Health and Social Care Bill

Lord Warner Excerpts

Monday 19th March 2012 Lords Chamber

[Lord Newby]

My Lords, I strongly support the noble Lords, Lord Patel and Lord Noon, in seeking to promote the role of the not-for-profit sector within the NHS, as indeed I do across the whole of the public sector. They have given reasons why within the NHS, particularly at this point, the not-for profit sector can play a valuable role. As the noble Lord, Lord Patel, pointed out, there are a number of serious technical problems facing the sector in successfully bidding for contracts, and he has dealt with some of them.

I remind the House that least week Royal Assent was received for the Public Services (Social Value) Bill which requires all procurers, including those in the NHS, to consider the social value of a tender as well as its financial value, in such explicit terms, for the first time. This is one of the pieces of the jigsaw which I hope will mean that the not-for-profit sector finds it easier to successfully bid for business. The Bill lays a requirement on the public sector, but the problem is whether the public sector will implement the Bill and take the provision seriously. It would be relatively easy for it not to.

Therefore, I and other noble Lords, including the noble Baroness, Lady Thornton, who have been supportive of this principle and the Bill, seek to ensure that the Government put in place specific measures to ensure that procurers take account of the Bill rather than it simply lying idle on the statute book. When we debated this issue at an earlier stage in your Lordships’ House, the Minister suggested that it might be possible to refer to this in the draft commission of procurement regulations, and I hope that he will be able to confirm today that that is the Government’s intention.

[Lord Warner]

My Lords, I commend the Government on making a move in the right direction with these amendments. At earlier stages in the Bill, I tried to raise the whole issue of barriers to entry for new providers of services. This amendment helps in some respects but the noble Lord, Lord Newby, made an extremely important point. How will we know whether the culture has changed not just in relation to not-for-profits and social enterprises but for new providers, sometimes from inside the NHS? There is a deep conservatism—with a small “c”—about how the NHS goes about allowing new players to come into the game. We need the Government to give assurances that they will keep a close eye on this. As I put forward in a previous amendment, they must get Monitor to keep a close eye on the extent to which anti-competitive behaviour by the existing NHS stops new providers from whatever source—not-for-profit, social enterprise, charities, the private sector and from within the NHS—being able, when they offer a better solution to patients’ problems, to make their pitch for an alternative way of doing business.

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[Baroness Cumberlege]

My Lords, Amendment 56 is simpler than the amendment I tabled on Report but it is necessary because I need some undertakings. I know that other noble Lords also seek those. The amendment concerns Public Health England. Both amendments found favour across the House in the previous debate, as I hope Amendment 14 will in this one. I thank noble Lords who have put their names to the amendment. I know that the noble Lord, Lord Turnberg also wished to put his name to it, but there was no room on the Marshalled List.

As I said, the amendment concerns Public Health England, the new body that is destined to take on the duties of the Health Protection Agency, the cancer registries, the National Treatment Agency, the Public Health Observatories and some of the functions of the regional directors of public health and their teams. The staff of Public Health England will number around 4,500 people, so it is an important and considerable agency. The original proposal was that the organisation should be governed by a civil servant acting as the chief executive, without a board to whom he or she would be accountable. It was a model that many of us found very strange and thought unworkable.

At the meeting we had with him and later in correspondence, my right honourable friend the Secretary of State made it clear that he values an unobstructed line of accountability between the individual charged with the day-to-day running of Public Health England and him. However, he agreed in his letter, which I received on 15 March, that Public Health England,

“needs an appropriate level of operational independence for it to be most effective”,

and that,

“it will be essential for it and the Government as a whole to work together seamlessly and to share a common agenda”.

He went on to say:

“I do accept that, if PHE is to achieve our ambitions for it, the chief executive and the Secretary of State should be seen to be subject to frank and expert challenge. To help deliver that challenge I propose to appoint a chair for PHE, through an open and fair competition under the public appointments process, and I will ensure that the PHE board has a majority of non-executives members”.

Later, he refers to them as non-executive members, rather than directors, so I seek an assurance from my noble friend Lord Howe that we are talking about directors and not members. Perhaps he will confirm this.

The board will advise on the running and development of Public Health England but my right honourable friend states that he has not yet had time to consider details of this aspect of the chairman’s role. Once the chief executive post has been filled, he will discuss the overall governance structure of PHE. He will want to make sure that the expertise and experience of the chair will complement those of the chief executive and other senior PHE staff. He goes on to say:

“The essential point is, that we need to design a role for the chair that is significant enough to attract a high quality, respected candidate without diluting the responsibility of either the chief executive or the Secretary of State”.

It is very much my wish that he should involve me further in these proposals. He says that he will write to me, but I should very much like him not only to write but perhaps to seek my views on this aspect of the organisation.

In his letter the Secretary of State writes:

“The chair and non-executive directors will have direct access to Ministers through regular, and if necessary ad hoc meetings”.

I very much welcome that. He goes on:

“They will also have editorial control over a section of PHE’s annual report”.

Could my noble friend tell me what “section” means in this context, as he will know that the annual report will be a crucial document and should be honest and unfettered in its analysis of the nation’s health? He continues:

“The annual report will reflect feedback from external agencies and individuals who have significant dealings with PHE … and PHE data will be subject to the code of practice on official statistics, which severely restricts access to certain material by officials or Ministers before release”.

Although I very much welcome this, I wonder whether my noble friend could give me an assurance that Public Health England staff will be able to give professional advice freely to the public. Since they are employed by an executive agency, they will be civil servants—subject to Civil Service contracts and bound by the Civil Service Code. They will be able speak out only if what they plan to say is departmental policy and has been approved by Ministers.

If PHE is to be the voice of public health, as we hope it will be, it will need to be able to advise the public and other professional bodies. The experts and specialists working in the executive agency will on occasions need to give professional advice that has the confidence of the public without its necessarily having been approved by the department.

Public health specialists employed by the NHS Commissioning Board or a local authority will have the freedom to speak out—of course within their professional code of conduct. I am not seeking for the amendment to be placed in the Bill but an assurance that this difficult tension will be addressed.

In earlier debates, the noble Lords, Lord Warner, Lord Patel, and Lord Turnberg, voiced their strong concerns about the commissioning and conduct of research by PHE—in particular, its ability as regards research funding for external organisations. I am sure that those noble Lords will seek assurances on this.

My right honourable friend the Secretary of State writes that he accepts the importance of the issue and will publish a more detailed description of PHE’s role in research, including its relationship with academic institutions and other agencies. I am delighted that he is happy to involve me and, I hope, other noble Lords with the Chief Medical Officer in further discussions on this issue.

We have come a long way since Committee in designing a much more robust and satisfactory national board to undertake responsibilities for public health. Public health is sometimes seen as a side show in the maelstrom of issues that dominate the provision of NHS services but it contains the basic principle of social justice. It is to ensure that people have access to the essentials for a healthy and satisfying life, and nothing can be more important than that.

The Secretary of State has throughout sought to make public health centre stage, and I pay tribute to him for his commitment and determination, and thank him for listening to and acting on our suggestions. My noble friends Earl Howe and Lady Northover have been equally diligent and generous with their time in meeting our concerns. I know that the noble Lord, Lord Beecham, and others would have preferred there to be a special health authority. I can understand their wish, but the flexibility that an executive agency gives us might be useful in the future. The Secretary of State has promised post-legislative scrutiny of the Bill, specifically to consider whether PHE would be better served by a different arrangement or a better organisational form. I welcome that.

I have quoted fully and, I suspect, rather boringly from the letter sent by my right honourable friend the Secretary of State because it is very unlikely that my amendment will be in the Bill. I therefore need a record of the changes that have been promised. I do not doubt for a moment that there is any intention to renege on these undertakings, but I know how easy it is for things to go astray. I am therefore anxious to get as much as I can into the pages of Hansard as a reference for the future. I very much look forward to hearing the views of other noble Lords and my noble friend’s reply. I beg to move.

[Lord Warner]

My Lords, I have put my name to the amendment and pay tribute to the hard work put in by the noble Baroness, Lady Cumberlege, on making progress in this area. It has occasionally seemed a little like trudging through the Somme mud, but we have made some progress. I share her view that we want to hear at length from the noble Earl about the assurances promised by the Secretary of State, particularly on the governance issue.

I want to raise in a little more detail the issues in paragraphs (b) and (c) of the amendment, regarding the ability of Public Health England to undertake and publish independent research and to bid for research funding from any source. This remains an unresolved issue. The dialogue is continuing in the Department of Health because in November a joint working party was set up between the Health Protection Agency, which is being abolished, and the department about the research activities of the new Public Health England. I remind noble Lords that this is particularly significant because at stake is the large sum of money that the HPA, as a non-departmental public body, raised for research, its own funding of research, as well as the scientific independence and excellence of its staff. There has been a great deal of concern that creating an executive agency with civil servants would make it difficult for that research quality and volume to be maintained in the new world.

Despite the Health Secretary’s assurances, concerns emanating from within the current agency remain around whether things have really been sewn up in terms of the ability of PHA, within the resources available to it, to control its destiny in the future and to go out to seek the research contracts that will enable it to meet the threats and concerns about public health that may have to be faced.

The nub of this issue comes down to a simple matter that I should like to leave with the noble Lord and on which I ask him to provide assurances. My understanding is that the problem at the moment is that the department has taken funds from the Health Protection Agency and Public Health England and made them available only for academic partnership research projects. The concern is that this might lead to Public Health England being prevented from carrying out research if that was not flavour of the month in academic institutions. There could be conflict between the concerns of academics to pursue partnership research and the real needs that the scientists within Public Health England consider to be in the public interest in terms of the research agenda to be followed. That is the main unresolved issue causing concern to the scientists within the Health Protection Agency staff who are soon-to-be-transmogrified into Public Health England.

The more assurances that the noble Earl can give the more they will satisfy not only the signatories to the amendment but the future employees of Public Health England who are to transfer as scientists to the new organisation.

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[Lord Warner]

I am sorry to interrupt the noble Earl. I waited patiently until he had been through the research arguments but I am still not clear. He said earlier that Public Health England would be master of its own destiny in terms of research. The point that I and, I think, my noble friend Lord Turnberg were making was that, if it comes to a tussle between PHE and the National Institute for Health Research over doing research which PHE considers to be in the public interest but there is no academic partner to undertake that research, will PHE’s mastery of its own research destiny trump the attempt by the National Institute for Health Research to impose partnership working on the research agenda? That is the issue that I was trying to talk about and which I think my noble friend was also talking about.

[Earl Howe]

My Lords, although I understand the noble Lord’s question, I do not think that I can answer it at the moment, and I am sorry to disappoint him. My advice is that we do not think that partnerships will be necessary in all or every case for Public Health England. Whether the NIHR can insist on trumping the operational independence of Public Health England is not a question that I can answer very readily. The main point is that research would not have to be jointly conducted. The Secretary of State has the power to carry it out on his own. That means that, if there were a tussle between two priorities, the Secretary of State could insist that a certain programme should be prioritised. I think that that is probably as far as I can go in answering the noble Lord at the moment.

My noble friend Lady Jolly asked me some general questions about lines of accountability. I hope that she will have gathered from my remarks today that Public Health England will be accountable directly to the Secretary of State in the first instance. Directors of public health will be joint appointments between local authorities and the Secretary of State, although they will be local authority employees and directly accountable to the authority chief executive. It goes without saying that close joint working between PHE and local authorities will be crucial.

My noble friend’s amendment and the powerful way that she has argued for its objectives are a tribute to her and to the noble Lords who have supported her. I believe that I have responded positively to each point that the amendment seeks to establish and that that response can be made comprehensively without amending the Bill. That remains our strong preference. I hope very much that my noble friend is sufficiently reassured by the commitments that I have made today to withdraw her amendment.