Health and Care Bill

Debate between Lord Patel and Lord Warner

Committee stage
Wednesday 9th February 2022 Lords Chamber

[Lord Patel (CB)]

My Lords, I shall speak to my Amendments 229 and 230. I thank the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Walmsley, for adding their names to them. The House of Lords Constitution Committee report on the Bill raises serious concerns about the range of Secretary of State powers in the Bill and concludes that these new powers, coupled with new powers for the Secretary of State of oversight, delegation and transfer of function,

“could alter the balance between the Government’s constitutional responsibility for the provision of health care and providers’ ability to function in a manner that can respond effectively to local needs. It also risks undermining accountability by making it more difficult to understand which body is responsible for a particular function of the NHS.”

That is a claim that we must take seriously.

All the amendments in the group are important but, as has already been said, the hour is late and we need to rush so we cannot discuss them fully.

As the Bill is drafted, the Secretary of State would have the power to confer, abolish or change the function of a list of bodies that includes NHS England, Health Education England and the Human Fertilisation and Embryology Authority, to name but a few. One safeguard included in the Bill in relation to NHS England is that the Secretary of State would stop short of changes that would make NHS England redundant—but “redundant” is not defined. However, nothing on the face of the Bill sets out how high or low that bar would be set.

I recognise the logic of the Secretary of State having powers to confer responsibilities on arm’s-length bodies via secondary legislation. However, these new powers are far more extensive than that, and there is a real danger that their application could threaten the operational independence of key parts of the NHS. The Secretary of State should not have the power to abolish a body such as the Human Fertilisation and Embryology Authority, or to transfer the majority of its powers. Health Education England and the Health Research Authority were established through the Care Act 2014. If the Secretary of State believes that any of these bodies should be abolished or have functions removed, Parliament should have the opportunity to debate and understand why he desires to take that action, hence my amendment to reduce the scope of these powers and remove the Secretary of State’s powers.

[Lord Warner (CB)]

My Lords, after consultation with the clerks and for the convenience of the Committee, I have moved my Amendment 318 into this group. Before I speak to it, I say that, as a person who has culled a few quangos in his time, I think that the amendments in the names of the noble Lords, Lord Hunt, Lord Clement-Jones and Lord Patel, are important. Even I never had the nerve to actually abolish bodies set up by Parliament just because I thought that it would be a good idea. That seems to be the approach taken in some parts of this legislation. It is worth bearing in mind a point made already: that attracting skilled professional staff to many of these bodies would be much more difficult if they were in an omnibus body such as NHS England. Many high-quality professionals would not want to work in that environment.

The purpose of Amendment 318 is simple: to delay implementation of Parts 1 and 3 of the Bill until the Government have reduced substantially the huge backlog of patients awaiting NHS diagnosis and treatment. The amendment is based on the proposition that, however meritorious the NHS reorganisation that the Government propose is, implementing it when they have told the NHS that their top priority is reducing the backlog seems a considerable risk. As a former Health Minister, I regard this as highly ill-advised and not in the best interests of patients. Let me briefly set out the arguments.

In its report of 1 December, the NAO made clear the unprecedented scale of the backlog that the Government have finally faced up to. It has taken over two months for the Government to come to Parliament, which they did yesterday, to acknowledge the true scale of the backlog. Some 6 million patients are now known to be on the NHS waiting list; 300,000 of those have waited for over a year, and 18,000 for over two years. But the NHS data tells only part of the backlog story, as the NAO pointed out over two months ago. We know that 10 million patients have not come forward during the pandemic. The Health Secretary has acknowledged that it is unclear

“whether it will be 30% or 80%”

of this 10 million who come forward. We do not know how many of these people will request treatment. The Health Secretary said:

“Even if half of these people come forward, this is going to place huge demand on the NHS”.— [Official Report, 8/2/22; col. 805.]


The Institute for Fiscal Studies forecast

“a likely peak of between 8 and 11 million”

people on NHS waiting lists.

What will the new NHS plan do to deal with this? It says that the waiting lists should start to fall “around March 2024”. But that assurance is without knowing the true size of the waiting list, as the Secretary of State acknowledges. The Treasury—the good guys in all of this—wanted more ambitious NHS targets. Instead, the NHS has been allowed to retain a March 2025 deadline for dealing with the 300,000 patients waiting more than a year for treatment. This is the situation in which the Government are trying to introduce a major reorganisation of the NHS, and that is why I have put forward this amendment, which would defer implementation of Parts 1 to 3 of the Bill.

The Government, approved by Parliament, will be asking NHS staff to be pre-occupied with implementing the changes made in this Bill, while often changing jobs as new integrated care bodies and partnerships are established and made to work. The Government are asking them to do this at the same time as they are working to reduce this huge, unprecedented backlog of patients needing diagnosis and treatment.

When he took office, the current Health Secretary’s instinct was to scrap the Bill, and when it began its passage through Parliament the actual scale of the backlog was not known. The Health Secretary needs to return to his initial instinct, which was very sound, and postpone its passage. If he does not, he will be putting many NHS patients at unnecessary risk. I suspect the Minister will tell us that in many areas the boards and partnerships are ready to go. If he does, I would be interested to have a list of those areas, to save a parliamentary Question. If that is the Government’s position, I would be interested to know why the NHS has been allowed to do this before the Bill has been approved by Parliament and the expenditure authorised. Despite the dubious legality of implementing before Royal Assent the changes made in this Bill, Amendment 318 avoids unscrambling what I might call illicit reorganisations.

It is the job of this House to get the Commons to think again. That is what this amendment does. It does not wreck the Bill; it simply defers implementation until the NHS has the huge backlog of treatment under better control. I beg to move.