the way people manage that part of the Bill, it will take us backwards, not forwards, in terms of proper citizen engagement.

Louise Patten: On balance, it is about the Secretary of State’s powers of reconfiguration, and NHS leaders in general are concerned about that. It is not so much about the Secretary of State having an early understanding of the reconfigurations or the intent, but about the fact that that decision could be taken at a point where all the evidence is not ready to be properly considered.

Building on Gill’s point, patients and the public would be very frustrated if they felt that they had not had an opportunity to be answered, so we are asking, if not for the clause to be removed, for at least the clinical case for change to be considered from the ICB. Coming back to clinical decisions about clinical services, we want that accountability to local communities, not just up to Whitehall, and some transparency about why the decision was made, and on what basis and information it was taken.

[Edward Argar]

Q Thank you. My next question follows on from that, acknowledging that point about reconfiguration powers, and builds on your clear answer to Karin that you think that what is framed here strengthens local accountability and engagement, and relates to something that you may have mentioned earlier, Gill, in some of your answers. Do you think that it is the right approach, in terms of ICB membership and others, to set a de minimis core membership and then allow that local flexibility to reflect local needs, local accountability and local engagement, to expand it as the local system and local people feel appropriate? Do you think that strikes the right balance?

Dame Gill Morgan: I think you are absolutely right: de minimis. What I have argued throughout is that if the centre, if you and then NHS England, which issues guidance, are clear about the principle that we have a proper engagement mechanism with our local authorities and citizens, they need to ask us how we are doing that, and to ensure that our constitution meets that. There are plenty of checks to ensure that it happens without you telling us that we have to have this, this and this.

In our case, we will have mental health and social care around the table, not because we are told to but because we could not imagine how we could do our work at a local level without having those people feeling that they are full partners and sitting around the table. There is a set of concerns about having local government involved in making decisions about the expenditure of large amounts of NHS money. I do not care; they are the local people who need to be involved in the decision making. Actually, if they see the deliberations and challenge first hand we will get better-aligned budgets. At the end of the day, that is to everybody’s benefit.

Louise Patten: There are already five mandated board positions in the legislation. A further five will be in the mandated guidance from NHS England. We are up to 10 already. I think the most important thing here is: where do you stop? There is a risk that there is a perception of two tiers—that those who have a mandated position on the board are of more importance than others. That flies in the face of partnership working.

[Edward Argar]

Q A final question, if time allows. I entirely take on board your point about the aim, the underlying point about implementation being key here—almost more so than the legislative framework—and the point about a single pot and sense of ownership. I remember the old section 75 of the National Health Service Act 2006, rather than the Health and Social Care Act 2012, being the mechanism that I used when I was a councillor to work with the primary care trust. It worked, but it was a bit clunky at times. My question is one that I have asked other witnesses, so I suspect that it will not come as a surprise to you. Do you think that this is the right time to be introducing these changes and legislation and, if not, when would be?

Dame Gill Morgan: My view is that we are where we are and we need to progress. Going backwards would be a problem, but actually I am a bit more positive than that. Covid has demonstrated to people that if they think innovatively, out of the box and in partnership ways they can get solutions that are quicker than they would have been before, so in the system as a whole there is a recognition that partnership has offered more. We will all retrench as the world moves on from where we are, but there is real learning from covid on which we can capitalise. Many systems have done reviews of what worked and why, looking for the silver linings in that learning. I think the Bill goes with the analyses that have come out.

Louise Patten: At the NHS Confederation, we have that sort of umbrella view. We must not forget that, on collaboration and integration, people have been working to this for some time. There are some great examples of it, and this legislation moves that opportunity to really accelerate it. People recognise that it is a tight timescale, but they are absolutely committed to doing it.

[Edward Argar]

Thank you both very much. No more questions, Mr McCabe.

[The Chair]

Dr Whitford, did you have anything else?

--- Later in debate ---

[Justin Madders]

Q I have one more question, Mr McCabe. One of the consistent points we have heard from witnesses is that they are not convinced that the provisions in the Bill on workforce are sufficient to deal with the workforce challenges that the NHS faces. Would that be something that you feel is also the case for mental health professionals?

Andy Bell: This is incredibly difficult. We have some very ambitious plans now—the NHS long-term plan ambitions for mental health. There is, quite rightly, an awful lot of money going into that, because we have a very big gap in our ability to meet people’s needs. The only way that is going to succeed is if we have a very significant expansion in the mental health workforce.

We need to remember that that workforce is not just what people think it is. It is obviously nursing and obviously psychiatry, but it is also social work—a lot of really important mental health provision is in local government under social care. We need to think about the importance of advocacy and the importance of peer support, the importance of employment and housing rights workers, who we know make a big difference to people’s lives. There is also the key role of the voluntary sector in providing forms of support that may not come under traditional clinical headings, but none the less make a huge impact in people’s lives. We need to build the workforce.

The Bill gives some steps forward and summary assurances. In some ways, it is not quite the right place to be dealing with this. This is about whether the various parts of the system—the health education system, the NHS itself and its partners in local government—have the resources and the right ways to encourage people to come and work in mental health. It would be great to see the kind of recruitment campaigns we have had for the NHS as a whole to really help bridge that very big gap in the mental health workforce. At the moment, I think the Bill is probably neutral on it. It would be good to see some stronger assurances, at the very least holding the Secretary of State to account for how they are achieving the workforce ambitions set out in the long-term plan and future policies that will have to come.

[Edward Argar]

Q Good afternoon, Ed and Andy. Andy, in my first question, can I pick up on something you said there, before I broaden out to a question to you both? You talked there, quite rightly, about the importance of parity of esteem for mental health. As a local councillor years ago, I saw how important local councils and the NHS working hand in glove on mental health provision is, because if we get one half right but not the other half, it just does not work.

Building on what you have already said about the legislation, what would you identify as the opportunities of the legislation, if properly implemented or interpreted in the right way, for furthering that linkage and that joined-up mental health provision? Obviously, that goes beyond local council services and the NHS. There are a whole wraparound series of services that impact on someone’s mental health. What do you see as the opportunities in the legislation that we either need to draw out further or at least not lose sight of?

Andy Bell: This is about building real, sustainable, long-term partnerships. One of the things I know colleagues in the NHS and local government find very frustrating is that they just find a way of working with each other and then the legislation changes again and they have to start all over, so it is about having a system that actually works and stays working, that builds on the best of what is there already. I think there is some frustration in places where they spent a long time building relationships between clinical commissioning groups and local authority colleagues, sometimes with jointly employed staff, and now they have to start all over again because we are moving to a different thing. That will be immensely frustrating for many folk.

If we take the principle that this is about integrating care and equal partnerships between different players, including the voluntary and community sector, and if we give that time to work, we will enable partnerships to form with a clear voice for people—for example, in the case of mental health, for people living with mental health difficulties—so that decisions are being made with and in partnership with the people who use them rather than remotely by professional experts on their own.

Collaboration is incredibly important too. One thing we really welcome about the Bill is that it is moving us away from a system of competing providers to providers working collaboratively—literally, in providing collaboratives. There is a slight risk that all the power will be vested in one organisation and there will not be that check and balance between commissioner and provider. But some of the early provider collaboratives working in children’s mental health services that we have looked at have made really huge strides really quickly to reduce, for example, the number of children forced to go to hospital outside their local area in a mental health crisis. They have come together, looked at what support is needed for children in a crisis and put community services, in particular, in place to achieve that.

One further thing that will be important is that there is some positive provision in the Bill to ensure that ICBs—I think it is ICBs, yes, it is—have to take into account inequalities in access and outcomes. That is great, but there is not that requirement to pay attention to inequalities in health and to go out and identify which groups of people are experiencing health inequalities and what the system can do to deal with that upstream rather than waiting for people to need formal healthcare. That would be the other part that would really help in the Bill—to build on some of the positive noises and moves in the right direction in collaborating at the level of prevention and on the things that determine our health as well as in the provision of services when things have reached a point where people need care.

[Edward Argar]

Q In the two and a bit minutes I have, in order not to get cut off by Mr McCabe, I will direct my question to Ed and will bring you in, Andy, if I have time. We have heard about how what is proposed in many ways enhances local accountability and local authority involvement in decision making, but to go back to your earlier comments, would it be fair—you are entirely entitled to say that it would be unfair, and that I am misinterpreting—to say that alongside that your request was a request that in enhancing that we should not lose the local accountability mechanisms and processes that have already grown up over the years in local authorities, be that health and wellbeing boards, joint overview and scrutiny committees, or whatever? Is that a fair characterisation? Feel free to correct it.

Ed Hammond: Broadly speaking, yes, that is fair. My central point would be that those structures and the opportunity that local government has through this Bill for more direct and active involvement in health and care decision making are good, but there still needs to be that separate independent source of accountability that we feel sits properly at a local level with democratically elected local councillors who have powers through health scrutiny committees to talk to local people about their needs. That needs to be there and needs to be strengthened. In respect of the Secretary of State powers I was talking about, my worry would be that we would see ICBs and ICPs looking over their shoulder at what the Secretary of State might want to do rather than looking down to local communities to understand where local need lies, with decision making being led somewhat by what people think national priorities should be.

Part of the solution to that problem is the things we have proposed around, for example, requiring the Secretary of State to consult with local scrutiny committees before exercising those powers, having the powers for local scrutiny committees formally to escalate things to the Secretary of State to act on, and what we have suggested for more effective joint scrutiny by multiple councils of the ICB at system level as well. Those are all part of that strength and accountability framework. It is about saying, “Okay, we have involved local government in decision making through the ICPs and through continuing the health and wellbeing process, but in doing so we also have to enhance and build on our existing health scrutiny arrangements.” As things stand, the Bill removes elements of those by removing the power of referral. It is about having a balance of accountability arrangements and ensuring that that strong external accountability continues.

[Edward Argar]

Thank you.

[The Chair]

We had better leave it there. We are out of time. I thank you, Andy and Ed, for your evidence today.

Examination of Witness

Sir Robert Francis QC gave evidence.

--- Later in debate ---

[Alex Norris]

Q Thank you.

We will move on to something else that you said in your written evidence. On Tuesday, we had a very good conversation about data, but the whole thing was about quantitative data. In your written evidence, you talk about qualitative data, and it is very easy for us, as Members of Parliament, to conceive of the importance of that, as it is something that we routinely draw on. With your insight from leading Healthwatch, how can we develop systems that properly trap that, use that and prioritise that just as much as the quantitative data?

Sir Robert Francis: Technically, these days, that is no problem at all. You will not expect me to explain that to you, but the qualitative data—comments from the friends and family test, or similar things—is easily mined these days. You can develop a view of the sentiment that comes through it, and you can then dig down more closely into specifics if you need to. That information is extremely valuable to Healthwatch in determining what people think about a particular subject or services, and we feel that there should be a recognition that that data, in that form, should be capable of being shared with a statutory body like Healthwatch, and possibly others.

We also think that—I am sure others might agree—while quantitative data is extremely important, it is informed by qualitative data. The personal impact—good or bad—of things that happen in the service are best described by the people who have received that service. If you just look at figures—I am afraid that this was a problem at Mid Staffs—you lose a great deal, and the trigger for change and improvement is lost.

[Edward Argar]

Q I will try to be brief in the five minutes that we have left. Sir Robert, I have two questions: one with your Healthwatch hat on; and one in your personal capacity—and also as an eminent lawyer.

We sought with this Bill to be permissive rather than prescriptive; behaviours, and how things work on the ground, are often as, if not more, important than the framework. Notwithstanding your on-the-record comments about Healthwatch participation in ICB levels as a formal member, what else would you draw out as opportunities within the framework to build on patient participation and accountability to those who pay for, and use, the service? Are there other opportunities, that, with a small tweak either in guidance or in the Bill, we could seize more effectively?

Sir Robert Francis: I suspect that there is something around reporting, particularly with the oversight of quality, inequalities and matters of that nature, which would be of assistance. I agree that flexibility of engagement is really important, and Healthwatch claims no monopoly over this. I see it taking place in guidance. If the emphasis is to change culture to one where the service is being responsive to people’s needs, as opposed to providing them with what the service thinks they need, there could be greater emphasis in the Bill on ensuring there is a strategic plan for engagement. There could be more emphasis on how the ICS is going to engage with local people and communities, and an actual requirement that it provides comprehensible information to the community about how people should be able to communicate with it. I know they sound like matters of detail, but if there is an obligation to make such things clear, it does not prevent flexibility, but it does oblige organisations to actually do it—and mean it. There will be lots of other ideas, I am sure.

[Edward Argar]

Q That is useful, and builds on your written evidence. What do you think in a personal capacity? This builds on Dr Whitford’s questions and acknowledges Keith Conradi’s preference that the safe space be not qualified. If one accepts that it is qualified in respect of aspects of the judiciary—he acknowledged in those circumstances that he would accept that—would you consider that a High Court judge is probably the most appropriate person to make such a judgement on whether something should be taken out of the safe space and made available to a coroner?

Sir Robert Francis: In relation to a decision of whether information should be capable of being used in legal proceedings, there is no better qualified person than a High Court judge—so, absolutely. My advocating that there should be some qualification in relation to the family does not mean, in any way, that I suggest they should then be able to use that for litigation or other purposes. Indeed, some of the conditions you might impose on them in order for them to get the information are that they do not do those sort of things. There will be areas where it can be said that it is too sensitive for that. Of course, there may need to be a balancing of people’s rights of privacy. It is really about ensuring that families feel that they are not being excluded or that something is being hidden from them. We need to build trust. I do not think that that decision needs to be taken by a High Court judge, because it is not about legal proceedings; it is about something really quite private.

[Edward Argar]

That is extremely helpful, thank you very much.

[The Chair]

Thank you, Sir Robert.

Examination of Witnesses

Stephen Chandler and Gerry Nosowska gave evidence.

--- Later in debate ---

[Jo Churchill]

Q Thank you. Gerry?

Gerry Nosowska: Prevention is always undermined by the resources moving into urgent and acute needs. In practice, social workers are not able to do therapeutic, restorative support work that they would be able to if they had the time to spend with people who need that. There is a fundamental resource issue that the Bill does not address directly, but it may help with the potential for pooling resources. Again, people in the community do not care whether it is a health or social care resource. If there is a need emerging that can be responded to, and preventive work can be done, it should happen without health and social care arguing about exactly whose purse it comes out of.

There are some really successful examples of reablement and preventing avoidable hospital admissions. We know it is possible. Scarcity does breed competition rather than collaboration, so that is something to think about. As for what the Bill might also do, the partnership strategy ought to have a very strong preventive element to it, and that needs to be dug down into locally—into particular communities, neighbourhoods and streets. That is where you really need lived experiences. I have a question about the regard that the integrated care board would have to that, and the potential for a wonderful, collaborative partnership strategy around prevention to be disregarded because of an acute need. I was listening to Robert Francis, and I think his suggestion that there be a written explanation to a local community if that happens is very good.

[Edward Argar]

Q Just one question to both of you, if I may. First, thank you for all that you and your members have done and continue to do. I say that as a former council cabinet member for adult social care and health and public health. I know the shadow Minister will share that sentiment. When I was doing that job some years ago and I was not quite so grey, the director of adult social services with whom I worked was a lady called Marian Harrington, who had been working in adult social care for a long time. A key point that she always emphasised to me was the importance of a close working relationship between the NHS locally, social care and the local council, particularly on discharge, but also on the ongoing care of people with multiple needs who were receiving social care. She would always say to me that although the framework was important, equally important were the culture, the behaviours, and trusting relationships between organisations in the framework.

I will turn to Stephen first and then to Gerry. We have sought to be permissive rather than prescriptive in this Bill. Have we struck broadly the right balance, or are there areas where it might need to be tweaked, either in legislation or in guidance?

Stephen Chandler: Your director colleague was absolutely right. I think that you have got the balance right in relation to permissiveness. I worry that the guidance does not prescribe directly how we should develop that culture, but having worked as long as I have, I realise that you cannot prescribe how relationships are formed and how cultures work. You have to create the conditions for success. Some of those conditions are in the Bill. I have talked about some of them in relation to the pooling, the boards and the assurance methodology. What has to be absolutely clear—and I am hearing it clearly, so it is not that I have not heard it—is the importance of seeing this as a vehicle for meaningful change to people’s lives, not a restructuring of health and social care. Rather, this is a vehicle for improving the lives of people in communities and systems, and for allowing health and social care professionals to maximise their individual abilities for that collective good. In a way, there is a duty on me as a leader in the system to create that culture and environment.

You have not gone into the area of assurance, but for me it is really important that when assurance looks at a system, it looks at the leadership and how that leadership translates the freedom, the permissiveness, but also the accountability, clearly. The feedback I am hearing from our members is, “We favour the permissive approach that is taken in this.” We would not say that the tolerance should be changed one way or the other.

[Edward Argar]

Gerry?

Gerry Nosowska: Apologies, I think I lost my connection for a moment, so I might repeat some of the things that Stephen said. On the balance between permissive and rigid, we have an interest in the consistency of opportunity and outcomes for members of the population. Areas face different challenges, so it is important that locally there is flexibility around how those challenges are met. What will hold those models together are the principles of ensuring transparency around decision making; the involvement of lived experience and clinical expertise in both social care and health; and real local accountability. Certainly, more local community decision making, planning and work, and less centralisation, is much more in tune with responding to the lived needs of people and their day-to-day priorities.

[Edward Argar]

Thank you, Gerry and Stephen. I have no further questions, Mr McCabe.

[The Chair]

May I thank our witnesses for their evidence? That brings today’s oral evidence sessions to a close. The Committee will meet again on Tuesday in Committee Room 14, with Mr Peter Bone in the Chair.

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

Health and Care Bill (First sitting)

Edward Argar Excerpts

Committee stage
Tuesday 7th September 2021 Public Bill Committees

[The Chair]

Thank you. I call the Minister.

[The Minister for Health (Edward Argar)]

Q Thank you, Mrs Murray. I will try to be brief, with just two questions. Morning, Danny; morning, Navina. My first question is this: what do you see as the potential role of legislation in addressing future workforce needs— both the limitations of legislation in doing it and the opportunities?

Dr Navina Evans: I will start with the opportunities. We in HEE are really pleased to see that workforce is prioritised in the way that it has been. For us, that means that there is an expectation and an understanding of the need to tackle complex issues of future workforce planning, and that is hugely important. We can do it; it is a difficult task, but through collaboration and bringing people together, it is something that we simply must do, so that we can have more and different, and we can be really future-focused and progressive in the way that we deliver health and care. It is all down to our workforce. So that is the huge opportunity, as we see it.

There are risks. For us, one risk is that too much bureaucracy and added layers of hoops will get in the way, and the other risk is that we have to work hard to make sure that we address culture and collaboration to make this truly successful.

Danny Mortimer: The opportunity, we believe—along with colleagues across the health service—is in clause 33, going further and deeper there in terms of the assessment of need, as well as an assessment or a description of process. Clearly, what legislation cannot do is set out the kinds of behaviours that make that a well-informed and inclusive process. To reassure the Committee, though, what I do see is that the way of working we experienced during the development of this Bill, the way of working we are experiencing with Dr Evans in terms of the process she is leading at the moment—the long-term framework—is inclusive. It is trying to bring different voices in. Difficult decisions may well need to be made about prioritisation, and we understand that, but that is much easier to do and much easier to understand if it is based in that kind of process and behaviour. However, clearly, that is one of the risks.

As I have already said, we have had an increasingly centralised healthcare system over these last few years, and that is also one of the risks. If we stifle the local leadership and local innovation, and if we do not seek that local input in terms of how the development of local services needs to inform, in particular, the long-term planning for workforce, then that is a real risk for the legislation.

[Edward Argar]

Q Thank you. One final question from me, if I may, Mrs Murray. I think it was Dr Mortimer who touched on a couple of points in his comments. One was that the way it is envisaged that this will be implemented would minimise any impact or burden, as it were, on the system, and I think that both witnesses touched on the learnings from the pandemic—the opportunity to build on what was done during that. To what extent, or not, would the witnesses consider that this is the right time to be doing this?

Dr Navina Evans: We in HEE think this is absolutely the right time to be doing this. We are at a moment where we have a lot of learning from what we have been through this last year. We have a real opportunity where many different pieces around innovation and improvement are coming together, and we have learned a lot from our previous experience of delivering the Health and Care Bill. For us, we think that this is absolutely the right moment to be doing this work.

Danny Mortimer: We would agree. NHS Confederation members were clear about the need for this approach before the pandemic, and I think that is even more pressing because of the pandemic. Actually, given the announcements that the Prime Minister is expected to make later today, it reinforces that need to better integrate health and social care, so the timing is very good.

[Edward Argar]

Thank you both. Thank you, Mrs Murray.

[The Chair]

Thank you, Minister. As there are no further questions from Members, I thank the witnesses for their evidence. We will now move on to the next panel.

Examination of Witnesses

Amanda Pritchard and Mark Cubbon gave evidence.

--- Later in debate ---

[The Chair]

Before I call the Minister, I remind Members that there will be a hard stop at 11.25 am. If witnesses could keep their answers as brief as possible, it would be much appreciated.

[Edward Argar]

Q Thank you, Mrs Murray. I will try to rattle through three quick questions. I think this is my first public opportunity to put on record, as the shadow Minister did, my congratulations to you, Amanda, on your appointment.

If I recall correctly, your predecessor, now Lord Stevens, says that about 85% of provisions in the Bill were things that the NHS asked for in its 2019 consultation. Do you recognise that figure, and how would you characterise the approach that has been adopted to the development of the Bill?

Amanda Pritchard: Thank you. I would struggle to give an exact percentage, but the Bill certainly contains widely supported proposals for integrated care. We have been working very closely with our stakeholders, colleagues across the system, you and others to ensure, as far as possible, the same approach to consultation, listening and hearing. You cannot please everybody all the time, but we want to reflect what feels genuinely like a consensus view about what will best help the NHS deliver on all the challenges we have discussed. That is reflected in the Bill, so thank you for that. As it goes through Parliament, we very much want to continue to see that spirit of joint working, consensus building and engagement, so that when it hopefully becomes legislation in April ’22, it lands with all the support that I think it currently has.

[Edward Argar]

Q I will confine myself to one more question, Mrs Murray, to make sure that we do not run up against the time limit. This question has been asked of other witnesses, and I suspect it will be asked of others. To what extent is this the right time to make these changes?

Amanda Pritchard: As I said, I genuinely think that our experience across covid has strengthened the argument for moving to legislation now, because our way of working in the past two years has been characterised by integration and partnership, and that is how the NHS and partners need and want to work—now and as we head into next year, facing that set of challenges that people are so very committed to continuing to tackle together. Yes, Minister, I think this is an important Bill. The integration agenda is not the whole answer, but it is an important component of it, and the sooner it comes, the better.

[Edward Argar]

Q Mark, in the minute or so before Mrs Murray closes the proceedings, is there anything you want to add on those two questions?

Mark Cubbon: All I would say is that collaboration and partnership work is a key feature of our response to covid. It is ever more critical, in the light of the question of how we will approach our recovery. Fantastic working has been enabled locally through necessity; now, we hear from the whole service that we want to build on that. We look forward to the future with that in mind; the Bill allows us to do that.

[The Chair]

As there are no further questions, I thank the witnesses for their evidence. That brings us to the end of our morning sitting. The Committee will meet again at 2 pm in this room to take further evidence.

Ordered,

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

Health and Care Bill (Second sitting)

Edward Argar Excerpts

Committee stage
Tuesday 7th September 2021 Public Bill Committees

[Karin Smyth]

Q I hope that this is in scope, Mr McCabe. I have just come from the Chamber, where the Prime Minister is still on his feet. He talked about integrated care records, but I am not quite sure if we are discussing the same thing. This may not be news to you, Mr Madden, but could you clarify whether we are all talking about the same thing? I appreciate that you were not there to hear the Prime Minister, but is it your understanding that what we are hearing today about social care is the same as the conversation we have been having about integrated care records, personal care records and so on?

Simon Madden: Forgive me, but I will take full advantage of the fact that I was not there and have not seen the statement that the Prime Minister made. A feature of our plans set out in the data strategy—not so much in terms of the Bill itself—is for each integrated care system to have a basic shared care record, so that throughout their whole health and care journey a patient or citizen does not have to do simple things like repeat test results or repeat their prescriptions, and so that their care journey between health and social care, with provisions for safeguarding and safeguarding information, is seamless.

[The Minister for Health (Edward Argar)]

I will ask a couple of questions, if I may, Mr McCabe, and then perhaps the hon. Member for Nottingham North can come back in if we have time. Moving away from what has been explored by colleagues so far on the extremely important protections around data sharing and data use, can you set out how the changes set out in the Bill relate to and will help you deliver the data strategy that you have in place?

Simon Madden: It is important to set out that these provisions alone, while they do much within the Bill, must be seen in the context of that wider data strategy. They support our ambitions, and the integration and collaboration that is described in the Bill will be a huge enabler for the ambitions set out in the strategy itself.

The provisions themselves focus to some extent on tidying things up and providing a degree of clarification. I mentioned the provisions for clarifying NHS Digital powers: currently, there is sometimes confusion around what data NHS Digital can share and in what circumstances it can share it. Sometimes, that leads to problems when data may need to be shared for very good reasons—for justifiable reasons—but NHS Digital is sometimes not convinced that it has the legal power to be able to share the data. This puts beyond doubt its ability to share data appropriately.

Another provision is on information standards. We are making a provision in the Bill to mandate standards for the storage and collection of data. That is important to ensure that data can flow between different IT systems and organisational boundaries in the health and care system. That will then help individual patients and improve health outcomes. We want to ensure that providers of health and care services purchase only technology that adheres to that set of standards, so that we have that interoperability, and those improved outcomes for patients, through that mandation of information standards.

We have also put in clauses around sharing anonymous health and care information, which help to essentially set a duty to share anonymous information when it is legally permitted to do so. One of the lessons that we have learned over the pandemic has been that, although it is perfectly permissible for data to be shared—it is legally permissible to do so—the shift from “can” to “should” has a great impact within the system.

Our invoking of the control of patient information regulations under existing legislation, to enable that sharing of data and to say, “You should share data in these circumstances,” has significantly helped the free flow of data safely and securely within the health system. That has had an impact on patient care. I think that the duty to share anonymous data will help to put on a more permanent footing some of those provisions that we have seen during the pandemic.

[Edward Argar]

Q To what extent would you consider it a fair characterisation that this is, in a sense, evolutionary, and that, actually, to a large extent, the provisions related to data—to go back to what you said—add greater transparency and legal clarity around some things that may have had to happen during the pandemic, and give them a longer-term basis in statute, as debated by this place? Do feel entirely free to disagree with that characterisation, I hasten to add. I am not leading you in any way, but to what extent would you consider that to be a fair reflection of these provisions?

Simon Madden: I think it is a fair reflection, to a certain degree. I think that the thing that we must always be conscious of, particularly in the field of data and technology, is that we see advances but legislation often does not keep up with those advances. It is about ensuring that everyone understands their responsibilities—not just that the public understands the responsibilities of organisations that are safeguarding data, but that those organisations themselves have the right powers to be able to share data safely and securely. I think it is evolutionary in that sense, but it is also about making sure that the provisions in the Bill are keeping pace with the development of technology and how data is used in the real, modern world.

[Alex Norris]

Q I will ask two questions in finishing, if I may, Mr McCabe. The first is a final one on the GPDPR promise. Mr Madden, you said that that is a separate process to the one in part 2 of the Bill—which I completely agree with—but that in the public’s mind, the two are likely to be conflated, and that now would be a good moment to reset the relationship between people and their data. Again, I completely agree with that. Is there any technical reason why we could not run those two processes not as two but as one?

Simon Madden: I should perhaps caveat my previous comments by saying that they very much are, in our mind; it is all about health data. The focal point for us at the moment, which we are working through with Ministers, is the formulation of the final version of the data strategy. Of course, the legislative provisions are within the data strategy. It is very much the case that the publication of that document, I think, is the right moment for that reset where we have more intensified engagement with the public and we really step up the narrative around how health data is used. As one of your colleagues said, the real detail comes in regulations, if there are any regulations around that; and of course there would need to be consultation before the regulations were put in place.

--- Later in debate ---

[Justin Madders]

Q On the Secretary of State’s powers of intervention on reconfigurations, is it your understanding that a local system could agree across the board that particular changes were necessary and actually that it was important for reasons of patient safety that those changes were made but that the Secretary of State could intervene at any time to stop them?

Matthew Taylor: Yes, unfortunately that is our understanding, and we think that it would be a retrograde step. It is not a power that I would want if I were a Secretary of State and I wanted to focus on strategic policy questions. I would not have advised the Secretary of State to want those powers.

Our view would be that we should remove the extension of the Secretary of State’s power entirely, but, failing that, we should put some guard rails on in relation to hearing the views of local health overview and scrutiny committees, getting local clinical advice on what is best and having a public interest test that should be passed. If those guard rails were in place, we could cope with this.

What we do not want is a chilling effect on the capacity of local leaders to make the decisions that they need to make to use their resources effectively. The third element of the triple mandate is the effective use of resources, and that involves making decisions at a whole variety of levels around how you configure services. If you feel you are going to go through that process and potentially engage local populations in difficult conversations, and then at the end of the day a local MP, for whatever reason, is going to kibosh that by appealing to the Secretary of State, why would you embark on the process in the first place? That is why, while we are very supportive of the Bill, as you have heard from both Saffron and me, we do think that the powers of reconfiguration are the Achilles heel. I appeal to you to recognise that that is unnecessary and goes against the spirit of the Bill.

Saffron Cordery: I wholeheartedly support what Matthew says, and it speaks to a point I made earlier about adding to existing structures in a way that really is not necessary. I notice that you have representatives from the Local Government Association as witnesses later on. I am pretty sure that they will have some strong views about what these measures do for the powers of local health overview and scrutiny committees, because they already have the power to refer to the Secretary of State should they need that to happen. The powers that are currently in place are a really effective way of doing it. People getting something past a local health overview and scrutiny committee is a really important hurdle for any service change. It is already well respected, well used and very effective. This is one of those elements that at best is redundant and at worst is going to create a lot of work and a lot of unnecessary tension and friction where we already have challenge.

[Edward Argar]

Q I have just a couple of questions, because a lot of the issues have been explored. My first one is something that we have not touched on yet in our questioning of witnesses. I welcome both your thoughts on the proposals in the Bill to delete and replace section 75 of the 2012 legislation, around procurement, and your reflections on the opportunities or challenges that that presents.

Saffron Cordery: As we see a change in the system, obviously the nature of how we have procured services in the past does have to change. It is obviously a complex area, but one of the things that we really need to look at is the effectiveness of the current contracting regime, which for certain parts of the provider sector in particular is incredibly burdensome. If you sit in a mental health or a community trust, you are subject to a whole host of retendering, which can have a potentially far-reaching impact on your trust’s sustainability or the future operation of key services. For many bits of the system, that will be very important.

The procurement regime is fundamental. It underpins how this will operate. We need to make sure that the elements of fairness are upheld and that it does not disproportionately put a burden on any one part of the system in particular.

[Edward Argar]

Matthew?

Matthew Taylor: I agree with that. It is important to remember that one of the goals of the Bill is to reduce the weight of bureaucracy in the system. If we can reduce the weight of bureaucracy as it applies to procurement, that is only a good thing.

[Edward Argar]

Q My second question—I think this has come through in what both of you have said, but feel free to challenge it when you answer if I have misrepresented what you have said—involves one of the key things I have detected, which is that we must be careful not to forget that no one size fits all in this context. Back in the dim and distant past when I was a councillor, I sat on a primary care trust board as a local authority representative, and I found that joint working could be highly effective, so what is the right balance? You have touched on this in some of your previous answers. Recognising that it is sometimes as much about relationships as about formal structures, what do you think is the right balance between permissive and prescriptive in what we are trying to do here? How do we strike that balance appropriately, and have we struck it appropriately?

Matthew Taylor: Of course, one of the most challenging questions in all parts of central Government is to get that balance right. The one point that I want to make is about the nature of system leadership. If you lead an organisation—I lead an organisation—the parameters of what you do are reasonably well defined and you lead that organisation as best you can, and you can be regulated as an organisation in relation to its objectives. The thing about system leadership is that it involves developing a concrete and specific account of how you want to add value in a particular local circumstance—how is it that, working as a system, you will make a difference?

By looking towards population health and engaging local people, that proposition will vary from place to place. It is important that, when we look at how systems work, we allow them to develop a value proposition that is specific to their local circumstances and their local needs. That is why, for example, we would be very resistant to any kind of Ofsted inspection regime for systems, because systems are not the same as hospitals or as schools; they are very different and their aspirations will be very different.

When you look at the Bill, the reality of central-local relations is that rules are set out in legislation, but then there is the custom and practice of how Departments and other bodies actually work. Sadly and inevitably, the drift of custom and practice tends to be towards centralisation. That is why it is important to avoid things in the Bill that create an opening—this is why we can have our concerns about reconfiguration—which can get ever wider and thus undermine the key principles that lie at the heart of the Bill. So we are happy with the intentions of the Bill, but we are worried that there are certain elements of it and certain elements that might be involved in the operationalising of it that could undermine its intentions.

[Edward Argar]

Thank you. Saffron?

Saffron Cordery: I go back to a point that I made earlier in this session, which is that this balance between permissiveness and prescriptiveness is critical. The August 2019 agreement, when all the stakeholders came together to look at how we might legislate for an integrated care system that got that balance right, I think is there. You have to remember that what sits around a set of proposals will have a massive impact on it, so the Secretary of State’s powers as we have seen them, and the operating environment overall, will have an impact on how these proposals will be implemented, and how effectively they will be implemented.

We cannot forget covid in this. We cannot forget the extreme financial pressures that we are seeing. We cannot forget demand. We cannot forget an incredibly tired workforce. That is not going to change any time soon; that is going to be for the next few years, so we are implementing something against that backdrop. But if we go back to the slightly lighter touch of the August 2019 proposals, we will probably get to a place that would hit the spot, as it were. I reiterate that we support collaboration in systems and the direction of travel.

[The Chair]

Given the time, we will leave it there. I thank our witnesses, Saffron Cordery and Matthew Taylor.

Examination of Witnesses

Ian Trenholm and Keith Conradi gave evidence.

--- Later in debate ---

[The Chair]

Do have anything further you want to add? No. Minister.

[Edward Argar]

Q Thank you both for your evidence. I have one question for Mr Trenholm, two for Mr Conradi and then one for both of you, if I may, time permitting, Mr McCabe.

You will have heard in the evidence just before, Mr Trenholm, the comments by Matthew Taylor about the difference between assessing a system versus a provision. How do you see how the CQC would square that circle, because he highlighted the very different approaches and his reservations about some of that? How do you see that issue being resolved, or what would you like to see in that space?

Ian Trenholm: If I compare one large hospital with another large hospital as a comparison in terms of what we do now, one would argue that they are quite different enterprises, differently run and serving different communities. There are some common themes, but equally there are some differences. We built a methodology that was able to be applied to both of those very separate entities and to provide a common rating at the end of it.

I would see a version of that at a system level: there would be things that we would want to see that would be common and necessary— decent quality governance, for example—as well as a lot of things that many of you were raising as questions and concerns. But equally we want to see some evidence that the partnership board was cognisant of its local community and it was genuinely delivering a suite of services that its local community genuinely wanted and that was consistent with the needs of that community.

Over the next 18 months or so, we will be building our methodology in collaboration with the people who are also building the ICS boards and frameworks. I am hopeful that we can get to a point where we have a methodology that gives you, as parliamentarians, and local people the assurance that things are working well locally. However, it is not just about what is not working, but about looking for really good practice and looking to accelerate that. Previous people have made the point that doing things differently often leads to good practice and innovation, so how can we help accelerate that innovation through the work that we do. That is broadly how I see it working.

[Edward Argar]

Q Thank you. Mr Conradi, the first question is probably a relatively quick and simple one, but I will not prejudge your response. Given that the HSSIB aspects have been in preparation for quite some time—I am alluding to the work that Dr Whitford and other colleagues did some time ago—what would your view be on the appropriateness of getting this done and the timeliness of bringing these measures forward? I am asking a number of witnesses whether this is the right time to be doing what we are proposing. In the case of HSSIB, is it the right time?

Keith Conradi: Absolutely.

[Edward Argar]

Q I suspected that might be the answer, but I did not want to prejudge. My second question goes to a slightly knottier area, and one that you have already alluded to. I think you have said—by all means correct me if at any point I misinterpret what you have said—that ideally you would prefer the safe space to be as absolute as possible, given the nature of what you are seeking to do. There is, as we recognise in the Bill, a challenge about the specific statutory rights of coroners as members of the judiciary; I note what you have said about that. Would it be fair to say, first, that notwithstanding that, you would not want that safe space to be eroded further for other groups? I think you have been clear that you would prefer it not to be eroded at all, but you would not want its erosion to go further. The second element is this. Although you would prefer it to be preserved intact, do you think that if there is going to be that exception in the case of coroners, for example, the High Court is the right level of arbitration in something like that? I know you suggested that it might be.

Keith Conradi: I certainly think so. My previous experience in aviation is that we had a similar space, and only the High Court could overturn or order disclosure. It was used on a handful of occasions, and it produced very interesting debate. The balancing test—testing whether the benefits of the disclosure outweighed the adverse reaction that there might be to future investigations—was well argued in each of the cases. I think that is the appropriate place to do it.

[Edward Argar]

Q Thank you. My final question is to both of you. Your organisations are separate but key elements focused on patient safety and the safety of outcomes for individual patients. How do you see the work of your two organisations fitting together and complementing each other, while recognising that they are both very distinct?

Ian Trenholm: We do work at the moment in terms of registering and regulating individual providers, and we do that right across the country, so we have a picture of health and social care right across England. Part of the Bill will give us enhanced powers looking at the way in which individual systems and individual ICSs work. Our view is, if you like, a broad and moderately shallow view, whereas I think Keith’s team do more in the way of specific investigations. I am sure Keith can talk to that.

Keith Conradi: I would characterise the relationship as a healthy tension. We make very few recommendations to the CQC, but the vast majority of recommendations we make will, we hope, have an impact on the work that is going on across the system. The ideal people to have a look and see whether that is having an effect will be the CQC, from time to time, as it comes across things that have changed as a result of what we have done. I think the relationship works very well, in that respect.

[Edward Argar]

Thank you very much.

[The Chair]

Mary, did I see you trying to come in with another point?

--- Later in debate ---

[The Chair]

I am going to go to the Minister now because of time.

[Edward Argar]

Q Good afternoon, Councillor and Professor. I have two or three questions; we will see how we do on time. I will get through as many as I can, and if I do not get through them all, I do not get through them all.

Back in the day, I served as a councillor and cabinet member for public health, adult social care and health, and worked very closely with my then local PCT, which probably shows you my vintage. One of the things that I found was that the structures were important, but the relationships and how it worked on the ground, and the ability to be flexible and build up the trust between the two organisations was more effective in getting better outcomes. We have heard from previous witnesses about the importance of local flexibility to adapt to local work arrangements and conditions. Do you think we are striking the right balance between being permissive in allowing that flexibility and not being too prescriptive, or do we need to go a little more in a different direction?

Professor Maggie Rae: In my experience, with the way that the ICS has been set up, we very much hope that we will not start from scratch again, because those organisations have been working on this agenda for quite some time. I think there would be cries of horror if we said, “We are going to throw out the work you’ve already done.” Many of them have been on this journey for a while, and the leaders in those systems have indeed made some good progress. I think it is a delicate balance.

I will not repeat the points I have already made about strengthening the links to public health and making sure that is not forgotten. We will have 600 public health people going back into the NHS, but we very specifically have not changed the legislation that put directors of public health in England into local government. Of course, directors of public health in the three devolved nations are currently in the NHS. If you do not give people flexibility, you run the risk of your system not working. If we ensure that the framework and assurance process are right, the legislation takes us part of the way, but we want some checks and balances in relation to those freedoms, to make sure that there is a basic minimum standard across the country. If you have an ICS that is not working with its local authority, that is not a level where the ICS should be signed off. The ICS should be asked to go and demonstrate the commitment that the flexibility has allowed them. There is a statement in the framework that was released a couple of months ago, which said that the directors of public health will have an official role on both boards. I found that a pretty good statement to have, but it is only a statement that is effective if there is some assurance that that can be delivered on, and there need to be some checks and balances in order to make sure that those kinds of things are not ignored. Because of the variety—some ICSs cater for 2 million or 3 million people, and some for 1 million—you need the flexibility. If you want them to own and deal with the problems of their population, having a little bit of flexibility is the right approach, provided that the minimum standards are met across the whole country.

[Edward Argar]

Q Thank you. Councillor Jamieson, I have seen that councils can often be at the forefront of leading innovation and driving change in a dynamic way. From the LGA’s perspective, do you think that we are striking the right balance between permissive and prescriptive, and is the approach to the ICP board and ICB an appropriate balance?

Cllr James Jamieson: From a legislative perspective, largely yes. I reiterate the point that I have made a couple of times already: the statutory and non-statutory guidelines will be critical in this area. We need to get them right and ensure that there is real embedded consultation. There are a couple of things that we are concerned about. I have not mentioned them yet, so I will use this opportunity to do so. One is the increase in the powers of the Secretary of State to call in NHS reconfiguration proposals and so forth, and the risk that that would undermine the existing local government influence, overview and scrutiny, so we would ask for a change to schedule 6 of the Bill in order to ensure that there is consultation at a local level before those powers are enacted.

The second area—it is probably not what you are asking about, but it is important that we raise it—is assurance around social care. It is good to have assurance around social care, but we need to make sure that that assurance is proportionate and is in context. Bearing in mind how stretched social care is from a financial perspective, it would be unreasonable to expect social care to do more than its budget allows it to do. In the same way, social care is also very dependent on the performance of the NHS, community care and so forth. We have some concerns around that assurance framework, which needs some work.

[Edward Argar]

Thank you, both. Mr McCabe, I am conscious of time and our programme motion, so I will pause there.

[The Chair]

Thank you, Minister. I thank both our witnesses for their evidence.

Examination of Witnesses

Eluned Morgan, Lyn Summers and Mari Williams gave evidence.

--- Later in debate ---

[Alex Norris]

Q That is helpful, thanks. To change tack slightly, in 2016 the Welsh Government brought in legislation around safe staffing levels. Are you able to talk us through that and say, five years on, what impact that has had?

Eluned Morgan: This is in relation to nursing. We have a law on safe staffing levels in nursing. Not only has it been implemented, but it has been extended since we brought in that Bill. It is something that the Royal College of Nursing is hugely appreciative of, and something that we are keeping an eye on. It has made a difference to patient safety, and we in the Welsh Government take it very seriously.

[Edward Argar]

Q Good afternoon, Minister and colleagues. Thank you for your evidence and answers so far. By my reckoning, of the nine issues on which we had a discussion, we reached an agreement on seven. I think there are two outstanding, which are the ones you have highlighted in your evidence. I owe you an answer to your letter, but I think we are meeting shortly to further discuss that.

I want to pick up on something that colleagues have touched on and which you have highlighted around the model of integration in Wales—the unitary model, for want of a better way of putting it. I acknowledge that you said it was early days, but I would like to get a sense of how you feel that model is delivering a national system but allowing local flexibility, and of the extent to which it is delivering, even in its early days, improved health outcomes for patients in Wales. As we look at ICSs and closer working between local authorities and the NHS in England, it may be instructive for us to learn from your experience, even if it is not a direct parallel, and from what you are seeing, even in these early days.

Eluned Morgan: We had a parliamentary review that looked at our NHS and care system, and went into a lot of detail about what we could change. A lot of it was about the need to integrate—[Inaudible.] What we have done as a result is take an interim step towards better integration. We not only set up the legislative framework for that, but put significant funding into driving these health and care systems to work together. We had an integrated care fund and a transformation fund. We found that both the health service and the care service really liked the new approach. They really have engaged. We have kind of allowed a thousand flowers to bloom here, and there have been some really innovative ideas and work. How do we get people out of hospital quicker? How do we drive that change? There have been some great examples.

What we are still struggling with, if I am honest, is that we are still finding difficulty getting both the health service and the care service to understand that what they have changed and what works well now needs to be mainstreamed. There cannot be additional funding forever. The purpose of that additional funding was to give the confidence to do it in the mainstream. We are finding that they have pocketed that money, saying, “This is great. Can we have more, please?” We have tried to make it clear to them that that was never the idea. The idea was for them to have that transformation funding to drive change.

That is our next challenge, and that is what we are working on now, but there are ways of doing that. Clearly, this is a difficult time to be doing it, but some health boards are frankly being driven into closer working relationships, because there are so many examples of delayed transfer of care given the infrastructure at the local government level. Do not forget that in Wales we have not seen anything like the cuts that have happened in England, but even we are feeling the pressure in quite a significant way, and we are having some real issues in relation to recruitment to the care workforce in particular. That is the biggest challenge for us at the moment.

[Edward Argar]

Q That is really helpful, thank you. As ever, I am grateful for your candour, because that will help us to learn from your experience. I am always frank with colleagues about the fact that we will look around to see whether we can learn from Cardiff, Edinburgh or Belfast. That is what we should be in the business of doing. You mentioned using transformation funding to allow local flowers to bloom. That goes to the heart of something we have discussed in a number of sessions today. To what extent, in how you are approaching this greater integration or joint working, have you adopted either a permissive or a prescriptive approach? How have you sought to balance those two ways of doing things to get the best outcome?

Eluned Morgan: It has been quite interesting. With care, for example, we have found that a lot of competition was going, such as between the independent care providers and the local authority—they were poaching from each other. All of that was damaging to the public purse and to the provision that we could give. Now we are in the process of developing an all-Wales framework within which people who want to provide care in Wales will work. That is what we are working on—a new legislative framework that will provide the infrastructure and give the minimal standards that they will have to meet. It is also making sure that we are driving quality through the system.

[Edward Argar]

Q I am conscious of time, but I have a final question that refers back to my first one. Do you have any evidence, whether anecdotal or that you will not share with the Committee, on how the approach is improving or changing health outcomes for NHS patients in Wales, quantitatively or qualitatively? What benefits are you seeing? Is there any evidence behind that? That is something we have explored with other witnesses—how ICSs will seek to do that—but given that you have started down this road already, is there anything you can share?

Eluned Morgan: What is difficult is that we started this process pre-pandemic but, clearly, with the pandemic we are in a very different situation. It is difficult to say what the model would look like in normal times, because we have had 18 months of something very different. It is hard for us to assess that evidence in the light of our circumstances at the moment, if I am honest.

[Edward Argar]

That is fair. Thank you, Minister.

[The Chair]

No one else? As there are no further questions, I thank you, Minister Morgan, and your officials for the evidence that you have provided today.

Eluned Morgan: Diolch yn fawr.

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

Integrated Care Systems

Edward Argar Excerpts

Thursday 22nd July 2021 Written Statements

[The Minister for Health (Edward Argar)]

Earlier this year, Ministers asked NHS England to set out options for boundary alignment in integrated care systems in specific geographies where upper-tier local authorities currently have to work across more than one ICS footprint and to assess the impact of changes to deliver alignment in each case. Over the last six months NHS England has worked with stakeholders to develop advice and analysis for each of the affected areas to inform the final decision.

This work has now concluded, with advice provided to the Secretary of State for Health and Social Care. This statement sets out the final decision that has been taken for the areas in scope of the review:

East of England

Frimley

Bassetlaw

Glossop

West Birmingham

North Northamptonshire

This work has been underpinned by the principle that coterminous boundaries deliver clear benefits in integration between local authorities and NHS organisations. As approaches to integrated care develop it is crucial that we have a system that helps support closer working both across NHS organisations and between the NHS and local government.

On the ground, coterminous boundaries can also improve joined-up decision making on delivery of services for patients. Improved alignment can allow areas to build joint care models around a wide variety of services including children’s and adult social care services, public health, as well as community and mental health services which are often also aligned along local authority footprints.

There has therefore been a strong presumption of moving towards coterminosity, save for in exceptional circumstances where there were strong reasons for not doing so.

NHS England regional teams have conducted robust engagement activity with local stakeholder organisations to develop analysis of the risks, mitigations and benefits for any options for coterminous boundaries in the affected areas. This engagement has included roundtables with local NHS organisations, including the ICS’s themselves as well as providers, commissioners and local authorities.

The Department of Health and Social Care has engaged at ministerial level with parliamentarians as well as national organisations such as NHS Providers and the Local Government Association to ensure their views were reflected in the final advice to the Secretary of State and they had an opportunity to feed into the development of this work.

The Secretary of State for Health and Social Care’s decision process has involved careful consideration of a wide range of issues, perspectives and interests and a careful weighing up of risks and benefits, outlined in the analysis provided by NHS England for each area as well as having regard to his legal duties.

These have been considered on an case-by-case basis for each area and where NHS England has made a recommendation based on broad (not universal) local consensus, including a recommendation to retain the status quo, the Secretary of State has listened and has accepted these recommendations. There was not a broad local consensus for three of the areas within this review and as such no recommendations were made by NHS England. In these areas a balanced judgement was taken, weighing up the risks and benefits of a change in boundaries and having regard to his legal duties by the Secretary of State.

Following this review, the Secretary of State has concluded:

East of England—this area is considered an appropriate exemption to the principle of coterminosity. No changes will be made to the existing boundaries.

Frimley—this area is considered an appropriate exemption from the principle of coterminosity. No changes will be made to existing boundaries.

Glossop—The decision has been taken to move the area of Glossop from Greater Manchester ICS into Derbyshire ICS.

Bassetlaw—The decision has been taken to move the area of Bassetlaw from South Yorkshire and Bassetlaw ICS into Nottingham and Nottinghamshire ICS thus delivering coterminous boundaries for the area.

West Birmingham—The decision has been taken to move west Birmingham from the Black Country and West Birmingham ICS into Birmingham and Solihull ICS thus delivering coterminous boundaries for the area.

North Northamptonshire—The decision has been taken to move the Lakeside Healthcare GP practice into Northamptonshire ICS and retain the Wansford and Kings Cliffe GP practice in Cambridgeshire and Peterborough ICS. This moves the region much closer to coterminous boundaries and reflects specific local considerations.

Local areas may still wish to keep under review how their boundaries are working in the light of any new legislative framework. Therefore, this decision does not preclude the important work many systems undertake naturally to ensure they have a system and boundaries that best suit local needs. We have already heard such requests from local stakeholders around Cheshire and Merseyside ICS, as such the Secretary of State has also announced his intention to review this system. The Secretary of State also intends to review the areas of Cumbria and North Yorkshire, as we are now aware, they will remain non-coterminous following the conclusion of the Ministry of Housing, Communities and Local Government’s unitarisation process. These reviews will take place in two years, following the implementation, subject to parliamentary passage, of the Health and Care Bill.

Full details of these decisions and the decision process will be published on the Department of Health and Social Care section on the gov.uk website shortly.

[HCWS248]

Draft Medical Devices (Northern Ireland Protocol) Regulations 2021

Edward Argar Excerpts

Thursday 15th July 2021 General Committees

[The Chair]

Before we begin, I remind hon. Members to observe social distancing and sit only in places that are clearly marked—I think this is the last time we are saying this; it will not apply from Monday. I also remind Members that Mr Speaker has stated that masks should be worn in Committee. That does not apply to me because I might have to say something at any second. Our colleagues in Hansard would be most appreciative if you emailed your speeches to hansardnotes@ parliament.uk. I call the Minister to move the motion.

[The Minister for Health (Edward Argar)]

I beg to move,

That the Committee has considered the draft Medical Devices (Northern Ireland Protocol) Regulations 2021.

It is a pleasure to serve under your chairmanship, Dr Huq.

Today we are debating an instrument that is necessary to maintain the regulatory landscape for medical devices in Northern Ireland following a change in European Union law. It reflects the recent application of Regulation (EU) 2017/745 on medical devices in Northern Ireland, which applies to all general medical devices, but not to in vitro diagnostic medical devices. For simplicity, I will hereafter refer to the EU medical devices regulation. I draw the Committee’s attention to the fact that this instrument does not itself cause the EU medical devices regulation to apply within Northern Ireland. That legislation took automatic effect in Northern Ireland on 26 May this year under the terms of the Northern Ireland protocol.

Through this instrument, the Government deliver their commitment to the pragmatic implementation of the protocol by introducing provisions that minimise the impact of the EU medical devices regulation on economic operators and the public in Northern Ireland. The EU medical devices regulation contains some areas where states have the discretion to make their own policy choices. This instrument therefore legislates in those policy areas, and where possible seeks to align the position in Northern Ireland with that in Great Britain. The Medical Devices Regulations 2002—hereafter referred to as the 2002 regulations—will continue to be the relevant regulations for in vitro diagnostics devices in Northern Ireland. They will operate alongside the EU medical devices regulation itself and this instrument on the regulation of general medical devices.

The instrument achieves the Government’s commitment to align Northern Ireland with Great Britain where permitted in four areas. First, it implements national adjustments for Northern Ireland in areas where the EU medical devices regulation grants member states the ability to make national policy decisions. This has been done in a way that will align with policies in place in Great Britain. Secondly, it sets out the fee structures that keep fees charged by the Government aligned with those applied in Great Britain. Thirdly, the instrument sets out the enforcement regime for activity and violations under the EU medical devices regulation in Northern Ireland. Finally, it makes an amendment to existing regulations so that they take account of the application of the EU medical devices regulation in Northern Ireland.

Several aspects of this instrument are, as will become apparent, technical. I therefore might not be able to address all the elements in detail in the time that we have available. I will, however, provide the Committee with details on the most important provisions. I will first set out the provisions that the instrument makes to change default positions under the EU medical devices regulation where permitted.

Re-manufacturing single-use devices, which the EU refers to as reprocessing, is currently permitted in the UK as long as the re-manufacturer adheres to strict requirements. The EU medical devices regulation does not permit re-manufacturing, but grants member states the ability to make national allowances, which this instrument also does for Northern Ireland. That means that the re-manufacturing of single-use devices can continue to take place in Northern Ireland as it does in Great Britain as long as all requirements of the EU medical devices regulation are adhered to.

The instrument also introduces provisions so that the Medicines and Healthcare Products Regulatory Agency can continue to require the registration of custom-made devices. That means that a range of devices such as, for example, dental appliances or orthopaedic moulds must be registered before being placed on the Northern Ireland market, as is currently the case in Great Britain.

The instrument also ensures continued alignment between Great Britain and Northern Ireland so that the safety of participants continues to be protected in clinical investigations. It does so by maintaining the MHRA’s ability to authorise clinical investigations for all risk classes of medical devices before they can commence. It also upholds the requirement for custom-made-device clinical investigations to be subject to MHRA assessment.

As well as these provisions, which amend the default positions of the EU medical device regulation where permitted, this instrument also sets out the fees that the MHRA may charge for activity under the EU medical device regulation in Northern Ireland to continue covering the costs associated with certain aspects of the regulation of medical devices. All fees outlined in this instrument are identical to those charged for similar services in Great Britain under the 2002 regulations, thereby maintaining alignment.

The Government are maintaining identical fees as part of our commitment to ensure that, where possible, there are no disadvantages to economic operators in Northern Ireland as a result of the protocol. To that end, no new fees are introduced in this instrument for any new requirements under the EU medical device regulation.

The enforcement provisions introduced in this instrument provide the Secretary of State with enforcement powers to ensure that patient safety is prioritised and high standards are maintained for the people of Northern Ireland. It does so by creating a specific offence that relates to breaches of certain provisions of this instrument and of the EU medical devices regulation; by amending the Medicines and Medical Devices Act 2021 and the Consumer Rights Act 2015; and by granting the MHRA and district councils in Northern Ireland inspection powers and powers to serve enforcement notices for breaches of the EU medical device regulation within Northern Ireland. These powers allow the MHRA to respond to concerns and to constantly deliver improvements to patient safety.

Finally, the instrument includes technical amendments to other legislation, including the 2002 regulations, to reflect the application of the EU medical device regulation within Northern Ireland. In doing so, it ensures that the regulatory landscape operates effectively in Northern Ireland.

I should put on the record that I am grateful for the continued collaborative approach of officials in the Northern Ireland Executive, who have been kept informed of and engaged with the progress of this instrument. I also inform the House that, due to the very technical nature of this instrument, it has not met the threshold for an impact assessment and therefore one is not provided.

By introducing this instrument we are upholding the Government’s commitment to minimise the impact of the Northern Ireland protocol on the activities of the public and economic operators in Northern Ireland. The pandemic has shown that public health considerations are more important than ever, and by introducing this instrument we are taking steps to ensure that the UK’s exceptional standards of safety continue to be maintained within Northern Ireland.

I commend the instrument to the Committee.

--- Later in debate ---

[Edward Argar]

As ever, I am grateful to the shadow Minister—not only for adopting a typically sensible and pragmatic approach to these issues, but for his kind, if perhaps slightly inaccurate words, about my greying hair and my ageing.

The regulations are particularly about allowing the Government to meet their commitment to implement the Northern Ireland protocol, and doing so in a pragmatic way to minimise the impact on the activities of the public and, indeed, operators in Northern Ireland. We believe they do this while—quite rightly, as the hon. Gentleman said—maintaining the highest standards of patient safety for the people of Northern Ireland, as we would expect right across the United Kingdom.

One of the shadow Minister’s key themes was regulatory divergence and differences. As a Government, we are committed to adopting a pragmatic approach to regulatory divergence, seeking to minimise impacts wherever possible. He will have seen, from what I said just now, that the changes contained in this instrument are essential to delivering on that by providing, where possible, consistency and continuity between regulations in Northern Ireland and Great Britain, where of course we are not constrained by the EU medical devices regulation.

The shadow Minister raised a specific point about the scrutiny of CE and UK(NI) marks. As an experienced Member of Parliament, he will know that there will be many opportunities for the Opposition to table debates on these issues, either in the main Chamber or in Westminster Hall. If they wished to do so, Ministers—probably me—would be delighted to continue our touring double act on issues relating to the implementation of the trade and co-operation agreement and the Northern Ireland protocol.

The shadow Minister also talked about conversations and engagement with the Northern Ireland Executive, industry and others. That engagement continues on a wide range of topics relating to the Northern Ireland protocol and, more broadly, the implementation of the TCA, including continuity of supply and how industry is finding the implementation of the protocol. Not only have fora been hosted within the Department across the broad range of industry suppliers and the bodies representing them, at which we discuss these issues and seek out their views, but in the case of Northern Ireland and the Northern Ireland Executive, as I mentioned, we are very grateful for the collaborative working at an official level on these regulations and on other aspects of the implementation of the protocol. I have regular—at the moment, almost monthly—virtual meetings with my opposite number, Robin Swann, the Minister of Health in Northern Ireland. We discuss a range of topics, and as one would expect, the implementation of the protocol and measures such as these are among them so that we ensure as smooth an implementation and a result for the people of Northern Ireland as possible.

The shadow Minister mentioned the Northern Ireland protocol more broadly, and his views on the Government’s approach to it. It has always been the case throughout history that once international treaties and agreements are reached, tweaks are made to ensure they can be practically implemented on the ground. That is nothing new. It is true of treaties throughout history, and that is what we continue to work with our colleagues in Northern Ireland and the Commission to address.

Turning briefly to possible areas of regulatory divergence—I know this area has interested the shadow Minister in other debates on regulations—as I said, the instrument generally retains all the requirements of the directives it repealed, and indeed adds some additional ones to ensure consistency with GB. Those include additional rules for the designation of notified bodies, additional control and monitoring requirements for competent authorities, and additional clarifications of the roles of different economic operators. The EU medical devices regulation reclassifies some devices and has a wider scope than the directives. That includes devices for sterilising other medical devices and certain devices with no evident intended medical purpose, which is annex XVI of that regulation. A new unique device identification system is also introduced to enhance traceability and post-market activities related to safety. Additional requirements are also introduced for the publication of information on devices and clinical and performance studies relating to their conformity, and the new European database for medical devices and in vitro diagnostic medical devices—which I think the shadow Minister mentioned, and which I will come on to in a second. EUDAMED is also introduced to make data available in increased quantity and quality.

The UK will shortly consult on the future of the Great Britain medical devices regulations, which will benefit patient safety and access. That work on the future GB regulatory regime will explore any risks around regulatory divergence between GB and NI in that context. I hope that addresses the shadow Minister’s concerns, but I can reassure him that there will be opportunities for this issue to be debated and discussed—more broadly in the House, but probably in Committees such as this—when we get to that point.

I hope I have dealt with at least the majority of the shadow Minister’s points, but if there are any others he wishes to raise, he knows that he is always welcome to write to me. With that, I commend the regulations to the Committee.

Question put and agreed to.

Health and Care Bill

Edward Argar Excerpts

2nd reading
Wednesday 14th July 2021 Commons Chamber

[The Minister for Health (Edward Argar)]

Before winding up this important debate, I would like to put on the record, as I always do and as I know the shadow Minister does, our gratitude to all the staff in the NHS, social care and local government, and other key workers, for everything they have done in recent months. This Bill is evolution, not revolution. It supports improvements already under way in our NHS and it builds on the recommendations of the NHS’s own long-term plan, laying the foundations for our recovery from this pandemic. This Bill is backed by not only the NHS, but so many others working across health and care. A joint statement from the NHS Confederation, NHS Providers and the Local Government Association reads:

“we believe that the direction of travel set by the bill is the right one.”

It notes that working in partnership at a local level is “the only way” we can address the challenges of our time. The chief executive of Age UK has said that ICSs are to be embraced and made as effective and inclusive as they can be, and the King’s Fund is calling for us to press ahead. The list goes on; the NHS wants us to press ahead, and in the words of Lord Stevens, “The overwhelming majority of these proposals are changes the health service have asked for.” So it is vital that we in this House do right by them and by patients at this critical juncture. It is the right time for this Bill. We legislate, Opposition Members obfuscate. I remind the shadow Secretary of State of his 2017 manifesto, which stated:

“We will reinstate the powers of the Secretary of State for Health to have overall responsibility for the NHS.”

With this Bill, we put increased accountability for the Secretary of State at the heart of this, yet now the shadow Secretary of State no longer seems to agree with himself and characterises his own proposals as “meddling”. I know that he is dextrous in his politics and in his policy position, which is probably why he has survived under multiple Leaders of the Opposition, but this is stretching it a bit.

We have sought, in getting to this point, to work on a collaborative basis at every stage, and hon. Members can be reassured that we will continue to adopt that approach in the weeks ahead as we proceed with this Bill, when we hope it goes into Committee. My right hon. Friend the Secretary of State set out in his opening remarks his willingness to listen. In particular, he highlighted that in the case of ICS boundaries no decision has yet been made. As he set out, we are determined to embrace innovative potential wherever we find it. That is quite different from many of the accusations we have heard here today. I know it is tempting for some—even when they know better, and they do—to claim that it is the beginning of the end for public provision. It is not and they know it. They know it is scaremongering rather than reality. They know that there has always been an element of private provision in healthcare services in this country, and they should know that because, as the Nuffield Trust said in 2019:

“The…evidence suggests the increase”

in private provision

“originally began under Labour governments before 2010”.

The shadow Secretary of State should certainly know that because he was a special adviser in the Treasury and in No. 10 at that time.

With regard to the implementation of the Bill, the NHS itself wants, subject to legislation, to move at pace to implement statutory arrangements for ICSs by April 2022. That is why NHS England is beginning preparatory work, including publishing an ICS design framework. Further work, including on integrated care board design and consideration of appointments and staff from CCGs will take place, after Second Reading, of course; this is all subject to the passage of the Bill.

Let me turn to some of the specific points raised by hon. and right hon. Members. The hon. Member for York Central (Rachael Maskell) asked about “Agenda for Change”. I can reassure her that it is not the intention that ICBs depart from “Agenda for Change”. The Bill’s drafting and wording is in line with existing arrangements for other NHS bodies with regard to “Agenda for Change” and translates it into this context. However, I am always happy to discuss that with her further if she wishes. Her suggestion that this was conceived, as she put it, in a bunker is quite simply not the case. Indeed, all the stakeholders, including the NHS, have said that this is one of the most collaborative pieces of legislation development they have seen.

Turning to the workforce, as my hon. Friend the Member for Winchester (Steve Brine) said, we cannot legislate to address workforce challenges but we can and we will look very carefully at the recommendations of the Select Committee and of my right hon. Friend the Member for South West Surrey (Jeremy Hunt).

While we do not always agree on everything, the hon. Member for Twickenham (Munira Wilson) made sensible points, although I would slightly tease her that she argued against the principle of the Secretary of State taking powers in reconfiguration and shortly afterwards her hon. Friend, the hon. Member for Westmorland and Lonsdale (Tim Farron), intervened on him asking him to do exactly that.

[Munira Wilson]

I did point that out.

[Edward Argar]

She did.

In response to the hon. Member for Central Ayrshire (Dr Whitford), I am again grateful for her comments and happy to accept her kind invitation to join her on a visit to Scotland.

The right hon. Member for North Durham (Mr Jones) made a very important point. In doing so, he rightly paid tribute to the work in this space done by my hon. Friend the Member for Sevenoaks (Laura Trott) with her recent private Member’s Bill. As the Secretary of State said, either he, I or the relevant Minister will be happy to meet him to discuss it further. My hon. Friend the Member for Meriden (Saqib Bhatti) was right to talk about the need for local flexibility. That is what we are seeking to do.

The hon. Member for Eltham (Clive Efford) asked more broadly about public spending constraints after 2010. He is brave, perhaps, to mention that. I recall the legacy of the previous Labour Government, which the right hon. Member for Birmingham, Hodge Hill (Liam Byrne) summed up pretty effectively in saying,

“I’m afraid there is no money.”

On social care, which a number of hon. and right hon. Members mentioned, we will take no lessons from Labour. In 13 years, after two Green Papers, a royal commission and apparently making it a priority at the spending review of 2007, the net result was absolutely nothing—inaction throughout. We are committed to bringing forward proposals this year. Labour talks; we will act.

The NHS is the finest health service in the world. We knew that before the pandemic, and the last year and a half have only reinforced that. It is our collective duty to strengthen our health and care system for our times. I was shocked, although probably not surprised, that the Opposition recklessly and opportunistically intend to oppose the Bill—a Bill, as we have heard, that the NHS has asked for—once again putting political point scoring ahead of NHS and patient needs. For our part, we are determined to support our NHS, as this Bill does, to create an NHS that is fit for the future and to renew the gift left by generations before us and pass it on stronger to future generations. We are the party of the NHS and we are determined to give it what it needs, what it has asked for and what it deserves. I encourage hon. Members to reject the Opposition amendment, and I commend the Bill to the House.

[Mr Deputy Speaker (Mr Nigel Evans)]

I apologise to the 30 Members who did not get to speak in this important debate, some of whom are currently in the Chamber.

Question put, That the amendment be made.

Oral Answers to Questions

Edward Argar Excerpts

Tuesday 13th July 2021 Commons Chamber

[Tom Randall (Gedling) (Con)]

What steps he is taking to improve the infrastructure of the NHS estate.

[The Minister for Health (Edward Argar)]

In our manifesto, we committed to building 40 new hospitals by 2030 and to upgrading another 20 hospitals. We are delivering on this commitment, and we now have plans to build 48 new hospitals this decade. We are also delivering improvements across the country to hospital maintenance, eradicating mental health dormitories and improving A&E capacity. Finally, the Department has received a £9.4 billion capital settlement for 2021-22, including the first year of a £5.4 billion multi-year commitment until 2024-25 for new hospitals and hospital upgrades, and £4.2 billion for NHS trusts’ operational capital.

[Robbie Moore]

Some 83% of the Airedale hospital in my constituency is built from aerated concrete, with the building containing 50,000 aerated concrete panels in its construction, which is five times more than any other hospital in the UK. This building material is known for its structural deficiencies, so can my hon. Friend assure me that when his Department considers new infrastructure projects, schemes with the highest risk profile, such as the Airedale hospital, will be an absolute priority?

[Edward Argar]

My hon. Friend is a doughty campaigner in this House on behalf of his local hospital at Airedale, going the extra mile, I gather from the Keighley News, by committing to run 100k in 10 weeks to raise funds for, among other things, the Friends of Airedale Hospital—I hope, if he has not finished that yet, it is going well.

To my hon. Friend’s substantive point, he raises an important issue. Airedale has been allocated capital investment in the millions for the 2021-22 financial year from a funding budget that is ring-fenced for RAAC—reinforced autoclaved aerated concrete—plank remediation, but I can reassure him that, as we look to set the criteria for the next eight hospitals, safety considerations are highly likely to be one of the key considerations.

[Philip Dunne [V]]

The Minister will be aware that, in March 2018, Shrewsbury and Telford Hospital NHS Trust was allocated over £300 million to undertake a radical transformation of its acute hospitals at Shrewsbury and Telford. Since then, the trust’s management have been engaged in finalising the strategic business case, but as a consequence of changes to the Green Book and clinical standards the cost will have increased. Will the Minister commit to meet with Shropshire and Telford MPs once the business case is complete to help to ensure that the project can still be delivered?

[Edward Argar]

NHS E&I and the Department of Health and Social Care wrote to the Shrewsbury and Telford Hospital NHS Trust on 19 November last year confirming we remain committed to supporting the scheme. This letter confirmed the allocation remains at £312 million at this time, and of course my right hon. Friend will recall that I committed to approving the request in principle for £6 million of early funding to continue to develop the scheme. It is an important scheme, we want to see it proceed and I am very happy to meet him and fellow Shropshire colleagues.

[Tom Randall (Gedling) (Con)]

In my role as chair of the all-party group for axial spondyloarthritis I have heard from many about the importance of hydrotherapy pools in supporting those living with the condition, but there has been a concern that the reopening of these pools following the pandemic has been jeopardised by space within hospitals being allocated to other functions and a general low level of prioritisation. Does my hon. Friend agree that it is vital that we have robust plans in place to reopen as many hydrotherapy pools as possible, and will he consider meeting me to discuss this matter in further detail?

[Edward Argar]

I pay tribute to my hon. Friend and the all-party group for their work. He raises an important point: the challenges posed by infection control and the impact of the pandemic on the operation of hospitals. That has had an impact in this space, but I entirely recognise the value and importance of hydrotherapy as a treatment for particular conditions and I will be delighted to meet him.

[Jonathan Ashworth (Leicester South) (Lab/Co-op)]

Of course the number of general and acute beds open across the estate impacts on a trust’s ability to get on top of the elective backlog, which now stands at 5.3 million—a record high—with 336,000 waiting over a year and 7,000 waiting over two years for treatment. On appointment, the Secretary of State promised trusts that they would get everything they need to get through the backlog. So how much will trusts get and when will they get it?

[Edward Argar]

It is an important question. The Secretary of State has made it clear that tackling the elective backlog is one of his key priorities in his new role. The right hon. Gentleman will be aware that the Government have already committed £1 billion to helping to tackle the elective backlog. That, of course, comes on top of the record funding of £33.9 billion to ’23-24 for our NHS, but that commitment remains. We will do whatever is necessary to ensure that our NHS can tackle the elective backlog and get those waiting lists down.

[Jonathan Ashworth]

I am grateful to the Minister for his answer, but if it is a priority of the new Secretary of State why on Friday were trusts told that the threshold for accessing that elective recovery funding was increasing, effectively making it harder for a trust to access funding at just the time when hospital admissions for covid are increasing and we have trusts, such as in Leeds and Birmingham, cancelling cancer surgery? Surely we should be giving trusts more resources now, not restricting access to the elective recovery fund.

[Edward Argar]

In terms of the elective recovery fund, we have worked with the NHS to determine the right thresholds and the right premiums for payment for elective activity over and above what we would be expecting in the circumstances. The NHS is doing an amazing job in difficult circumstances, as the right hon. Gentleman will appreciate, with the impact that infection prevention control restrictions have had on the ability of trusts to see the number of people that they normally would. Trusts are taking huge strides to restore services and the ERF is there to help to ensure that they are funded for that activity level so that they can get provision up and above where it needs to be in order to get the waiting lists down.

[Ian Lavery (Wansbeck) (Lab)]

What steps he plans to take to ensure that the NHS is excluded from future trade deals.

[The Minister for Health (Edward Argar)]

We have been clear that the NHS, the price it pays for medicines and the services it provides are off the table in our trade negotiations. No trade agreement has ever affected our ability to keep public services public, nor forced us to pay for more medicines. My Department works closely with the Department for International Trade to ensure that this is reflected in the negotiations of new trade deals.

[Ian Lavery [V]]

Last week we proudly celebrated the wonderful creation of the NHS—the most cherished of all national institutions—yet grave fears remain about its ultimate privatisation under this Government. If the Government are determined to sign up to the provisions in the trans-Pacific partnership for investor-state dispute settlement, can the Minister at least do one thing today to limit that damage? Will he guarantee that the NHS will be totally exempt from the scope of those ISDS lawsuits and ensure that that exemption is written into the terms of the UK’s accession?

[Edward Argar]

The Government have been clear in our published approach to negotiations, both on the comprehensive and progressive agreement for trans-Pacific partnership and any US trade deal, that protecting the NHS is a fundamental principle of our trade policy. The UK will ensure that the terms we sign up to in any trade negotiation uphold the Government’s manifesto commitment that the NHS, its services and the cost of medicines are not on the table, and that we hold true to our principles underpinning the NHS—of a service available to all at the point of need, free.

--- Later in debate ---

[James Wild (North West Norfolk) (Con)]

What progress his Department has made on selecting the eight new hospital programme schemes invited to bid for funding announced in the spending review 2020.

[The Minister for Health (Edward Argar)]

On 2 October last year, we announced 40 new hospitals to be built by 2030 and committed to an open process to confirm a further eight new schemes. Taken together, those 48 schemes should represent the biggest hospital building programme in a generation. As my hon. Friend would expect, my right hon. Friend the new Secretary of State is taking a close interest in the detail of this process, and I hope to be able to offer a further update on the selection process for the next eight hospitals very soon.

[James Wild]

Spending hundreds of millions of pounds patching up buildings long past their planned lifespan—such as the Queen Elizabeth Hospital in King’s Lynn, which currently has 200 safety props holding up the concrete roof—does not represent value for money. What reassurance can my hon. Friend give to the thousands of my constituents who in recent days have signed a petition for a new hospital to replace the QEH that the Government are looking seriously at the urgent and compelling case for a new fit-for-purpose hospital for staff, patients and visitors?

[Edward Argar]

My hon. Friend’s constituents will know that, in him, they have a doughty champion of their cause and a strong advocate for his hospital. He and I have spoken on many occasions, and I recognise the challenges facing the Queen Elizabeth Hospital, which he has been very clear about. The spending review 2020 included £4.2 billion this financial year for NHS operational capital investment to allow hospitals to maintain and refurbish their infrastructure, including a ring-fenced £110 million allocation for the most serious and immediate risk posed by reinforced autoclaved aerated concrete. My hon. Friend’s hospital has received just over £20 million of that funding to help to mitigate the most urgent RAAC risk, but he will also have heard me say, without prejudging any announcement my right hon. Friend will make about the criteria for the future eight, that safety will be one of the considerations.

--- Later in debate ---

[Jason McCartney (Colne Valley) (Con)]

I have been contacted by a number of my Colne Valley constituents who have had operations and medical procedures cancelled or postponed at short notice. With coronavirus cases still on the rise, what is the strategy to tackle the backlog in operations and medical procedures?

[The Minister for Health (Edward Argar)]

My hon. Friend rightly raises an issue that I know will be a concern for constituents of all Members of this House. The backlog of treatment—the waiting list—is over 5 million. However, we are making rapid progress with that, and so is the NHS. We are looking at a variety of ways to do that—not just providing the funding needed to do it, but through innovation, accelerator hubs and diagnostic hubs, all designed to get the waiting list down and to get people the treatment they need when they need it. I would be very happy to discuss the specifics of my hon. Friend’s local situation with him outside this place.

[Mr Speaker]

Wendy Chamberlain was online, so let us go to Wendy. Welcome, Wendy.

Draft Health Security (EU Exit) Regulations 2021

Edward Argar Excerpts

Tuesday 13th July 2021 General Committees

[The Chair]

Before we begin, I remind Members about social distancing regulations. Spaces available to Members are clearly marked. Mr Speaker has stated that masks should be worn in Committee, when Members are not speaking. Hansard colleagues would be grateful if Members sent any speaking notes to [e-mail].

[The Minister for Health (Edward Argar)]

I beg to move,

That the Committee has considered the draft Health Security (EU Exit) Regulations 2021.

It is a pleasure not only to serve under your chairmanship for the first time, Mrs Murray, but to see you in person again—it has been a long time.

I am sure that hon. Members will agree that sharing information in order to co-ordinate health protection activity between all parts of the UK, as well as internationally, is critical in ensuring that we can effectively prevent and respond to serious cross-border health threats. That has been evident to us all, and of particular importance, during the pandemic. The regulations will ensure that such necessary co-ordination is maintained following our departure from the EU, and will enable us to continue to deliver high levels of human health protection across the whole UK. They modify retained EU law on health security to establish a stand-alone UK-wide regime.

The regulations form part of broader ongoing work to improve our health security capabilities, including through the establishment of the new UK health security agency, which will be fully operational from 1 October 2021. UKHSA will combine key elements of Public Health England, NHS Test and Trace and the Joint Biosecurity Centre. It will provide overarching leadership to strengthen partnership working and the response at local, regional and national levels. UKHSA will be this country’s permanent organisation to build standing capacity to plan for, prevent and respond to threats to health. It will be able to deploy the full weight of our analytic and genomic capability on infectious diseases. It will work collaboratively with partners around the world to lead the UK’s global contribution to health security.

The regulations will support UKHSA, alongside Public Health Wales, Public Health Scotland and the Public Health Agency of Northern Ireland, in quickly identifying and responding to a wide range of health threats. They will ensure that we maintain a robust and consistent UK-wide approach to health security that enables international working and links to international surveillance systems, which is so important.

I will briefly set out a little context. As hon. Members will know, on 24 December 2020, the UK-EU trade and co-operation agreement was announced. These regulations will support the UK in meeting the health security arrangements in that agreement. The TCA provides a strong basis for the UK and the EU to continue to co-operate closely on health security, including: a commitment to inform each other when new public health threats are identified in the UK or the EU; ad hoc UK access to the EU’s database for sharing alerts, known as the early warning and response system; a provision for the UK to attend the EU Health Security Committee; and a commitment to co-operation between the UK and the European Centre for Disease Prevention and Control, including through the inclusion of a memorandum of understanding, which is being negotiated. It is because of these arrangements that the UK was given access to the EWRS for covid-19 from 1 January 2021, ensuring continuity after we left the EU, and we attend the Health Security Committee. Our current access has avoided any disruption in the flow of public health data during the pandemic.

While we were a member state, the UK was required to co-ordinate with the EU, and to share with it certain types of information on health protection, such as early alerts on newly identified threats. As health protection is predominantly a devolved competence in the UK, in order to effectively meet these obligations, the four UK nations had to co-ordinate and share the required information with Public Health England, which is the UK’s focal point for communication with the EU. However, following the end of the transition period, this retained EU law relating to health security no longer operates effectively to set rules for such co-ordination on a UK-wide basis. Therefore, the proposed regulations modify and transfer functions previously carried out by the EU to a new UK health protection committee and to UKHSA, working in co-operation with their counterpart organisations in Wales, Scotland and Northern Ireland. Let me set out the key ways in which the regulations do this.

First, we recognise the importance of early alerting. That has been clearly illustrated by the pandemic. It is imperative that when a threat is identified, information is rapidly shared to enable the quick implementation of control measures that will reduce transmission rates in the general population and protect individuals. To ensure we have a robust early alerting system in the UK, these regulations require the UK’s public health agencies to notify the UK’s focal point—PHE, which will become UKHSA—within 24 hours of any new threats being identified.

For the purpose of these regulations, PHE is designated the UK’s focal point, with that function transferring to UKHSA on 1 October. In this role, UKHSA will be responsible for receiving alert notifications of serious cross-border threats to health from the different parts of the UK, and then working jointly with them to conduct rapid risk assessments and put in place co-ordinated response measures as necessary.

To meet our obligations under the TCA, UKHSA must notify the EU of any threats occurring in the UK that may present a risk to EU member states. In return, the EU will notify the UK of any emerging threat in Europe that may present a risk to us. If the UK and the EU agree that it would be beneficial for the UK to have access to EWRS for any threat, and to sit on that committee, UKHSA will be responsible for uploading and receiving related information to ensure continuity of flow.

Secondly, it is critical that we continue to conduct UK-wide epidemiological surveillance on known communicable diseases. The regulations therefore make provision for the UK’s four public health agencies to conduct surveillance of communicable diseases on a shared list and related special health matters.

Thirdly, the regulations require the UK Government, the devolved Administrations and the UK’s public health agencies to consult each other with a view to co-ordinating their respective monitoring, early warnings and responses to serious cross-border health threats. They must inform each other of any substantial revisions to preparedness and response planning.

Finally, to support the implementation and functioning of these regulations, we are establishing the UK health protection committee. The committee will regularly meet representatives from all parts of the UK, and will provide advice on the list of communicable diseases and related special health matters that are subject to UK-wide surveillance, and on the associated operational procedures. The committee will be accountable to the UK chief medical officers group.

As health security is an area of devolved competence, we have obtained formal consent for these regulations from the devolved Administrations, as the shadow Minister and the Committee would expect. In parallel, we are working together to develop a common framework that will further strengthen UK-wide governance arrangements on the prevention and control of serious cross-border health threats to complement these regulations.

To conclude, I must emphasise that these regulations are critical in ensuring that we continue to take a consistent and collaborative approach to health security in all parts of the UK and, importantly, with our European friends and neighbours. The regulations will help ensure that the UK can meet the obligations on health security that we recently agreed in the TCA, and represent an important step forward in the protection of our citizens and those across Europe.

--- Later in debate ---

[Edward Argar]

I am grateful to the shadow Minister for a well researched and pragmatic response to the regulations; it was typical of the responses that he has given on multiple Delegated Legislation Committees we have been on together. We may not agree on everything, but I agree with him on a huge amount in this case. I suspect that, in this space, we agree on rather more than many might suspect. He is right to highlight that diseases, including the virus in this pandemic, do not respect borders. It is therefore in everyone’s interest to work together—not just internationally, but as he says, with our friends and colleagues in Scotland, Wales and Northern Ireland.

The hon. Gentleman asked a number of questions. He mentioned the explanatory memorandum; he and the Secondary Legislation Scrutiny Committee make a fair point. I suspect that because we all consider regulations almost every week—or feel like we do—the detail under- pinning them is etched on our minds. However, the Committee is right that the explanatory memorandum’s purpose is to make that accessible to members of the public, and Members of the House who may come to these matters afresh. I hope that in my remarks I added a little flesh to the bones of how this will work and what sits behind the regulations.

The hon. Gentleman mentioned the EWRS, the Health Security Committee in Europe and how it will work—that is, how getting access worked this time; he also asked what would happen and what the fallback position was if access were refused. We received confirmation of the TCA over Christmas and new year; at the start of this year, I instructed officials to formally request continued access to EWRS and to the committee. If I recall, that was granted within a matter of hours, if not minutes. At a pragmatic level, therefore, there is genuine recognition and desire from both the EU and the UK to work in a sensible, grown-up way and achieve the results that all our citizens expect.

The hon. Gentleman asked “What if?”, which is fair. The TCA provides a framework for the UK to request access where we think it is in our interest to do so in responding to a serious cross-border threat to health. If the EU rejected that request—on the basis of experience, I would not expect that—the UK would continue to receive the critical information and notifications on public health risks and incidents through our parallel access to alternative international surveillance systems, such as the event management system operated by the World Health Organisation.

That takes me to the hon. Gentleman’s second point, which was about the WHO. We are talking about additionality; the measures in no way replace our commitment to working with the WHO through the Epidemic Intelligence Service, and through our obligation to comply with International Health Regulations 2005, which link closely with the WHO’s work. Our commitment to working collaboratively and openly with the WHO remains and is parallel to what we seek to do with the regulations.

The shadow Minister asked why we are putting UKHSA together, and voiced his concern that it might switch the focus to health security, and away from broader public health considerations. One of the reasons why we are putting it together is that over the past year, we have taken a huge step forward in our diagnostic and testing capability in order to meet the challenges of this pandemic. The measures will bring that test and trace capability into a new organisation, and establish it formally as a proper agency of Government, with the appropriate internal Government arrangements to ensure that it is joined up.

On the hon. Gentleman’s second point, yes, health security is hugely important; that is obviously top of our mind at the moment, given what the country and the world has seen over the past 15 months. As a former council cabinet member for adult social care and health, including public health, I recognise the importance of broader drivers of public health outcomes, and of reducing health inequalities, and UKHSA will absolutely continue to focus on that in parallel with its health security responsibilities.

On the point about debate, the shadow Minister and the Opposition Back Benchers are always welcome to seek a debate on this subject; I say that with relaxed confidence, because I suspect I would not be the Minister answering. Those routes are, of course, open to him on the Front Bench and to Opposition Back Benchers.

The hon. Gentleman talked about the need for internal UK co-operation to match the openness with our EU friends and colleagues. He is absolutely right. That is one of the reasons why I was so keen, as he would expect—we were obliged to, but it was the right thing to do—to engage with the DAs on these regulations to make sure that they work. We are not replacing the public health bodies in Scotland, Wales and Northern Ireland; they will work with PHE, and then UKHSA. They will be full partners in that, because of course we will have to co-operate. They will have an equal say on which diseases go on the list of those we monitor, those we take action against, and those we transmit information on. That is the national list, but that does not prevent a devolved Administration from being able to decide to monitor an additional disease in its territory, so the devolution settlement is respected.

The hon. Gentleman mentioned divergence of tone and timing on occasion during the pandemic. That is a reflection of the fact that going into a set of regulations, it is very easy to move forward as one, but as he said, areas come out of regulations in different ways and at different times, to reflect what is going on in different parts of the country. We have seen that, and we have seen slight tonal differences, but looking at this from within the Department of Health and Social Care, I see that whatever the rhetoric at political level, there has been incredibly effective co-operation beneath the surface, at medical expert and official level, to make sure that the UK continues to do everything that it can to keep citizens safe, wherever they live.

To conclude, as the shadow Minister said, diseases do not respect borders. It is absolutely right that we co-operate internationally and across the United Kingdom. We negotiated a good deal with the EU in respect of the TCA and health security; the regulations give effect to the deal, and will help protect our citizens for many years to come.

Question put and agreed to.

Draft Coronavirus Act 2020 (Early Expiry) Regulations 2021

Edward Argar Excerpts

Wednesday 7th July 2021 General Committees

[The Chair]

We have moved to 1 metre-plus social distancing in general Committees; Members should only sit in places that are clearly marked. Mr Speaker has asked that masks should be worn in Committee, except when speaking and unless Members are exempt. Could Members please send speaking notes to [e-mail]?

[The Minister for Health (Edward Argar)]

I beg to move,

That the Committee has considered the draft Coronavirus Act 2020 (Early Expiry) Regulations 2021.

It is a pleasure to serve with you in the Chair, Mr Robertson.

As we all know from the Prime Minister’s announcement on Monday, the country continues to move towards a “new normal”, and the end is in sight. As such, the removal of some powers contained in the Coronavirus Act 2020, announced earlier this year, is not only in keeping with our direction of travel out of restrictions but also represents and reflects the achievements made by our country’s collective endeavours to track, contain and mitigate the impact of the virus over the past 16 months.

The shadow Minister, the hon. Member for Ellesmere Port and Neston, and I regularly reprise these sessions when we face one another across the Committee Room. Each time I would quite rightly pay tribute to the work not only of the British people but of our health and care workforce, and indeed key workers, particularly our local government workforce and councillors across the country. He would echo that tribute. Just as we in this House have seen the volume of our work increase during this time, our colleagues in local government, irrespective of party, have seen the same. Councillors up and down the country have been doing a fantastic job. It is right that I put on record my gratitude to them, and I know that the shadow Minister will echo that.

The Coronavirus Act 2020 continues to be an important piece of legislation. It has helped to facilitate the coronavirus job retention scheme and the self-employed income support scheme—important examples of how the Government continue to support individuals and businesses. Our justice system continues to be able to operate effectively in challenging times, thanks to sections 53 to 55 of the Act, which allow the use of video technology during court cases. The NHS remains resilient, boosted by the powers in sections 2 and 6, which have helped to permit to date the temporary registration of more than 15,000 nurses, midwives, paramedics and social workers to bolster the workforce available to tackle the pandemic.

The reality is that the risk of transmission, of hospitalisation and indeed of death has thankfully been significantly reduced thanks to the unqualified success of the vaccine roll-out, and its role in weakening the link between infections and hospitalisations. That is significant as it underlines the importance of vaccinations because, although we expect cases to climb, as the Secretary of State has set out, vaccines are the reason why, despite the number of infections climbing, it is the right thing to ease restrictions now, and we are able to do so.

The reality is that social restrictions cannot and must not stay in place forever. We have now set out the detail of step 4 and confirmed our commitment to their removal, subject to the assessment and announcement on 12 July. The vaccination programme is the essential constant in our approach to managing the pandemic, and it has always been clear that that would be, and is, our route back to normality.

That is where we are today, but let us briefly go back to where we were in March, when, as part of a raft of tough safeguards built into the 2020 Act, the one-year review sought to assess the powers on an individual basis in order to ensure they continued to be necessary for managing the pandemic. As part of that process, substantial analysis of all temporary provisions was undertaken. As a result of that, 12 provisions were identified for early expiry, and are being brought before the Committee today for agreement. I will briefly detail the provisions.

Sections 8 and 9 facilitated emergency volunteering leave and compensation leave for emergency volunteers. Thanks to the fantastic efforts of the NHS and others those provisions were not needed nor used. Other measures, including NHS Professionals, the bring back staff scheme and continued efforts of bank staff, have been sufficient in addressing the need for trained clinical staff.

Section 15 provided easements to the Care Act 2014, allowing local authorities to prioritise those with the most urgent covid-19 needs by streamlining assessment and charging for care retrospectively. In England, only eight local authorities utilised those powers, and the power has not been used since 29 June 2020. The social care workforce have remained resilient under extreme pressure, and continue to work flat out to deliver excellent care. The expiry of this provision is a clear demonstration of the determination and flexibility of our health and social care system. It is right that given that track record of usage, and lack of usage recently, we expire the provision.

Section 24 allowed for the extended retention of biometric data, allowing it to be held on record for additional time. Sections 25 to 29 required information from businesses and people involved in the food supply chain. Section 71 allowed a single Treasury Minister to sign on behalf of all Treasury Commissioners. Section 79 extended arrangements for business improvement districts, and section 84 allowed for the postponement of General Synod elections. It is right that we move to expire formally all those provisions. We also suspended a further three provisions in the 2020 Act on 21 April. The early expiry of all those provisions is a clear demonstration of the Government’s commitment to act upon parliamentary scrutiny to retain only the powers that are necessary and proportionate, and only for the period of time that that is essential.

In the debate on 25 March, Members raised concerns about accountability in the 2020 Act, and similar concerns were expressed when the Act was passed in 2020. We have put in place a suite of reporting requirements to ensure that the Act is as transparent as possible. The eighth two-monthly status report on the non-devolved provisions is due to be published at the end of this month, and in September we will see publication of the third six-monthly review, and a decision by Her Majesty’s Government on whether to expire the Act or to renew further provisions. I would not wish to prejudge in any way what the review will say, but I would make clear my view and that of the Secretary of State is that we would wish to see provisions in the Act in place for no longer than is absolutely necessary.

The remaining 27 non-devolved provisions in the 2020 Act serve three core purposes. They help to shore up capacity in the health and care system; ensure delivery of essential public services and provide financial and other support to businesses and individuals.

Although, rightly, the threat may feel less pressing, and indeed is so, and life is beginning to look far more normal, we must still ensure that we have the correct support in place to help see us out of the end of the pandemic and set fair on the path to recovery. The Act contains facilitative, enabling provisions that are essential to help bolster our position and further support that recovery. Therefore, at this point, the need for those provisions in the Act remains. However, the next six-monthly review process, concluding in September, will rightly rigorously assess each and every one of the temporary provisions and further expire all those deemed no longer necessary.

As the approach to managing the virus evolves, so too should the legislation governing it. The amendments set out to the 2020 Act signal a step, a large one, in the right direction, a direction that focuses on the positives, on recovery and on reaching the final milestone of the roadmap.

I thank colleagues in the devolved Administrations for their engagement, support and consent in expiring the relevant provisions that apply to them. I commend the regulations to the Committee.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

It is a pleasure to see you in the Chair, Mr Robertson.

I thank the Minister for his introduction, and for his kinds words about local government. I say that because, for the record, my wife is a member of a local authority. I absolutely agree with the Minister that, in his words, the country has shown collective endeavour to do its best to fight the virus. That has been clear whether we are talking about the NHS, social care, local government or any of the other key industries that have contributed to the national effort over the past 15 months. As the Minister said, we all owe them a great deal for the efforts that they have put in.

As the Minister said, the matter was debated in the House in March. From reading the Hansard report, I think it is fair to say that a number of right hon. and hon. Members felt short-changed on account of the truncated nature of the debate, especially given that various other measures were discussed at the same time, and it was not possible to vote on amendments. It feels as though parliamentary procedure is operating in a manner that only gives us the thinnest veneer of accountability.

On a related point, I recognise the pressures on the Department of Health and Social Care, but I am not entirely clear why it has taken so long since March for the regulations to appear in Committee. Although that criticism is not as strong as it would have been were we debating the regulations merely to ratify them after their introduction, there is a pattern of delegated legislation procedures being followed weeks, indeed sometimes months, after the event. That has characterised the Government’s approach throughout the pandemic. We need an explanation of that behaviour. On a related point, I draw the Minister’s attention to the fact that although the legislation.gov.uk website shows the Statutory Instrument, it does not include the date on which it was made or will come into force. I appreciate that that website is outside of the Minister’s control, but we need to be clear about when regulations are made and come into force. I hope that he has a correct copy of the legislation to hand to clarify that for us.

I understand, of course, that the Government have had to move very quickly, and have had to make exceptional decisions throughout the pandemic. Time has moved on, however, and that pace of action has become less and less of an excuse and more and more of a habit. It is almost a default position adopted by the Government. I am sure that that is convenient, but that does not do any good at all to accountability.

The timing of today’s debate is apposite, given that the Government have decided that they no longer need emergency powers. Indeed, the Prime Minister’s announcement on Monday seemed to suggest all but the end of virtually all measures on 19 July. We have been told that the roadmap to unlocking would be driven by data not dates, but the Prime Minister has announced that we will basically no longer need any restrictions before he has seen any of the relevant information. Can the Minister tell us whether Government policy has changed from data not dates to “If not now, when?” to quote the Prime Minister? That is the polar opposite.

Regardless of the methodology used to reach the decision that virtually all measures to prevent the transmission of coronavirus are no longer needed, and regardless of the wisdom of that, which I recognise is outside the ambit of today’s regulations, that decision has a direct bearing on those regulations. As we have heard, the regulations remove a number of the emergency powers granted to Government under the Coronavirus Act 2020, but, as the Minister also correctly pointed out, many more powers still remain. I draw the Committee’s attention to the words of the former Secretary of State, the right hon. Member for West Suffolk (Matt Hancock), who said of the powers in the 2020 Act

“we have always said that we will only retain powers as long as they are necessary. They are exceptional powers.”

Indeed, they are exceptional—they are unprecedented, and that means that they should not remain in force for a moment longer than necessary. The Minister said that there will be a review in September, and we know that those provisions are subject to a two-monthly review, but if the Government’s judgment is that we are so far past the worst of the crisis that we can remove all restrictions on people’s movements and interactions, including measures such as compulsory mask wearing that has been shown to protect the most vulnerable, why do the remaining powers need to stay on the statute book for a day longer than 19 July?

The two-monthly review justifies the continued use of emergency powers under the 2020 Act by claiming

“there is further work to do before returning to a more familiar version of normal life, and the ability to respond flexibly and cautiously still exists.”

Those words jar with the noise coming out of Government. Can the Minister confirm today that all remaining emergency powers will be repealed by 19 July? If not, why not? Clearly, we are no longer in the realms of responding cautiously to the virus, so why do those powers need to remain in force a day beyond 19 July?

Has any consideration been given to retaining some of the remaining powers, rather than all of them? It has been said that, shortly, we may expect 50,000 new cases every day. In that case, the powers relating to statutory sick pay may well be worth retaining. If powers have been enacted under emergency legislation, is there now a case for those powers to be permanently on the statute book? Frankly, I think that is how Parliament would want matters to proceed.

The Minister and I are likely to spend a great deal of time together in the coming months debating the Department’s latest effort to reorganise the NHS via the Health and Care Bill, which was published yesterday. The Minister will no doubt be disappointed that I have not yet read it in its entirety.

[Edward Argar]

There is plenty of time.

[Justin Madders]

Indeed. Would any of the emergency powers contained in the 2020 Act appear in that Bill at a later stage in parliamentary proceedings? I am thinking in particular about the powers in section 14, which I believe the Government have said they found useful. No doubt we can debate the merits of that in some detail at a later stage, but I would be grateful for a response from the Minister today.

The biggest concern raised in the March debate, and which still remains, relates to the powers in section 21 of the 2020 Act to detain potentially infectious persons. That power has been used in a number of prosecutions, and I understand that every one was found to be unlawful by the Crown Prosecution Service. The Joint Committee on Human Rights advised in its report of September last year

“In the absence of any clear evidence to support the retention of these powers”

section 21 powers “ought to be repealed”. It is not at all clear to me why the Government would wish to retain such a draconian, but ineffective, power. That seems at odds with yesterday’s announcement that those who have had both vaccinations will no longer be required to self-isolate. The power to detain under section 21, however, makes no distinction between those who are and are not vaccinated.

The Minister referred to the two-monthly review as being evidence of the Government’s commitment to transparency, but those who studied the latest review in May of section 21 powers raised concerns about the thoroughness of that exercise. The review states:

“Public Health Officers have used these powers a total of 10 times, but have not used them since October 2020…Police have not used these powers to date and they are only to be used after obtaining advice from a Public Health Officer.”

Big Brother Watch, which sends regular briefings to Members on the use of the Government emergency powers, has said that it has documented multiple unlawful use of section 21 by police forces in England to arrest and detain individuals. Members made various references to that in the March debate. It is a little disappointing, and indeed disconcerting, that whoever drew up the two-monthly review did not appear to make any further inquiries about the potential misuse of that power, and indeed its effectiveness.

The two-monthly reviews feel like a bit of a tick-box exercise to me. The Government have serious, unprecedented powers, and despite allegations that those powers are being used unlawfully, the Government review does not appear to be even aware that those powers have been used at all. That is the case before we even get to considering whether those powers are necessary.

The Minister must demonstrate that the Government are not falling into the trap of keeping emergency powers because that is convenient, rather than necessary. The Opposition will not oppose regulations, but I hope that the Minister will address the points I have raised. I hope that he can demonstrate that any emergency powers no longer needed for public health reasons will be revoked as soon as we reach that point.

[Edward Argar]

As ever, I thank the shadow Minister for his typically measured and sensible contribution and pertinent questions. The 2020 Act has formed a central plank of the Government’s approach to coronavirus and has in many ways often been misunderstood. As I said in the March debate, the vast majority of the measures have been undertaken by the Government under the Public Health (Control of Disease Act) 1984, but the 2020 Act none the less plays an important role. Like the shadow Minister, I and the Government have no desire to see the powers in place a day longer than they are absolutely needed. I have highlighted that the reviews will take place and that September is the next six-monthly review. I do not want to prejudge what will emerge, but I put on the record my view that the powers should not be in place a day longer than they can be justified as essential.

In that context, the hon. Gentleman made a number of points, which I will try to address in turn. He talked about whether some powers might be useful in the longer term—I think he referred to section 14 by way of example. I hope to give him the reassurance he seeks: notwithstanding the six-monthly way point or checkpoint in September, the powers in this Act automatically sunset next spring. There was a two-year sunset clause, and the Government are clear that any powers deemed to be useful in the longer term will be subject to the normal legislative process in this place, with hon. Members having the opportunity to scrutinise, challenge and debate in the usual way, if we wish to retain anything in the long term.

In the context of the legislation to which we gave First Reading yesterday, some aspects shade into this space, but do not explicitly replicate what is there. I suspect that the hon. Gentleman and I will spend many happy days in Committee, along with our hon. Friends the Whips sitting next to us on the Bench, so there will be opportunities to discuss and debate how that might be done.

The hon. Gentleman talked about the timing of the draft instrument after the debate on 25 March. My understanding of the timing is that immediately after that debate we went into recess, but that on our return in April, the statutory instrument was laid on 21 April, so relatively swiftly afterwards. The scheduling of debates on such instruments are a matter for the usual channels and the business managers.

My hon. Friends the Whips will have heard what the hon. Member for Ellesmere Port and Neston said, but I know that both Government and Opposition work hard, and have done throughout, to schedule debates in as timely a fashion as possible. We recognise the point he highlighted, that in the early stages the pandemic, that was extremely difficult to achieve, but I know that this House values timely debates on measures that come before it. The usual channels do everything they can to facilitate that for Members of the House.

On legislation.gov.uk, I will check the point the hon. Gentleman made. I cannot give him an answer off the top of my head, but I will endeavour to look into it. If anything is lacking, I will ensure that it is addressed. I suspect that, since the other place debated this on Monday and we are debating it today, with the dates and everything, the powers will be updated following our—I hope—approval. I take that approval slightly as read, given his kind words that he will not be opposing this piece of legislation.

The hon. Gentleman touched on a couple of other areas. Sections 21 and 22 were challenged by hon. Members, not necessarily saying no to them, but wanting to understand the reasons: were they proportionate, were they necessary and how would they operate? Section 21, he is right, has not been used since October 2020. The key aspect of section 21 is that the powers to do with infectious persons are most useful in the early stages of a pandemic, with small numbers.

[Justin Madders]

I think the Minister has misunderstood slightly what I said. The two-monthly review says that the power has not been used since October, but my point is that certain reports have it that it has been used, which raises the question of how thorough the review was.

--- Later in debate ---

[Edward Argar]

If I may, I will come to that. To address why section 21 is useful—I will then address the hon. Gentleman’s specific point—that is so in the early and latter stages of a pandemic, when we have smaller numbers. We might wish to—or can, as we cannot when infection rates are high—prevent new variants and a new spike, so that is when such powers are useful. As I said, on the basis of the information that we have, they have not been used since October 2020, which I think shows they are only used proportionately. However, if he has any information to send me in the context of his comments on the two-monthly review or the coming six-monthly review, I am always happy to receive any correspondence from him.

When section 22 was debated in the Chamber, some hon. Members asked why it was necessary. Given the short nature of that debate, it was not possible to answer every point, so I will address it now, so that it is on the record. The Public Health (Control of Disease) Act 1984 provides considerable powers on things such as the closure of particular businesses or key infrastructure, but it lacks the power to close some elements of critical infrastructure, even in the case of a new variant or a new spike breaking out in a particular location. Section 22 ensured that the power was comprehensive and could be used if necessary. Again, Ministers have no desire to see any of the powers used unless absolutely necessary.

The hon. Gentleman referred to the Prime Minister’s announcement on Monday and the new Secretary of State’s statement to the House. On Monday, the Prime Minister was clear in setting out what step 4 would look like—what he envisaged and how it would work—but he was also clear, as was the Secretary of State in the House, that that was of course subject to the 12 July assessment and decision, as I said. The Prime Minister was very clear in setting out the direction of travel and his intention, and that the data and the dates both looked extremely good at this point. I share his confidence, based on my understanding of where we are today.

I hope that addresses the vast majority of the issues raised by the shadow Minister. If there are any others, he knows that he is always welcome to write to me, and I will endeavour to give him a timely response.

Question put and agreed to.