Health and Care Bill (Twentieth sitting)

Philippa Whitford Excerpts

Committee stage
Thursday 28th October 2021 Public Bill Committees

[Mary Kelly Foy]

The Government’s prevention Green Paper, published in July 2019, included an ambition to make England smoke free by 2030. Admitting that bold action would be needed, the Government promised further proposals in order to finish the job. Two years on, and with less than nine years to go before 2030, we are nowhere near on track to achieve that ambition. Using Government data, projections by Cancer Research UK show that we will miss the target by seven years, and by double that for the poorest in society. Despite the promise of further action on tobacco, there are no measures to tackle smoking in the Bill. That is a major oversight, which my new clauses seek to address.

The new clauses are based on the recommendations included in the latest report from the all-party parliamentary group on smoking and health, of which I am the vice-chair. They set out a range of complementary measures to deliver the smoke free ambition, which will also significantly increase productivity and reduce pressure on the health and care system. Although the smoke-free 2030 ambition applies specifically to England, all parts of the UK have stated an ambition to end smoking, so I am pleased that members of the Committee from Wales and Scotland support the new clauses.

I will briefly run through the new clauses and why they are necessary additions to the Bill. New clause 29 would give the Secretary of State the power to require tobacco manufacturers to print health warnings on individual cigarettes and cigarette rolling papers. New clause 30 would allow the Secretary of State to require tobacco manufacturers to display a health information message on a leaflet inserted into cigarette packaging, which the Government promised to consider in the prevention Green Paper two years ago. Those are simple, uncontroversial and effective measures that would help deliver the Government’s smoke-free 2030 ambition at minimal cost.

New clauses 31 to 33 would allow the Secretary of State to close loopholes and regulations that allow tobacco and e-cigarette manufacturers to market their products to children and to undermine regulations that are designed to protect public health. New clause 31 would give powers to the Secretary of State to prohibit branding on e-cigarette packaging that appeals to children, such as branding that uses sweet names, cartoon characters and garish colours.

New clause 32 would give the Secretary of State powers to block a shocking loophole in the law that means that, although e-cigarettes cannot be sold to children under 18, they can be given out for free. There is no reason why we cannot seek to rectify that anomaly today. New clause 33 would give the Secretary of State powers to ban all flavouring and not just that defined as characterising. That term is subjective and ill-defined and has allowed tobacco manufacturers to drive a coach and horses through the legislation.

The Government were required by law to review the relevant tobacco regulations to check whether they are fit for purpose, and to publish a report in May 2021, which they have not done. It is time for them to address these egregious loopholes in the regulations, and the Bill is an ideal opportunity to do so. These new clauses are uncontroversial, and would be of clear benefit to child public health. I will therefore seek to divide the Committee on new clauses 31, 32 and possibly 33.

Following on from those new clauses, we must accept that if England is to be smoke free by 2030 we need to stop people starting smoking at the most susceptible age, when they are adolescents and young adults. There is a real and present danger that must be addressed: new figures from a large survey by University College London found a 25% surge in the number of young adults aged 18 to 34 in England who smoked during the first lockdown. New clause 38 would give the Secretary of State powers to raise the age of sale for tobacco products from 18 to 21. That regulatory measure would have the largest impact in reducing the prevalence of smoking among young adults, as demonstrated by what happened in the United States when the age of sale was increased to 21.

Finally, I want to address the issue of funding. The coronavirus pandemic has meant that the need for more investment in public health is greater than ever before. The Government promised to consider a US-style “polluter pays” levy on tobacco manufacturers in the 2019 prevention Green Paper. New clauses 34 to 37 would enable the Secretary of State to regulate prices and the profits of tobacco manufacturers and importers, which could provide funding not only for England, but for the devolved Administrations, with any excess allocated to other vital public health interventions.

I want to express my gratitude to my hon. Friends for supporting these new clauses. I hope the Government will engage with these proposals in a similarly constructive manner with regard to the forthcoming tobacco control plan, ensuring that public health is at the heart of any discussions around smoking and tobacco.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

Obviously, smoking has increased during covid, particularly during the lockdowns, which is quite depressing after some of the progress made in recent decades. This array of new clauses tries to tackle the issue from different angles. New clauses 32 and 38 relate to the age at which someone can purchase, along with other point-of-sale policies. Those issues are all under devolved control, so I have not got involved in those. However, the policy decisions around manufacturing, flavourings, packaging and so on are all reserved, and all four nations of the UK would agree that the biggest single favour anyone can do for their own health is to give up smoking.

As older people and people who have smoked for many years sadly succumb to the diseases we know are caused by smoking, such as heart disease, stroke and cancer, it is incumbent on tobacco companies to recruit a new generation. That is what ornate packaging and childish flavourings are clearly aimed at doing, and they are therefore completely counter to the policies of the UK Government and the devolved Governments.

This is an opportunity to stake the point, move forward and take action to prevent the recruitment of young smokers into cigarette smoking, which will inevitably cost the NHS—indeed the four NHSs—more, as they deal with the health issues over a number of decades, than is raised by tobacco duty. The Government need to stop looking at what they earn from cigarettes and focus on minimising their use. That is the Government’s stated policy, and these new clauses would take that forward.

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to resume proceedings with you in the Chair, Mr Bone. I commend my hon. Friend the Member for City of Durham for her new clauses and the powerful case she made for them, but also for her leadership in the all-party parliamentary group on smoking and health, alongside the hon. Member for Harrow East (Bob Blackman). I know it is a truly impactful APPG and I have always been grateful for my opportunities to go to its sessions to contribute or to listen, as I know Ministers have as well. Reducing smoking and being smoke free by 2030 is a major public health prize. It was a bit disappointing and surprising that there were no tobacco control elements on the face of the Bill, so it is right that we spend a little time trying to change that.

Successive Governments have rightly taken real pride in the reductions in smoking over the past 20 to 25 years. Those reductions have not happened by accident, but through concrete interventions that were sometimes controversial and often challenging at the time, such as the smoking ban, plain packaging and packet warnings—things that we soon afterwards realised were very impactful, and very much the right thing to do. Of course, as the hon. Member for Central Ayrshire says, we have to view this in the context of covid, and there has perhaps been a bit of backsliding on that progress, but that should drive us not to despair, but to redouble our efforts. I hope we can move things forward in the spirit that my hon. Friend the Member for City of Durham suggested.

We have to understand that the gains we have made in recent years come with a caveat. Most of the quitting has been done by people from better-off communities, and the benefits have largely accrued to those communities. We are now at the point where smoking accounts for 50% of health inequalities between the poorest and the best-off communities. If we really are serious about levelling up or whatever we want to call it, health is surely a crucial part of that. We know that smoking accounts for half of that difference, so we really ought to be focusing on it.

Reducing smoking ought to be a major project for any Government, because poorer smokers are just as likely to want to quit as their better-off counterparts, and just as able to do so if they have access to good services. However, we have spent a decade cutting those services in general, but particularly in the poorest communities, so high-quality smoking cessation services—which are so effective—have withered on the vine in many of the places that need them the most.

I will now turn to the new clauses tabled by my hon. Friend the Member for City of Durham, beginning with new clause 29. About one in seven adults smokes. That is about 7 million people, and while health warnings have been displayed on smoking packages for well over a decade, there is evidence that the impact of warnings such as those wane over time. However, the dangers of smoking remain high—between 2016 and 2018, there were 1,167 deaths attributable to smoking in my city of Nottingham alone—so we need to build on the techniques that have worked, with new ones to refresh our under-standing of the dangers of cigarettes to smokers.

There is evidence that dissuasive cigarettes can make smoking less attractive to younger people and non-smokers, and the inclusion of warnings on individual cigarettes, as proposed by new clause 29, is one key way of doing that. Such warnings are already being considered around the world: an in-depth study from France found that warnings on cigarettes increased negative health perceptions, reduced positive smoker image and the perceived pleasure of smoking, decreased the desire to start smoking, and increased the desire to quit. There are therefore signs that such a policy would be impactful.

New clause 30 deals with cigarette pack inserts. Inserting leaflets that contain health information and information about quitting is an effective and cheap way to target existing smokers and help them get support to quit. Those inserts are easy and cheap to implement and, moreover, while the reading of cigarette pack warnings decreases over time, the reading of inserts increases. In Canada, package inserts have been a legal requirement since 2000, and a survey of smokers in Canada found that between one quarter and one third of respondents had read pack inserts at least once in the prior month, and those intending to quit or having recently tried to do so were significantly more likely to have read them. Pack inserts will support and reinforce the impact of other measures that will require more significant investment campaigns to go with them, such as behaviour change campaigns and stop smoking services. They are a really good evidence-based, low-cost addition to such campaigns.

New clause 31 relates to the packaging and labelling of nicotine products. Over the decades, regulation has transformed traditional cigarette packaging, plastering it with warnings and preventing tobacco companies from selling a desirable image of smoking. However, regulations have not kept pace with the less traditional nicotine products, such as e-cigarettes and nicotine pouches. Tobacco companies are still able to sell e-cigarettes adorned with bright colours, cartoon characters and attractive images, as we have heard from my hon. Friend the Member for City of Durham and the hon. Member for Central Ayrshire, and I know that e-cigarette shops in my constituency offer vape liquids branded as vanilla ice cream, slushies and cookie dough, all of which appear targeted at young people, and children in particular.

I am enthusiastic about vaping—it still feels like that is an unfashionable thing to say, but I stand by it. I think vaping is a really good way to help people quit smoking and stay quit, and it is a really important part of a smoke-free 2030. However, it should be regulated properly to help make being smoke free a reality. Data shows that restrictions on the branding of e-cigarettes and refills reduce the appeal of vaping to young people, particularly children, while having little impact on adult smokers’ interest in using these products to quit smoking, so, again, it is cost-free.

[Dr Whitford]

I assume from the hon. Gentleman’s comments that he shares my concern that although vaping is considerably safer than traditional tobacco, as Public Health England reports on vaping show, vaping products still contain nicotine, which is a vascularly active substance. Therefore, we should still be concerned about non-smoking children being recruited on to vaping. We have no idea what decades of nicotine vaping will do to someone.

[Alex Norris]

I do share that view, particularly around children. Our preference would be for them to never start. There should not be packages with cartoons and child-friendly descriptors to develop a market among children. I think there would be a high level of consensus on that.

In that spirit, new clause 32 addresses an incredible loophole, which I cannot believe anybody thinks is a good idea. If the Minister is not going to accept new clause 32, I hope he will say when the issue will be resolved. The idea that you cannot sell e-cigarettes to children but that you can give them out as free samples to under-18s is quite hard to understand. It is time for us to get hold of this simple loophole, which goes against the spirit of the legislation, which is designed to protect children against nicotine addiction. I hope we can get some clarity, either because the Minister accepts the new clause or gives us a clear picture that we will see action very soon.

On new clause 33, about flavoured tobacco products, it again feels like the market is not acting in the spirit of the laws that have been passed. Flavoured tobacco is designed to make products more appealing, especially to younger people. In May 2020, we banned the sale of tobacco with a characterising flavour such as vanilla, spices and menthol. However, companies have adapted to this legal change with new innovations that skirt the law and provide smoking experiences that replicate flavoured tobacco. I can go to supermarket websites and find “green” branded cigarettes being sold, with many reviews stating how similar the flavour is to menthol cigarettes. I do not think that is in the spirit of the law.

In the year from May 2020, Japan Tobacco made over £91 million in profits from menthol brands. Clearly, the law has not worked as we want it to. Moreover, between January 2020 and 2021, a survey of smokers showed that the smoking of menthol cigarettes has not declined, despite the apparent ban, so I do not think the law is working. This new clause would do a good job of closing that legal loophole. If the Minister is not minded to accept it, I would be keen to know what the Government intend to do instead, because I cannot believe that they want laws that they passed, in possession of full facts, to be worked around in that way.

I will take new clauses 34 to 37 as a group, because they create the same thing: a tobacco control fund, paid for by manufacturers, combined with the regulation of tobacco companies’ profits. As my hon. Friend the Member for City of Durham said, when the Government announced their smoke-free 2030 ambition, they promised to consider a US-style “polluter pays” levy on the manufacturers, and included an ultimatum for industry to make smoked tobacco obsolete by 2030. My hon. Friend’s APPG has published a very strong option for how to do that. Ministers could lift and shift that very happily and get on with this. There are real benefits to that.

Action on Smoking and Health do some wonderful work, and I am grateful for its support in my work. It estimates that a comprehensive national, regional and local tobacco control programme—in many ways, we have lost that in recent years—to deliver a smoke-free 2030 would cost the UK about £315 million. That would involve adding back lost services. ASH’s estimate for a levy, based on the model the APPG talks about, is £700 million. This could be a “polluter pays” model, and we would have plenty left over to overturn all those poor public health budget cut decisions taken over the last decade. If the spirit of yesterday’s Budget was to try to rewind and erase the lost decade that we have had in this country, this would be a really good place to do that, and I think that is a good deal.

Of course, the EU tobacco tax directive is no longer a blocking factor, so we have complete agency to act in this area and it is in the gift of the Government, so I am very interested to know how far along the Minister or his colleagues are in the consideration, as they said, of this matter, and when we will see some proposals. Similarly, when will we see another tobacco control plan? That is something that everybody, from local government, public services, the private sector, community and voluntary services and all of us in this place, can organise around. The 2030 goal is a common goal. Pretty much everything that we have said in the new clauses are things that we are of one mind on. We can do something really good for the health of the nation, and I hope to find the Minister in action mode on that.

I will finish by referencing new clause 38, also tabled by my hon. Friend the Member for City of Durham, because I do not want it to look like I have ducked the question. It is important that we actively look at that and consider the evidence. I am perhaps not ready to say that it should be in the Bill, but it should be part of an active conversation in this area and part of a tobacco control plan. I think the Minister may be in a similar place on that, because we know that it is an effective part of the armoury. There are loads of really great things to go at in this set of new clauses, and I hope that he feels the same way.

--- Later in debate ---

[Dr Whitford]

With regard to the free provision of e-cigarettes or nicotine substitutes, the provision that could be amended quite simply by referring to where they are being provided through smoking cessation services, as opposed to where someone is buying them and then dishing them out, or is trying to use them to recruit young smokers. Accessing them commercially is quite different from being given them as part of a public health smoking cessation project.

[Edward Argar]

That is the point I was seeking to make. Smoking cessation services would still continue as normal. The argument from the shadow Minister, the hon. Member for Nottingham North—this is where I might diverge from him, not necessarily in intent but in the timing—is that even if we cannot see this as a problem at the moment, we should act now on the basis of principle. His argument is: “Even if it is not happening, why would we let it happen? We should just close the loophole”—I paraphrase, but I think that is his argument. My counter-argument is that it would be appropriate to look at this, but to conduct further research to develop the evidence base further. Beyond that we have—from 2018, for example—more work to do on vaping first. That is essentially the point of difference.

The shadow Minister might say, “I accept that, but I still think we should do it now.” That is ultimately a difference in positions, not a point of principle about needing to look at this. It is about whether to act now or to do further research. That is the only difference, and the research is needed to evaluate the detailed benefits of the new clause. Also, there is the scale of the issue that we might be tackling. I know that the hon. Gentleman is fond of an impact assessment of the costs as well as the benefits. He rightly, as does his colleague on the Front Bench, the hon. Member for Ellesmere Port and Neston, and you on occasions, Mr Bone—

--- Later in debate ---

[Edward Argar]

New clauses 39 and 40 focus on carers. First, I join the shadow Minister, as I suspect all hon. Members wish to, in recognising and paying tribute to the enormous amount of work that carers, both formal and informal, do. We want to strengthen the system by which carers are supported, and ensure that those receiving care have choice and control over how they access services.

New clause 39 would create an obligation on integrated care boards to collect information, and understand and respond to the needs of carers with regard to their health and wellbeing. The Bill provides an opportunity to ensure the views of carers are properly embedded in integrated care boards. The Bill confers a duty on integrated care boards to promote the involvement of carers, along with those who access care and support, in decisions relating to the prevention, diagnosis and treatment of illness, and care. There are equivalent provisions for NHS England-commissioned services.

Furthermore, the joint strategic needs assessment, prepared by health and wellbeing boards, will continue to have to consider the needs of carers, and that will shape the strategy developed by the integrated care partnership and the plans of the ICB. That means the services commissioned through these routes in the area where a carer lives will have considered the impact on carers in that community. Carers UK has welcomed the clauses for recognising

“the crucial role carers play day in, day out supporting their relatives’ health”,

and it says the clauses

“give carers more of the visibility they need within health legislation.”

[Dr Whitford]

Does the Minister recognise the difficulty in getting unpaid carers to recognise that they are unpaid carers? Particularly during covid, couples may have grown into a caring role without ever thinking of themselves as carers, and therefore they do not seek financial or other support. We need a campaign to try and get people to recognise that they are carers. A project that I was involved in when I was back in the NHS in the first wave used the community pharmacy system to interact with carers who were collecting medicines, and helped guide them to the available support.

[Edward Argar]

I entirely agree with the hon. Lady. There is a huge number of unpaid carers who we know about, and who recognise themselves as carers, but there will be a huge number who, as she says, do not see themselves in that way. They see caring for a loved one as part of their normal life, and as what they do; they do not recognise that they are providing care.

There is also a large, often unidentified, number of child carers. They care for their parents, grandparents and others, but they will not think of it in that way. They just think they are doing their bit to look after mum or dad, or granny or grandad. The hon. Lady is right to highlight the need for all of us—both in government and other Members—to make it as clear as possible that these people are carers and should be able to access support and help. There is support and help available, but people need to understand that they are in that category and are entitled to it. That is a long answer to basically say that I entirely agree with the hon. Lady.

We are not convinced that the provisions of new clause 39 are appropriate for the ICB, as a similar duty to that in the new clause is already held by and imposed on local authorities, so it risks causing duplication. The local authority will be part of the ICB and of the ICP, so we feel that the issue is captured.

Carers already have a legal right to an assessment of their needs from their local authority. Local authorities have a legal duty to meet needs identified through a carer’s assessment where the carer is deemed eligible. In 2019-20—the latest figures I have to hand—376,000 unpaid carers in England were assessed, reviewed, and/or supported. However, the number may well be a lot higher than that figure, which goes to the point made by the hon. Member for Central Ayrshire.

We continue to work closely with stakeholders, care organisations and the wider sector to support carers. We will work with care users, providers and other partners to co-develop more detail on our plans for the reform of adult social care. We will publish further detail of our plans for reform in a White Paper later this year, building of course on the strong foundations of integration we are setting in this legislation. The shadow Minister, the hon. Member for Ellesmere Port and Neston, would have been disappointed or concerned about me if I had not said that, and would have wondered what was going on.

New clause 40 introduces a definition of carer that includes—this goes to the point to which I have just responded—young carers, parent carers and adult carers. It seeks to bring clarity and to ensure that all carers, regardless of their age or their relationship with the person they care for, benefit from the measures in the Bill related to carers. The circumstances and needs of every unpaid carer are unique. Unpaid carers make a vital contribution to the lives of those they care for, and I know that every member of this Committee would want to put on record a tribute to them. It is important that we continue to work to understand carers’ needs and how to best support them, while reflecting the diversity of carers.

I have already discussed the measures in the Bill designed to promote the involvement of carers. “Carers” in this context should include anyone, child or adult, who cares, unpaid, for a friend or family member who, due to a lifelong condition, frailty, illness, disability, serious injury, mental health condition or even addiction, cannot cope without their support. In seeking clarity and inclusion, it is important that we do not inadvertently exclude groups of carers. The legislation as drafted is based on an everyday use of the term “carer”, and this allows for flexibility and the inclusion of all who provide unpaid care, in any shape or form, to a loved one or friend.

I appreciate, and to a large extent share, the shadow Minister’s intention of strengthening the legislation and seeking to bring clarity, so that those who are entitled to support know it, and can claim what they are entitled to. I want to reassure members of the Committee that we have today heard the concerns expressed about carers. I will take that away and carefully consider the issues, and see if we can continue to address them through the wider work of the Department on carers, and our ongoing discussions with organisations, many of which we deal with as constituency MPs, week in and week out, on their work in our constituencies.

For these reasons, I encourage the hon. Member for Ellesmere Port and Neston to consider not pressing his new clauses to a Division, but I look forward to hearing from him.

--- Later in debate ---

[Dr Whitford]

Many of the labels simply say, “Drink responsibly” or, “Drink aware”, but, as the hon. Gentleman is highlighting, the lack of information on labels introduces quite a complex step of that person having to go and look up the risk of harm or the unit measures. Yet we have just been debating the need to have warnings on cigarettes. Alcohol introduces harm both to the individual and, if they are heavy drinkers, to those around them, and therefore we should be taking this seriously. We have tried to do so in Scotland with measures such as minimum unit pricing, but information to the consumer is the first step.

[Alex Norris]

I am grateful for that intervention. I would certainly not talk down including the very broad messages that the hon. Lady mentions; I know that in an overwhelming number of cases that is available, but, as she says, that is not enough. People are conscious of that message and we should keep reinforcing it, but the jump-off point is, “So what? What am I going to do differently, or what do I need to understand differently?” At the moment, we are not helping them in that process.

This new clause, mirroring clause 127, asks the Secretary of State to introduce secondary legislation to compel the inclusion of this sort of information on products. It is a relatively modest ask, but it promotes informed choice, which in this area would be a very good thing. I do not think we should miss the opportunity to put it in the Bill.

Health and Care Bill (Twenty First sitting)

Philippa Whitford Excerpts

Committee stage
Thursday 28th October 2021 Public Bill Committees

[Justin Madders]

I beg to move, That the clause be read a Second time.

This is another Ronseal new clause: it does exactly what it says on the tin—it seeks to create legal protection for the use of the title “nurse”. The title “registered nurse” is protected, but “nurse” is not, meaning that, legally, anyone can call themselves a nurse. Under current legislation, people could operate under that title even if they had no nursing qualifications or experience, or had been struck off. To protect the public, the title should be limited to those, such as registered nurses and dental nurses, who are registered with professional regulators. That would put it on a level with other titles, such as paramedic and physiotherapist, which are limited to those on professional registers.

The issue of the title of nurse not being protected in law has long caused concern to the profession. There are many examples where the title has been abused. We have seen people campaigning for election calling themselves nurses when they were not—I appreciate that that is outside the Minister’s responsibility, but it shows the power of the title, its significance and the risk we are trying to deal with through this new clause.

Earlier this month, an anti-vaccination campaigner who denies the existence of covid-19 told Nursing Times that she planned to continue to call herself a nurse despite having been struck off by the Nursing and Midwifery Council for putting the public at risk of harm. Professor Judith Ellis, chair of the Tropical Health and Education Trust and former interim chair of the NMC, has campaigned for years for protection of the nurse title, and we commend her for her work. She said:

“It is totally unacceptable that when someone in the UK describes themselves as a ‘nurse’, the patient or their relatives have no way of knowing, or indeed checking, if that individual has the knowledge or skills to safely care for them or their loved ones. The title ‘nurse’ needs to be protected.”

Nursing is the most trusted profession in the UK, yet someone ill or vulnerable could trust a person calling themselves a nurse and that person might be nothing of the sort. NHS England’s chief nursing officer, Ruth May, has committed her support to protect the title of nurse in UK law. She said:

“The protection of a professional title provides assurance that someone using that title is competent and safe to practise”,

adding that she is

“committed to doing all we can to strengthen protection of the public.”

I welcome anything the Minister can say about this issue; I do not know whether the Department is considering it, but I have heard rumours that it might be. We have talked on a number of occasions about patient safety, transparency and openness, and this measure would be entirely consistent with those aims. Can the Minister give us some comfort or confidence that we might be able to make some progress on this important issue?

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I rise to support what the shadow Minister said. It has indeed been an area of contention for many years not only that nurses who have been struck off can use the title but that the title is used loosely. We touched on the same issue when we talked about regulation and about aesthetic procedures: when these titles of doctor, and particularly nurse, are used the public have a perception of what that means. They assume it means a registered and regulated practitioner, and therefore the patient is given far too high a degree of trust in the person simply from the use of that title. It should be a protected title.

[Edward Argar]

As has been set out, the new clause would protect the title of nurse by making it an offence for a person to use that title unless they were registered with the Nursing and Midwifery Council. I entirely understand the intention behind that; as the shadow Minister and the SNP spokesperson have set out, a title such as that comes at any time, but particularly after the past year and a half, with an expectation of the qualifications and duty of care that sit behind it, and brings with it trust. Therefore, it is extremely important that that trust is not in any way abused. I am sympathetic to the intent behind the new clause; I know it is something my constituency neighbour the shadow Secretary of State, the right hon. Member for Leicester South (Jonathan Ashworth), has also spoken about in recent weeks.

The title of registered nurse is protected in law but, as the hon. Member for Ellesmere Port and Neston rightly says, the title of nurse itself is not, given its use across multiple professions, including dental nurses, school nurses, veterinary nurses and so on. As the interim chief nursing officer for Scotland has pointed out, the impact of any change on other groups currently using the title of nurse outside healthcare settings would need to be carefully considered. Quite rightly, the interim CNO said that there is an issue, but it needs to be carefully considered and calibrated.

I am sympathetic to the principle that protection of the title of nurse would be seen as a positive step by the profession, stakeholders and the public. I am also aware of concerns about the potential for confusion in this regard, as highlighted by the petition brought forward by Alison Leary, and I can see the benefit in providing reassurance and clarity to patients and professionals. Given the complexities inherent in making “nurse” a protected title, we need to do further work and gather further evidence to better understand the case for change and the potential impact on some of those other perfectly legitimate professions that use the title.

[Dr Whitford]

I recognise that the term is also used as highlighted—for example, “nursery nurse”. However, veterinary nurses and dental nurses are registered professionals, and therefore that is outwith the group we are talking about. I can see that there needs to be discussion around the more social “nursery nurse”. School nurses are also nurses.

[Edward Argar]

They are, but my point was the difference between registered nurses and just using the title “nurse”. The question is how, in legal terms, we catch that. I accept the hon. Lady’s point that they are all registered nurses. However, we have to make sure that, in drafting, the legislation would not inadvertently catch people who may well be perfectly legitimately registered, as she says, but could potentially be caught if we did not draft or consider the measure carefully.

--- Later in debate ---

[Dr Whitford]

I recognise the importance of drafting, but obviously the new clause is seeking to establish that the title “nurse” could be used only by nurses registered with the NMC, dental nurses and veterinary nurses—so that it could not just be used as a title by someone who is not on the register.

[Edward Argar]

I go back to the point I made: there are some perfectly legitimate professions—where there is an expectation and understanding of what they do and a respect for what they do—who use that title, as she alluded to. That is why we have to think a little more carefully about how we might do that, and whether it is the most effective way of assuring and enhancing patient safety.

Protection of title is only one part of the protection regime; it is important, of course, but there are other parts. We should also look at prosecutions of protection of title offences, which are extremely rare; we need to look at that in the context of how that might be enforced. Part of the reason for that is the availability of offences such as fraud by false representation that carry more substantial penalties including custodial sentences, which, I suspect, are sometimes the mechanism used to prosecute in such cases. Depending on the context in which the title is used, other legal action could be taken against a person, including criminal proceedings, civil proceedings and employment disciplinary proceedings, particularly where the person used the title to gain work or employment. There is also the opportunity to prosecute employers who hold their staff out to be regulated healthcare professionals when they are not.

To give some succour to the hon. Member for Ellesmere Port and Neston, we are committed to reviewing the protection of titles as part of the ongoing Government review of the regulation of healthcare professionals.

--- Later in debate ---

[Dr Whitford]

I wonder whether the hon. Gentleman shares my concerns after leaving the European Union about access for clinicians, and indeed their patients, to the European reference network, which helps to provide advice and treatment and has co-ordinated research, through the European Medicines Agency, into these rare, often childhood, diseases? They can be studied much more easily in a population of 500 million than one of 60 million.

[Alex Norris]

I am grateful for that contribution. It is axiomatic that, if we are talking about diseases that affect small populations in this country, growing the field of people who are affected so that we can undertake better research, trials and treatment can only be a good thing. I hope that the Minister might touch on how he is ensuring that we are not disadvantaged in that way. When we add up the nearly 8,000 diseases, we are talking about 3.5 million people—one in 17, so one person on the Committee, basically—who will in their lifetime be affected by a rare disease. So actually they are not so rare at all. It is really important that we are meeting that group of people’s needs, but access to medicines and medical devices remains a problem, which is why such reporting for rare conditions is so important.

At the moment, approved medicines are available for only 5% of rare diseases and, even where licensed treatments exist, patients can face an uphill battle in accessing them on the NHS. I am sure that most of us will have at least one case of a young constituent who desperately needs medicinal cannabis to treat epilepsy. There is a political consensus that this is the right thing to do, and we ought to do it. That has been a settled matter for at least three years now, but frustratingly it is still not getting through, and that is a pattern across rare diseases. Perhaps that points us to the conclusion that the current assessment process is not quite accounting for the unique challenges presented by rare and ultra-rare diseases.

I do not think that the Minister will want to be drawn on the National Institute for Health and Care Excellence methods review, because we are in that process. I have spoken in multiple debates about my enthusiasm for NICE, and its processes and expertise, but clearly something is missing. My working theory is around evaluation. Again, if we have a small patient population, the data is noisy and there are higher degrees of uncertainty due to the small sample sizes. That leads us nicely to the point that the hon. Member for Central Ayrshire made about trying to grow those pools. At the moment, we are unable to get first-in-class treatments in many cases, which we should want to do something about.

Herein lies the squeeze, as the medicines for rare and ultra-rare diseases are often assessed by processes that were designed for drugs with larger target populations. The statistics are a bit of an apples-to-oranges comparison, which creates a severe disadvantage. The purpose of the new clause is to get the Secretary of State to report generally on how we are ensuring that we are world leading and meeting population need, and then to drill down within that on how we are ensuring that the system for rarer conditions is fit for purpose. As I say, I am conscious that the methods review is ongoing, but I hope that the Minister might at least give us a sense of the general policy direction in this area, and what we might look to do differently in the future.

--- Later in debate ---

[Alex Norris]

I beg to move, That the clause be read a Second time.

I cannot quite remember on what day this new clause was submitted; it is towards the end of the new clauses but not at the very end, so that probably carbon dates it by 10 days or so. Nevertheless, we had some news in this space from yesterday’s Budget. We are in the strange situation of having seen effective early intervention services, such as Sure Start, take a clobbering for a decade, and then getting paid back pennies on the pound and being supposed to feel grateful for it. We are not. Nevertheless, there needs to be a commitment at all levels of Government and local government—and, in this case, integrated care boards—to have a real focus on early years.

The first 1,001 days of a child’s life, from conception to age two, are crucial. Getting things right in this period can determine what kind of life a child has and their health, wellbeing, cognitive function and psychological make-up. During those early years, a baby’s brain grows rapidly, and it doubles in size within the first year of life. As is so well established, child development is influenced by early experiences and environment, which means that it is so important to ensure that little ones in our communities get what they need—care, nurture and support—while ensuring that they are protected from neglect, harm and stress.

As the Government’s strategy in this space recognises, getting things right impacts not just on the lives of our children, but on our entire society. By ensuring that children get what they need at an early age, we can target some of the big issues that we have talked about for the last two months in this Committee: physical and mental health issues, pressures on the NHS, crime and antisocial behaviour, and drug and substance abuse. So much of that leads back to the early stages in life, and this is a matter of established science. There is no doubt that in this country, we are not very good at doing something about that. Six months or maybe even a year ago—time flies—we had a fantastic Westminster Hall debate, led by the right hon. Member for South Northamptonshire (Dame Andrea Leadsom), who chaired a very good review in this space.

There is barely a leaf’s width of disagreement on this issue between right hon. and hon. Members of all political persuasions. The common diagnosis for why we have not made more progress is that we know that such things save public services money in a generation’s time, but we cannot demonstrate that in a cashable savings way that passes Treasury processes. I am afraid that I did not see anything yesterday to suggest that that fight is yet being won, and I hope the Minister and his colleagues are doing everything in their power to argue for early interventions. Frankly, I would argue that for pretty much all Members present, the bulk of the returns will come when someone else is sitting in our seats and our roles are somebody else’s dreams, but that should not stop us acting, because it is so significantly in the national interest and in the interests of our communities.

There are huge inequalities. The most basic health statistic is that a child born in my city will live for seven fewer years than one born in the City of Westminster—never mind the yawning chasm of almost twice that in healthy life expectancy. That is the result of smaller inequalities that all add up to different life paths: family income, financial stress, smoking and alcohol use, and access to care and services. We know that the 1,001 critical days from conception are the moment to offer really good-quality support. Families receive support from a wide range of services, including maternity, health visiting and early years, and perhaps children’s social care, mental health and paediatrics.

As well as the inequalities, there is complexity. I have mentioned five different organisations with five different uniforms, five different organisational plans and five different organisational cultures. Someone has to pull that together. We have been told throughout proceedings on the Bill that that is exactly what integrated care partnerships are here to do, so let us put a responsibility on them to do so, and to have a plan. I dare say—the Minister might say this himself—that they are more than likely to want to do that themselves, and that would be a very good thing, but I do not think we can allow variance. This should be important for everybody and all footprints should be doing it, so that the first 1,001 days are given priority in new health systems. That would have a significant impact on the long-term health and wellbeing of our country.

[Dr Whitford]

I rise in support of the new clause. It is important to shift the narrative from what is often a structural focus on the NHS, and catching people when they fall, to looking at wellbeing and population to allow people to be healthier and live higher-quality lives for longer.

The hon. Member for Nottingham North mentioned the slowing down of improvement in life expectancy and the variation in life expectancy, but the bigger issue is the failure to improve healthy life expectancy. The 20 years of unhealthy life expectancy faced by many across the UK, particularly in more deprived areas, put pressure on the NHS, and we have seen that come home to roost over the last decade.

A lot of those health issues, or unhealth issues, are laid down in childhood. I am vice-chair of the all-party parliamentary group for health in all policies, which conducted an inquiry into the impact of child poverty. A figure from the Faculty of Public Health that has stayed with me is that the UK loses 1,400 children a year as a direct result of poverty, including by immature birth, small birth weight, foetal alcohol syndrome, fires, road traffic accidents, alcohol and drugs, violence and suicide. That is the number of students in a large secondary school, and if the roof of a large secondary school were collapsing every single year, we would do something about it.

Often, the time to do something about that is in the 1,001 days from conception forward, as the hon. Gentleman said. That means looking at maternal health and nutrition, which is why the early years collaborative in Scotland led to the Best Start grants to mothers and children at birth, on entering nursery and on entering school.

One internationally used measure on the health of our youngest children is infant mortality—death perinatally or in the first year. In 2014, England and Scotland had the same rate of 3.6 per 1,000 live births. In Scotland, we have managed to drive the rate down to 3.2, but in England, it is currently at 3.8. In some poorer areas of the UK, the rate is worse than in parts of the global south and the developing world. That is a brutal statistic.

We talked yesterday about maternal and infant deaths, but this also relates to the attainment gap and other issues faced throughout life by those who struggle in childhood. Investing in early years saves money in the long term. That might be the pitch to the Treasury: if we gave more children a decent start in life, fewer would struggle in the education system, fewer would struggle to get jobs, and fewer would be trapped by addiction or caught in the criminal services system. Instead of picking up the pieces later through the NHS or other public services, surely we should be investing in the best start in life for all our children.

[Edward Argar]

We believe that the creation of integrated care boards and integrated care partnerships represents a huge opportunity to support and improve the planning and provision of services to ensure that they are more joined up and better meet the needs of expectant parents, parents, infants and young children.

We acknowledge that new clause 51 is intended to ensure that the needs of expectant parents, infants and young children are expressly considered by ICBs and ICPs through the development of a tailored strategy. We are working on bespoke guidance, which will set out the measures ICBs and ICPs should take to ensure that they will deliver for babies, children and young people. That will cover the importance of the ICP integrated care strategies having measurable objectives for babies, children and young people.

The strategy must also set out how assessed needs for the area are to be met. The Department is working with NHS England and NHS Improvement and the Department for Education on the drafting of this bespoke guidance, and we will work with stakeholders in the upcoming months on refining the guidance prior to publication.

As per our general approach to the Bill, although we are clear about the statutory functions that will be conferred on ICBs—as they are currently on clinical commissioning groups—including on children’s safeguarding and special educational needs and disabilities, when it comes to implementation, we want to provide local areas with the flexibility to determine what will work best for their systems. We fear that over-prescribing system approaches in the Bill will make it harder for systems to design the approaches that will work best in their areas. That is why we believe the wording, as currently drafted, is appropriate.

--- Later in debate ---

[Alex Norris]

I beg to move, That the clause be read a Second time.

In February 2018, the noble Baroness Cumberlege was asked to carry out the independent medicines and medical devices review into the experiences of people—generally women—who had been treated with Primodos, sodium valproate or pelvic mesh implants. In very many cases, they had to battle for decades to be heard. They were gaslit, belittled and ignored at every turn. Some of the ways in which they were treated were just astonishing, and so upsetting. However, through that report they got their deliverance. They were vindicated: what they said had happened to them had happened to them—even though they had not been believed—and it should not have done. Acknowledging the pain that had been caused to these families was a big start in helping them come to terms with what they had experienced.

The excellent review team set out nine ways in which things would be made better, or at least a little bit easier, for those people now, and to try to prevent future incidents. Those nine recommendations should have been accepted in full. Instead, we have seen from the Government a pattern of accepting things that I suspect they were already keen to do, but otherwise taking the families for a long walk when it comes to the harder and more significant things that the Government clearly do not want to do. In aggregate, it has become a refusal to do right by these families, and that is a really poor decision.

This new clause seeks to attend to that by saying that within six months, the Secretary of State must publish a report containing a plan for the implementation of the recommendations in full. Of the nine, only four are being implemented in full and, frankly, that is not good enough. I am pleased that there has been an apology, and the families were too. I was also pleased to see legislation for a patient safety commissioner. We were lucky that the Medicines and Medical Devices Act 2021 was in front of us at that time, because it gave us a moment to introduce that and a devices database, which the hon. Member for Central Ayrshire and I pursued during proceedings on that Bill. Those things have a bit further to go, but they were significant, as were the promises of cultural reforms at the Medicines and Healthcare products Regulatory Agency. We will wait to see meaningful change there. With the remaining five recommendations, there has been a mixture of in-principle acceptance, partial acceptance and, in some cases, outright denial. I do not think that is good enough, and the new clause seeks to change that.

These are the bits that we are still missing. Recommendation 3 calls for:

“A new independent Redress Agency for those harmed by medicines and medical devices”.

The Government responded that they did not accept that. The problem is that families are therefore left to rely on conventional civil and legal routes. Those are expensive and long, and who do the families sit against in the courtroom? Very big companies with very big legal teams, so there is a significant imbalance. The whole point is that, as recommendation 3 goes on to state:

“The Redress Agency will administer decisions using a non-adversarial process with determinations based on avoidable harm looking at systemic failings, rather than blaming individuals.”

That would have been really significant, but we do not have that. Instead, families are left stuck in the court system for as long as they can stick at it.

Recommendation 4 states:

“Separate schemes should be set up for each intervention—HPTs, valproate and pelvic mesh—to meet the cost of providing additional care and support to those who have experienced avoidable harm and are eligible to claim.”

Again, the Government do not accept that. These families meet exceptionally challenging needs day after day. Some have lost their house; some have had failed relationships; and all struggle with mental health, or certainly distress, as a result of what has happened, and we are not doing enough to help them. This should have been done, if not on day one, at the very first possible moment for support, rather than us expecting them to fall back on the conventional system, as they did. What have they gained by their vindication?

Recommendation 5 states:

“Networks of specialist centres should be set up to provide comprehensive treatment, care and advice for those affected by implanted mesh; and separately for those adversely affected by medications taken during pregnancy.”

The Government accept that only in part; it is particularly with regard to valproate that those affected will not get those centres. I will listen carefully to the Minister’s justification for that. I understand that valproate is different, in the sense that its use is ongoing in certain situations where that remains medically appropriate. However, the lack of specialised knowledge is a real issue. If there is not specialisation, we need a real sense that there is a universal step change in knowledge and experience in this area to give us greater comfort.

Recommendation 8 states:

“Transparency of payments made to clinicians needs to improve. The register of the General Medical Council (GMC) should be expanded to include a list of financial and non-pecuniary interests for all doctors”.

That is very basic. There were relationships between clinicians and big drug companies that were unknown to the families when certain treatments were suggested. The Government accept the recommendation in principle, but will not use the General Medical Council model, preferring to go practice by practice. That is big mistake. Our constituents can go to one easy, obvious place—our website—to find out our exact financial interests if they have concerns or just want to know them. We ought to be able to do the same, through the GMC, when it comes to doctors. Again, there is an unwillingness to move quickly enough to resolve these issues.

Finally, it remains surprising that the Government have not availed themselves of recommendation 9. I will listen carefully to the Minister’s response on this point. It states:

“The Government should immediately set up a task force to implement this Review’s recommendations. Its first task should be to set out a timeline for their implementation.”

Of course there should be a taskforce, including families and the broader aspects of the state, to do that. Again, the Government say they accept the recommendation in part, but the reality is that they have no plans to establish an independent taskforce. There is a patient reference group, and we of course support its work, but it is not in control; it is not at the table. The problem is that these things were done to families; they had no agency and no say. The solutions that come out of this cannot follow that same model. Once again, families are having things done to them, rather than being worked with.

I meet representatives of these groups frequently, as I know colleagues do. I like meeting them. These are good people who have been through incredible things and have extraordinary dignity and courage, not to mention that they are brilliant campaigners. They are probably sick of seeing me, and I would rather see them in happier circumstances. When I ask them what is next, they say that they are campaigning again. They campaigned over many years to be listened to, and were proven right in the most absolute terms, but they feel they have to campaign again to get the justice that should flow from that report and from their vindication. What an extraordinary demonstration of how we have let them down. They fought for too long. It is time that we stood up for them and did right by them by implementing the recommendations in full; otherwise we fail them again. I hope to hear of significant progress from the Minister.

[Dr Whitford]

I support the new clause. For a surgeon, knowing that an operation that they were trained to carry out, and performed in good faith, has caused harm is one of the worst things that can happen. I remember how I felt in the mid-1980s when we began to realise the impact of contaminated blood. It had a huge impact on how I operated. I used special diathermy techniques to avoid blood transfusion in all elective circumstances, and that is something I carried on throughout my time doing breast cancer surgery.

In this case, there may well have been doctors who were dealing with device companies and so on—that regulatory declaration is absolutely needed—but there will be a much greater number of surgeons who were using a device that was licensed and was given to them as the correct, safe device to use.

I find it shocking that although the report was commissioned by the Government, they have accepted fewer than half of its recommendations. The others directly relate to patients who have suffered harm, whether that is the women who had vaginal meshes inserted, or the mothers of children who were harmed by the use of Primodos or sodium valproate.

Sodium valproate is still an excellent anti-epileptic and will not disappear, but it is not a matter for specialist centres. It is so widely used that it is critical that within primary care and on product boxes it is made clear that women who are looking to conceive or who are of child-bearing age should not be left on Epilim; that should be discussed with them right from when they are young teenagers, so they can think about the impact later on.

The recommendations that have not been accepted are not to do with reorganising licensing, or a yellow card system; they are all recommendations that relate to women. That is really disappointing. The redress for them—the setting up of specialist centres to try to repair the damage as far as possible—is what is not being provided. The Government should look at the fact that those are the recommendations they have skirted around and not accepted. These women and the children affected have gone through enough.

[Edward Argar]

It is quite right that we articulate once again the suffering that was the genesis of the review. The hon. Members for Nottingham North and for Central Ayrshire spoke with passion on the issue. We are talking about procedures that had a dreadful impact on individuals and their families.

The Government recognise the effect that the independent medicines and medical devices safety review, and the lived experiences behind it, has had on all the women and children impacted, and their families. That is why, on the day after the review was published, the Government issued a full and unreserved apology on behalf of the health and care sector for the time it took to listen and respond.

I am grateful to Baroness Cumberlege for all the time and effort she put into her report. As hon. Members will be aware, that sentiment was expressed at the time by the Minister responsible for responding to the report, who is now of course the Secretary of State for Digital, Culture, Media and Sport.

The Government published our response to the review on 21 July this year, after carefully considering each of the review’s nine strategic recommendations and the 50 actions for improvement in greater depth. Our response set out an ambitious programme for change that, at its core, is focused on improving patient safety.

The Government accepted the vast majority of the strategic recommendations and actions for improvement. I reassure the Committee that we are committed to making progress on all accepted recommendations at pace. That is why, in our response to the review, we committed to publishing an update on our progress in implementing the accepted recommendations 12 months after the initial response. I know that hon. and right hon. Members from across the House will rightly vigorously continue to hold the Government to account on that. I reassure them that the Government take very seriously our responsibility to implement the accepted recommendations at pace.

Many of the recommendations will introduce large-scale changes to patient safety, and we have a duty to get their implementation right. I hope it will encourage hon. Members to hear that the Government have already made strong progress on implementing many of the accepted recommendations of the review. I will turn to those in more detail, because I think it is important that we update the Committee and the House.

--- Later in debate ---

We recognise the importance of effective public involvement when it comes to addressing equalities considerations and taking action to reduce health inequalities. There are already duties, in both existing and proposed legislation, on ICBs and NHS England to involve patients and the public in healthcare planning. We are producing new statutory guidance to support ICBs and NHS England in involving people, including those with relevant lived experience, throughout policy planning and delivery.

[Dr Whitford]

rose—

[Edward Argar]

The hon. Lady may be about to agree with me; she is welcome to do so.

[Dr Whitford]

When we debated vaginal mesh, Primodos and valproate in the Chamber, one of the big issues that came up—I certainly spoke about it—was the issue within medicine, with doctors. What work will be done with Health Education England and medical schools to ensure that young student doctors, and doctors in early training, recognise this terrible dismissal of women’s concerns about all aspects of their health? The menopause is a classic, but there are many others.

[Edward Argar]

The hon. Lady is absolutely right to raise that. We need to get across, loud and clear, to our future clinicians almost right from the start—from their training and early education—the message that everyone’s health concerns matter equally, subject, obviously, to clinical decision making. I hope and believe that HEE and others will engage with that process in the context of the women’s health strategy. We do not want it to be a document that just sits on a shelf, or want it to look at issues in a siloed way; it should look at them across the piece. Over many years, there have been strategies on particular aspects of health. In the strategy, we seek to bring together a whole range of factors, so that we can look at how women interact with the healthcare system, and how to meet their needs holistically.

We want to maximise the independence of ICBs, so that they function in the way that best suits the needs of their patients and their organisations. We are therefore keeping their legislative obligations proportionate; that brings us back to a debate that the Committee has had multiple times about the permissive nature of the legislation. I agree that appropriate representation is essential in healthcare planning. I fear that the new clause is overly specific and not necessarily in keeping with the obligations on ICBs set out in clause 19 on general functions.

The Bill already puts obligations on ICBs that will help to ensure that relevant groups are fully represented and consulted in decision making. In particular, ICBs will need to ensure that they have taken appropriate advice from a broad range of those with professional expertise. As the work of ICBs will inevitably cover reproductive health, that requirement ensures that relevant groups are included in this work. Furthermore, as we discussed in the opening sittings of the Committee, local areas will have the flexibility to determine any further membership of the ICB beyond the minimum for which we have legislated. That discretion will allow local areas to ensure appropriate representation.

On working in partnership with the non-profit sector and local community groups, I recognise the essential role that those organisations and groups play, and agree that they should be involved in strategic decision making where appropriate. Each ICB and their partner local authorities will be required to establish an integrated care partnership. We expect the ICP to bring together organisations from across health, social care and public health, and representatives from wider areas where appropriate. That could include organisations from the voluntary and community sector. The ICP will be tasked with promoting partnership arrangements and developing a plan to address the health, social care and public health needs in its area. As that will include reproductive healthcare needs, we would expect relevant local groups to be represented. The ICB and local authorities will have to have regard to that plan when making decisions. That will enable more joined-up planning and provision, both in the NHS and by local authorities, which will enhance the services that people receive.

Existing and proposed duties already address the concerns underlying the new clause and ensure effective public involvement. We have concerns about imposing additional duties on individual services. Our approach enables local NHS bodies, supported by national guidance, to decide how best to involve patients and the public in the planning of commissioning arrangements, and in developing and considering proposals to change them, so we are not convinced that the additions in the new clause in respect of reproductive healthcare are necessary.

[Alex Norris]

I beg to move, that the clause be read a Second time.

I keep going, Ms Elliott. Again, you can perhaps file this under gluttony for punishment. I do not intend to talk for very long about this new clause. I am sure that the Minister will be able to give us comfort easily on the point of new clause 54. It is just to develop the point about data one last time before our carriages turn into pumpkins.

A specific part of the Bill deals with data, and we had some very good conversations at that point. I will not repeat any of that. I will explain what I am chancing my arm at in new clause 54. I talked previously about systems and the problems with systems talking to one another. Here, we are asking integrated care boards to develop

“single whole-system IT systems”.

That is perhaps at the top end in terms of what should be aspirational and what is in fact achievable, but I do want to pursue the point a little.

Data is critical, as we have said before, in driving improvements. NHS England’s own website talks about the need to use it to improve services and decision making, to identify trends and patterns, to draw comparisons, to predict future events and outcomes and to evaluate services. But to do that, we have to have some sense of consistency. I will not repeat the arguments around the General Data Protection Regulation—we had those at length—but that shows the challenges if we do not get it right.

Going down to ICS level, if we are going to have a system that really does harness all the information, we need systems that talk to one another. Therefore, the prescription in proposed new subsection (a) is that it is a single system. As I have said, that is the stretch target. What I am hoping to get from the Minister is a sense of where he thinks this will land. Is it the same organisations using the same systems but trying to find a new way to do them, or will there be some new, novel approach to how we support footprints to do that? It is an established fact that data is going to be really important to local systems, so we want to give them the fairest wind to make the best use of it that they can.

[Dr Whitford]

On new clause 54, I just want to speak to proposed new subsection (d)—the use of data to assess performance against outcomes. Between 2009 and 2019, there was really no significant national audit of quality of breast cancer services in England, even though some of that audit had been carried out in previous years. Part of that was due to the fracturing of the system from the social care Act. There might be only one breast unit within an area, and quality was left to commissioners. How can commissioners measure whether a local breast unit is treating people properly or achieving the aspired-to targets?

In Scotland, 19 of the commonest cancers are audited; I was involved in developing the breast cancer standards in 2000, and they have been updated many times since. They are assessed annually with an annual peer review conference, where clinicians will openly discuss the challenges they face and therefore will share the solutions many of them have come up with. The clinical things that we know will affect the survival and outcomes of our women in the future are all set as national benchmarks. It is important that, while data would be collected locally, it is benchmarked against national standards.

The Getting It Right First Time project was restarted in England a few years ago but, to my knowledge, although the Getting It Right First Time for breast cancer report was completed at the end of 2019, I have not seen it published. That appeared to be due to the election in December 2019; perhaps the Minister can clarify whether the breast cancer GIRFT report has now been published, when it might be published and what other GIRFT reports have come out.

The problem is that, even if that report were published now, two years after its completion, it would largely be based on data from 2018, and therefore clinicians would shrug their shoulders and say, “Out of date.” It is important that data is used in a timeous manner to audit as quickly as possible, so that the audit loop can be closed and services improved. Having led on this process in Scotland, I saw the change in standards between 2001, when we began the first assessment, and 2005, and it is an incredibly satisfying, not frightening, thing for clinicians to see year on year the quality of care delivered by their unit driven up. There must be national standards, but local audit.

[Edward Argar]

This new clause would create an obligation on ICBs to develop system-wide data-sharing IT systems. It would also require them to set and report on targets linked to outputs from this system. I recognise the importance of effective IT systems for the efficient delivery of services and for holding systems to account. However, we must set that against seeking to maximise the independence of ICBs to function in a manner that best suits the needs of their patients and organisations.

The obligations set out in the Bill are designed to establish a framework which ensures that ICBs fulfil their functions properly, while granting them as much discretion as possible in how they do so. The provisions in the Bill strike the balance between conferring the necessary duties and functions on ICBs to operate safely and effectively, and avoiding being overly prescriptive in any specific area. By placing too many statutory duties on ICBs, the risk is that innovation and locally led solutions may be stymied and focus may be taken away from their primary function of arranging for the provision of health services.

Of course, ICBs should be committed to improving patient pathways. However, we believe the duties already set out in the Bill are sufficient to ensure this happens. Further to the requirements set out in the Bill, there are already specific relevant provisions elsewhere in legislation. Section 251B of the Health and Social Care Act 2012 places a duty on certain health or social care organisations, which would include ICBs, to share information about an individual with certain persons where this will facilitate the provision of health services or care to the individual and is in the individual’s best interests.

In addition, there is significant work already under way on data strategy, which will have a direct impact on ICBs. The data strategy “Data Saves Lives: Reshaping health and social care with data” sets out commitments to transform the way that data is used across the health and care system, giving patients control of their health data and enabling staff to save more lives through improved care and treatment. It recognises that ICBs will help the NHS to join up data and delivery more seamlessly, working side by side with local government, third sector partners, and the wider health and care system to address long-term challenges, and sets out that each ICB will be expected to use digital and data to drive systems working, connect health and care providers, improve outcomes and put the citizen at the heart of their own care.

The data strategy was published in draft for engagement in June and a final version will be published by the end of the year. It sets out a range of commitments to ensure that health and care professionals have the data they need to provide the best possible care, that local and national decision makers are supported with data, and that data for adult social care are improved. It also includes commitments on every ICB having shared care records in place, and commitments in relation to data sharing between NHS organisations and supporting the underpinning infrastructure in order to ease data sharing.

--- Later in debate ---

[Edward Argar]

New clause 57 seeks to commission, as the shadow Minister has said, a new cancer strategy and to designate a Minister or appoint a national lead with responsibility for enacting its implementation. The Government’s current cancer strategy is incorporated in the NHS long-term plan, published in 2019. That plan sets out ambitions that by 2028 the proportion of cancers diagnosed at stages 1 and 2 will rise from around 54% to 75% of cancer patients, and 55,000 more people each year will survive their cancer for at least five years after diagnosis. The shadow Minister is right to highlight the importance of the issue as something that touches everyone in some way, directly or indirectly. In the midst of the pandemic last year, I lost my uncle to cancer, and I suspect families all over the country are experiencing something similar among their family and friends. That is in the nature of the disease that we are talking about.

The NHS long-term plan contains a series of commitments to support the ambition. It focuses primarily on fast and early diagnosis, raising greater awareness of the symptoms of cancer, lowering the threshold for referral by GPs, accelerating access to diagnosis and treatment, and maximising the number of cancers that we can identify through screening. That ambition was intentionally set at a stretching level. Achieving it requires material progress in all of the long-term plan’s activities as well as successful innovation. The covid-19 pandemic has made the ambition even more challenging because of the additional pressure it has put on the NHS. It is still too early to assess the extent of the pandemic’s effect on that ambition in the long term. We remain absolutely committed to the need to prioritise earlier diagnosis to improve cancer outcomes. This ambition was strongly supported by the many cancer charities that worked with us to agree the priorities for the NHS cancer programme, and I pay tribute to them all.

I understand the intention behind the new clause. The covid-19 pandemic affected all NHS services in creating an environment unforeseen at the time by the long-term plan. In response to the pandemic, NHS England and NHS Improvement set up the cancer recovery taskforce, which provided advice and guidance on the national strategy for the recovery of cancer services. It monitored progress against the aims of restoring demand, reducing waiting times and ensuring sufficient capacity for cancer diagnosis and treatment. The taskforce published the cancer recovery plan in December last year, which fed into NHS operational and planning guidance outlining how the NHS would return to its pre-pandemic cancer performance within the long-term plan. It is thanks to the taskforce and forward planning that the CQC’s “State of Care 2020/21” report says that cancer services have achieved the best response and recovery, generally closing the gap in access on pre-pandemic levels more than any other area, although it notes that this still leaves a large backlog, which the recovery plan is focused on tackling.

The long-term plan commits NHS England and NHS Improvement to speed up the path from innovation to business as usual, spreading proven new techniques and technologies and reducing variations. I therefore consider the new clause, while it covers an important issue and quite rightly draws it to the attention of the Committee, not strictly necessary, because an ambitious cancer plan is already embedded in the long-term plan, with clear plans in place to support the recovery of cancer services from the pandemic specifically. We are fully committed to the actions within these plans and to seeing the long-term plan to its conclusion.

[Dr Whitford]

The Minister has not mentioned the workforce, specifically in radiology, which is very much the central specialty in diagnosing cancer. The data show that, once someone has been recognised as a cancer patient, they are still being treated relatively quickly—as he highlights, there is a shorter gap—but the problem is actually diagnosing someone, and the radiology workforce has a drastic shortage.

[Edward Argar]

I am grateful to the hon. Lady, who is distinguished in this field herself, from her previous career. She quite rightly highlights the importance of the workforce. Since 2010, in both radiology and radiography, there have been significant percentage increases in the workforce of those specialist professions. However, she is right to highlight that, while we have seen a significant percentage increase, in absolute terms we still need to do more to grow those professions. We have plans in place to do that, but that is a slow task; it can, in some cases, take up to 10 or 12 years to become an experienced specialist in that field.

On those increases since 2010, the Government would argue that we put measures in place, but it is also important to recognise that the previous Labour Government were working on this as well, hence the pull-through; those radiologists and radiographers did not magically appear immediately after 2010. There were programmes in place before and after that, so it is right that we recognise the contribution of the Opposition when they were in Government.

Finally, the new clause also seeks to place a Minister or national leader in charge of that new cancer plan. My ministerial role includes responsibility for elective recovery and recovery from the pandemic—our plan to tackle those waiting lists. As the shadow Minister knows, my hon. Friend the Member for Bury St Edmunds (Jo Churchill), the former Under-Secretary of State for Health, who briefly sat on this Committee, had responsibility for cancer services specifically, as does the new Under-Secretary. Dame Cally Palmer is the national lead as the national cancer director at NHS England and NHS Improvement. She has a distinguished career as chief executive of the Royal Marsden Hospital in parallel. We are jointly responsible for the current cancer plan. It is therefore unnecessary to include that new duty when we already have those accountabilities.

I will move on briefly to new clause 64, which we are considering with new clause 57. It seeks to legislate for an additional duty on the Secretary of State to publish data on cancer waiting lists, cancer diagnoses and action being taken to reduce the number of patients waiting for cancer treatment in England. Again, I understand the intention behind the new clause. Cancer is one of the greatest challenges to people’s health, as we set out. I would like to highlight first the fact that the Government are already delivering on the request for monthly publication of cancer performance data. Ensuring transparency of data is a priority. Each month, we publish official statistics on waiting list data, including the number of patients who began cancer treatment and waited longer than 62 days for treatment. NHS England also publishes monthly management data on the number of people currently waiting longer than 62 days for diagnosis or treatment. The new clause calls for data that is very similar to what is already published, and we therefore consider that it would be duplicative.

Secondly, on the request to publish predictions—that is not something that is currently done. Doing so would likely result in unhelpful poor-quality assumptions or modelling that could lead to expectations or an understanding that is not reflected in the reality of the data that comes through. While we look at all data sources internally, it would not be in the best interests of scrutiny and, potentially, patients to publish poor-quality predictions with a limited confidence factor.

Thirdly, there is no evidence of need. Following the success of campaigns such as Help Us, Help You, we have seen the public seek medical attention for symptoms that might be cancer, while cancer referrals from GPs have been at record levels since March. At the same time, the NHS has been delivering high-quality and innovative solutions to improve cancer care and treatment. We have announced funding for elective recovery, including cancer services, of £2 billion this year and £8 billion over the next three years, which will increase activity and deliver millions more checks, scans, procedures and treatments. We will continue to publish and review the monthly official statistics to monitor progress.

Finally, on the request for the Secretary of State to publish a report every six months on the actions taken to reduce the number of patients awaiting cancer treatment, I should state that the NHS has already undertaken extensive work to reduce the number of patients waiting for treatment and to continue progress in delivering the long-term plan ambitions for cancer. We will publish the elective recovery delivery plan later this year, which will set out how the NHS will deliver increased elective capacity and how cancer patients will be prioritised for access.

Furthermore, the NHS cancer programme already regularly reports on progress through both NHSEI and DHSC governance structures, through publication of monthly data on cancer waiting times and through regular communications products. We would therefore argue that the new clause is duplicative. While I assure the Committee that we are taking urgent action to reduce cancer waiting lists, we consider the new clause to be unnecessary.

Health and Care Bill (Eighteenth sitting)

Philippa Whitford Excerpts

Committee stage
Wednesday 27th October 2021 Public Bill Committees

[The Chair]

Before we resume, it might be helpful for me to give the Committee a few preliminary reminders. Please switch all electronic devices to silent. No food or drink are permitted during sittings of the Committee except for the water provided.

I encourage Members to wear masks when they are not speaking, in line with current Government guidance and that of the House of Commons Commission. Please also give each other and members of staff space when seated and when entering or leaving the room. Hansard colleagues would be grateful if Members could email their speaking notes to [e-mail].

I remind Members and staff that they are asked by the House to take a covid lateral flow test twice a week if they are coming on to the parliamentary estate. That can be done either at the testing centre in the House or at home.

Clause 130

Power to make consequential provision

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I beg to move amendment 114, in clause 130, page 111, line 15, at beginning insert “Subject to subsection (4),”.

This amendment is consequential on Amendment 115.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 115, in clause 130, page 111, line 25, at end insert—

“(4) Regulations may only be made under this section with the consent of—

(a) the Scottish Ministers insofar as they make provision for any matter which falls within the legislative competence of the Scottish Parliament,

(b) the Welsh Ministers insofar as they make provision for any matter which falls within the legislative competence of Senedd Cymru, and

(c) The Northern Ireland Ministers insofar as they make provision for any matter which falls within the legislative competence of the Northern Ireland Assembly.”

This amendment would require the Secretary of State for Health and Social Care to obtain the consent of the relevant devolved government before powers in this clause falling within the legislative competence of a devolved institution are exercised.

Clause stand part.

Clauses 131 to 135 stand part.

[Dr Whitford]

I rise to speak to amendment 115, which is the main amendment. Amendment 114 is consequential on it. The amendment comes back to the main theme: the clause contains significant Henry VIII powers for the Secretary of State to change the Bill or any Act of the devolved Parliaments relating to it.

When the Minister rises to speak, he will say that the power is only for tiny things such as changing names or tidying up, but the Bill is so extensive that the power to introduce some of the themes and policies contained in it into the NHS in Scotland is something that people in Scotland—and, I am sure, in Wales and Northern Ireland—would not be happy with. There is no limitation to this power.

Again, there is no mention of consulting, let alone consenting. It has been the convention for over two decades that if the UK Government legislate in clearly devolved areas, there should be legislative consent. Before this Henry VIII power is used by a Secretary of State, legislative consent should be sought from the devolved Parliaments in Scotland, Wales and Northern Ireland.

[The Chair]

I call the shadow Secretary of State—sorry, the shadow Minister.

--- Later in debate ---

[Edward Argar]

It is a pleasure to see you in the Chair again, Mrs Murray, and to hear of the inadvertent promotion of the shadow Minister. I am sure it is only a matter of time, certainly if his longevity in his current post and being master of his brief are anything to go by.

I am grateful to the hon. Member for Central Ayrshire for raising this matter. I will address amendments 114 and 115 together, as one is consequential on the other, and then I will address the clauses. As the hon. Lady rightly says, she has raised this matter with me not only in this Committee but outwith it. I would have been surprised had she not wished to air it in Committee, which is exactly what we are here for.

The amendments would require the Secretary of State to seek the consent of Ministers of the relevant devolved Administrations before making a consequential amendment to any matter that falls within the competence of the devolved legislature. Provisions such as clause 130—she suggested I might say this—are perfectly common in UK Acts of Parliament, and we believe they remain within the spirit of the devolution settlement. The UK Government’s clear position is that, in and of itself, clause 130 would not give rise to the legislative consent motion process, for reasons that I will set out. We deem that a requirement for the consent of the DAs for its use would therefore be inappropriate.

This power will enable the UK Government to make consequential amendments that might be necessary following the passage of the Bill. That includes most of the amendments that need to be made to secondary legislation as a consequence of the Bill’s provisions As such, amendments were not included in the Bill. There may also be minor changes, such as amendments to names of particular bodies—the hon. Lady knows me and the position that Her Majesty’s Government take on these things extremely well—as a result of measures in the Bill.

It is also prudent to retain the power to amend legislation in the event that anything has been missed. It is important for everyone concerned that we have the ability to make such amendments should they be needed to ensure that the legislation works as intended and that we are able to do so quickly, as required.

As I said, this power is quite common in UK legislation, particularly in a Bill as large as the Health and Care Bill, which—as we know, as we reach the end of the current set of clauses—comprises 135 clauses and 16 schedules. There are many examples of similar powers to clause 130 in existing legislation. Perhaps the one with the greatest relevance, giving the most directly analogous example, is section 303 of the Health and Social Care Act 2012.

As a general principle, it is appropriate that the authority passing the legislation makes the consequential provisions that flow from it, as that authority will be most familiar with the provisions of the legislation and the changes to other legislation that it necessitates. We are seeking legislative consent from the devolved Administrations in respect of a number of provisions in the Bill and we have debated those in recent days, but clause 130 does not, in and of itself, give rise to the LCM process. It is the substantive provisions in the Bill, on which any amendments under clause 130 would be consequential, that do or do not, as the case may be, give rise to the LCM process.

Finally, although this power will enable the UK Government to make consequential amendments to devolved legislation, in practice, any amendments would be discussed with the DAs, officials and legal advisers prior to and throughout the drafting process. These arrangements follow wider good practice and expectations of collaborative working.

[Dr Whitford]

Will the Minister give way?

[Edward Argar]

Yes, but I am not sitting down just yet, so the hon. Lady will have more opportunities to intervene.

[Dr Whitford]

I just remind the Minister that the Cabinet Secretaries in the devolved nations saw this huge Bill the day before it was launched, so although there may have been engagement with officials, that does not suggest that there was engagement with the Governments, which he is saying we should depend on, along with close working.

[Edward Argar]

I take the hon. Lady’s point but, on engagement with officials, I would argue that it is in a sense a matter for officials in the Scottish Government whether they communicate with the Cabinet Secretary. They were not prohibited from doing so. I will not go into the inner workings of the Holyrood machine, just as, I suspect, the hon. Lady would not wish to go into the inner workings of the Department of Health and Social Care. However, that dialogue has taken place since February this year. I appreciate that there has been a slight challenge with that, given the Holyrood elections and purdah, where, although officials can continue to talk, there was rightly a bit of stepping back at a political level so that democracy could take its course. It took its course and the same party continues to run Scotland, so those conversations resumed. My point is that those discussions at official level have been long standing and extensive, I would hope. I suspect that officials have shared elements with the Cabinet Secretary—perhaps not the entirety, but they have been very much engaged.

I hope that that explanation provides some reassurance to hon. Members, although I suspect that it may not. I suspect that the hon. Lady anticipated that explanation, and it may therefore not add further reassurance, but I hope that it does to a degree.

Let me move on to clauses 130 to 135 stand part of the Bill. As we heard in the foregoing debate, clause 130 allows the Secretary of State to make provision by regulations, which is consequential on the Bill. The Bill contains a significant change to the legal framework of the health service. As a result, numerous consequential amendments to other pieces of primary and secondary legislation are required to reflect those changes.

The power is limited to making amendments consequential to the competence of the Bill and is therefore a narrow power. It is, as I said, a standard provision in a Bill of this size and complexity. A considerable amount of secondary legislation will require amendment following the merger of NHS England and NHS Improvement and the change from clinical commissioning groups to integrated care boards. It would not be appropriate to use primary legislation to list all of those secondary legislative changes. Therefore, the consequential power will be used to make such changes in secondary legislation.

The power extends to making consequential amendments to primary legislation passed by the devolved legislatures, because devolved legislation contains references to UK legislation or bodies that may need to be amended in consequence of this Bill. The power applies only to existing primary legislation—this Bill itself, or primary legislation passed during this Session—and therefore future primary legislation may not be amended under the power conferred by this provision.

Clause 131, again, is a common part of a Bill. It sets out the scope of regulation-making powers in the Bill generally and the parliamentary procedure for making such regulations. Subsection (1) provides that regulations made under the Bill may include

“consequential, supplementary, incidental, transitional or saving provision”

and can make

“different provision for different purposes.”

Subsections (3) and (4) set out the parliamentary procedure for making regulations under this legislation.

Clause 132 is also a standard clause concerning financial provision. It simply provides that any expenditure incurred by the Secretary of State under the Act shall be paid out of the consolidated fund, in accordance with the Supply and Appropriation (Main Estimates) Act 2021.

Clause 133 sets out the territorial extent of the provisions of the Bill. It provides that while most of the provisions in the Bill extend only to England and Wales, a small number extend UK-wide. In addition, the bulk of the England and Wales-only provisions—in particular, the vast majority of part 1—will in fact apply only in England, as they concern the health service in England only. The following provisions, listed in subsection (2), extend to England, Wales, Scotland and Northern Ireland: the renaming of NHS England in paragraphs 1(3) and 1(4) of schedule 1; the Secretary of State’s powers to transfer and delegate functions in part 3 of the Bill; and the carve-out of the health services safety investigations board from any legislative provision to require disclosure of information in clause 109.

In addition, the amendments to other legislation made by the Bill will have the same territorial extent as the provision that is being amended. Examples of this include clause 120, which makes provisions about reciprocal healthcare arrangements, and clause 85, which allows provision to be made for the establishment of medicines information systems. A full analysis of territorial extent and application in the UK can be found in the explanatory notes. In earlier sittings, we debated the consequences of the Bill in Wales, Scotland and Northern Ireland and any issues relating to devolution as and when they have arisen. I suspect we may return to those issues on Report, and that their lordships may wish to debate them in the other place.

Clause 134 sets out when the provisions in the Bill will come into force once it has been passed. Most of the Bill will be brought into force on a date to be set in regulations, as provided for in subsection (3). Again, that is a common approach for a Bill of this type, and allows for flexibility. While the Government are committed to implementing the vital reforms to the health service that are contained in the Bill, we will be able to confirm the precise date on which provisions will come into force when it has completed its parliamentary passage—clearly, we cannot pre-empt Parliament. It is likely that it will be appropriate to bring different provisions of the Bill into force at different times.

Finally, clause 135 provides that, once passed, the Bill may be cited as the Health and Care Act 2021. I therefore commend these clauses to the Committee.

[Dr Whitford]

I appreciate that the vast majority of consequential changes that might be made by the Secretary of State would be minor, and most of them would apply to England. However, I am sure the Minister will also understand that the United Kingdom Internal Market Act 2020, which has taken away powers over certain aspects of public health, environmental control, infrastructure and so on, is felt in Scotland as a direct threat to devolution. Such clauses are therefore seen as threatening, in that the Bill is so big that it would allow extensive consequential amendments, particularly—as the Minister referred to himself—under clause 131(1)(b), which allows for

“different provision for different purposes.”

Many Opposition Members find the undefined scope disquieting, and we have seen this extensively over the past three years. I would therefore wish to press amendment 114 to a Division.

Question put, That the amendment be made.

--- Later in debate ---

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to serve again with you in the Chair, Mrs Murray. As I said yesterday, we are grateful for the Minister writing with his explanation of this and the other new clauses ahead of time. That was helpful.

As the Minister explained in his letter, the new clause will simplify and safeguard the process of remuneration where the Government centrally procures vaccines, immunisations or products used to treat a pandemic, as well as other listed products, replacing “special medicinal products” under the previous legislation, in particular when there is significant international demand. That is very topical and we have a rich understanding of it given the events of the past 18 months, so it makes sense to the Opposition and we will not dwell on it long, nor will we press the new clause to a division. However, I seek clarity from the Minister on a couple of issues.

In the Minister’s letter, he cited the risk of wholesalers exporting the products or selling them at a much higher price if they were fed into the conventional supply chain. He characterised that as market failure. Community pharmacies would then be claiming reimbursement from the NHS based on the drug tariff determinations. I do not doubt the risk of that, and it is a foreseeable one, but am keen to hear from the Minister whether he is able to quantify the risk or demonstrate examples in either case. For example, during this pandemic, did that happen at the beginning? What was the cost if that took place? Have there been examples of profiteering preventing necessary products from reaching the patients for which they were intended?

In a second point, I am curious about the arrangements put in place to transition back to normal payment arrangements, once the disease in question is no longer pandemic or at risk of becoming pandemic. Again, I think we would always want restoration of normal circumstances at the first appropriate moment. In his letter, the Minister describes the arrangements as “appropriate”, while the new clause reads:

“Where…the Secretary of State considers that the disease to which it relates is no longer a pandemic disease or at risk of becoming a pandemic disease, the Secretary of State must revoke that provision within such period as the Secretary of State considers reasonable”.

Given that section 164 of the National Health Service Act 2006 also allows the Secretary of State to determine remuneration, that feels a little like the Secretary of State being allowed to mark their own homework. It could leave such measures in place for as long as suits them, rather than for as long as necessary, because the only determination of their need sits with that person. Will the Minister offer some reassurance that the power is for an emergency and is exceptionally limited, and give the Committee some comfort about the oversight and how Parliament perhaps will be given the chance to challenge the Secretary of State, so that the measures are not kept in place for any longer than necessary?

[Dr Whitford]

I have a small comment following on from the hon. Gentleman, who was asking for evidence of profiteering on specials. I was on the Committee considering the Health Service Medical Supplies (Costs) Act 2017 and brought the issue of specials before the Committee. These are often personalised medicines. In Scotland, they are produced centrally by the NHS, but there is certainly huge evidence of profiteering on them within NHS England, with hundreds of pounds being charged for simple ointments. While we may not have evidence on vaccines, evidence of profiteering on specials is long standing.

[Edward Argar]

I am grateful to the hon. Lady for helping to reduce the number of the shadow Minister’s questions that I need to answer. The hon. Lady makes her point well. We saw early on in the pandemic the challenges of a globally competitive market and the incentives and disincentives that can create around supply. I will not go into other aspects of supplies purchased for the NHS during the pandemic, but we have seen what happens when a market becomes super-saturated with demand versus a very limited supply, hence why we believe the steps in the new clause are prudent.

The shadow Minister will be familiar with approach in the new clause; it was used, for example, for covid vaccines, which were centrally secured and supplied directly to pharmacies. While we felt that supply could be justified on the basis of conventions of statutory interpretation that allowed us necessary flexibility in those exceptional circumstances, we think it is appropriate that we put such measures on a proper legal footing—through debate and, if necessary, Division in the House—to future-proof our arrangements. We are not trying to radically alter NHS pharmaceutical service provision or the payment mechanism. The aim is actually to strengthen the legal basis, and indeed the democratic oversight of that legal basis, through this debate in this Committee, for scenarios in which usual supply routes need to be bypassed.

The shadow Minister also raised a couple of other points, mainly about the Secretary of State’s power and Parliament’s role going forward, if I may paraphrase it in that way. I take his point. Judgments will obviously be based on advice from officials and legal and scientific advisers, but to a degree it is in the nature of ministerial accountability that there is an element of subjectivity when the Secretary of State is obliged to make a judgment. I appreciate the point, which I echoed in my remarks, on the need to turn these arrangements off or transition out of them as swiftly as possible, but we can see this pandemic declining and coming back at various times—that is the nature of the lifecycle of a pandemic; there are ups and downs before it finally burns itself out—and therefore the Secretary of State will ultimately need a degree of discretion and subjectivity in their judgment about the right moment, although obviously they will take advice.

On the House’s ability to challenge that, as the shadow Minister will possibly expect me to say, he and his colleagues and other Members will have ample opportunity, not only at Question Time but also, as I have discovered, through urgent questions, which I have answered on behalf of colleagues in the Government on occasion. There are plenty of opportunities for Members to summon Ministers to the Dispatch Box, or through written questions, to challenge and to probe and hold Ministers to account. I hope that hon. Members feel that this is a pragmatic and proportionate measure to address something we have identified in the course of the pandemic as needing resolution, and in so doing to put it on a surer and clearer statutory footing.

Question put and agreed to.

New clause 62 accordingly read a Second time, and added to the Bill.

New Clause 1

Prohibition of virginity testing

“(1) A person is guilty of an offence if they attempt to establish that another person is a virgin by making physical contact with their genitalia.

(2) A person is guilty of an offence if they provide another person with a product intended for the purpose, or purported purpose, of establishing whether another person is a virgin.

(3) A person is guilty of an offence if they aid, abet, counsel or procure a person to establish that another person is a virgin by making physical contact with their genitalia.

(4) No offence is committed by an approved person who performs—

(a) a surgical operation on a person which is necessary for their physical or mental health; or

(b) a surgical operation on a female who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth.

(5) The following are approved persons—

(a) in relation to an operation falling within subsection (4)(a), a registered medical practitioner; and

(b) in relation to an operation falling within subsection (5)(b), a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife.

(6) There is also no offence committed by a person who—

(a) performs a surgical operation falling within subsection (4)(a) or (b) outside the United Kingdom; and

(b) in relation to such an operation exercises functions corresponding to those of an approved person.

(7) For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual.

(8) This section applies to any act done outside the United Kingdom by a United Kingdom national or resident.

(9) A person who is guilty of an offence under this section is liable, on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine, or to both.

(10) The court must refer the case of any person guilty of an offence under this section who is subject to statutory professional regulation for investigation by the relevant regulator.”.—(Alex Norris.)

Brought up, and read the First time.

--- Later in debate ---

No doubt there will be, as an important part of the legislative process, questions about whether the Bill is the best way to do that. I think that all members of the Committee are only in service of a goal here, rather than in service of a particular clause in the Bill, so if there is a better way, we are all ears. However, I do not think that the substantive point—that it is time for action on this issue—is in dispute now. So I hope to hear from the Minister that the Government are ready to move on this issue-

[Dr Whitford]

I rise to support new clauses 1 and 2. Although this issue would be within the devolved space, as a doctor, I think that any practice that is in essence being called a medical practice but is not for the benefit of the patient is unjustifiable. I have to say, I think that extends to X-raying child refugees’ teeth or exposing their limbs to radiation for no clinical reason; I find that unjustifiable. The difference with what these two new clauses deal with is that both involve absolute violation of women and girls, and therefore they are way beyond what we would discuss in other spheres. Although these measures would not apply in Scotland, they are about things that are indefensible, as are other practices that we have heard about, such as female genital mutilation, and so on, which some have tried to disguise as cultural, religious or other practices. Therefore, I totally support the principle and the idea behind these new clauses.

[Edward Argar]

While, on occasion, there has not been unanimity in this House, I share the sentiments expressed by the hon. Lady and the shadow Minister, the hon. Member for Nottingham North.

I am grateful, first to my hon. Friend the Member for North West Durham (Mr Holden) for his private Member’s Bill on this issue, which originally raised it, and I am also grateful to the shadow Minister. I do not always say that about some of his amendments, but I am grateful to him and his colleagues for tabling this new clause, which gives us the opportunity to debate this issue in Committee. I am aware of the work that my hon. Friend has done to raise the issue and I know how strongly the shadow Minister feels about it as well.

First, I want to reassure the Committee that safeguarding vulnerable women and girls is a key priority for the Government, which is why on 21 July we announced our commitment to ban virginity testing in the Home Office-led tackling violence against women and girls strategy, so I think we are of one mind on the principle. I will talk a little bit about the mechanism, the drafting and similar, but it is fair to say that we are of one mind on the principle here. Such tests are, as the shadow Minister said, a violation of human rights and are clearly known to have an adverse and long-term impact on women and girls’ physical, psychological and social wellbeing.

New clause 1, which the shadow Minister tabled and spoke to, gets to the very heart of what we intend to do with regard to virginity testing: ban it. I wholly agree with the spirit of new clause 1; however, I fear that we cannot accept it as drafted. There are several reasons for that, which I will outline. Nevertheless, I hope that in my opening remarks I have reassured him that we are of one mind on this issue, and I will set out the next steps.

By way of further reassurance, may I also say to the Committee that the Government have clear plans to introduce our own legislation, at the appropriate moment and at the nearest opportunity, to criminalise virginity testing? There is work to be done on the drafting and, as the shadow Minister would expect, through discussions within Government. However, I can put on the record in this Committee that it is absolutely our intention to legislate in this space.

While the wording of that legislation will differ slightly from the wording of the new clause, I want to reassure the shadow Minister and other Members that the policy intent and policy outcome will be exactly aligned. Parliamentary drafting is not only an art but a significant skill, and a very technical one. Therefore, we are utilising the best drafting we have available to see how we might achieve the outcome in the appropriate way, subject to cross-Government approvals.

I will also say that the Government absolutely share the shadow Minister’s concerns about how virginity testing is essentially driven by a repressive approach to female sexuality and is a form of violence against women and girls that must be eradicated.

Our concerns about the drafting of the new clause include that it does not specify where in the United Kingdom the offence would apply. It is unclear whether the offence would apply in each of the four nations of the United Kingdom or in England only. That is a drafting technicality, but we think that clarity is important. We are in the process of seeking four-nation-wide agreement on virginity testing in each of the nations, and we are working through options on what that might look like, reflecting our shared view that virginity testing has no place in any part of our United Kingdom, and that the safety of women and girls is paramount wherever they are in the four nations.

Another concern about the drafting is the inclusion of defences. The new clause would provide that in certain circumstances, such as in the course of a surgical procedure undertaken by an appropriate medical professional, an offence would not be committed. The Department’s internal review of virginity testing and hymenoplasty found that virginity tests have no clinical or scientific merit, as the hon. Member for Nottingham North said. There is no reliable way to establish virginity, nor is there any clinical reason to know if a woman or girl is a virgin. As such, we are clear that there is no clinical reason for such an examination or operation to be carried out, and we therefore question the legitimacy of including such a defence in the new clause.

I have set out some of the key drafting challenges in the new clauses and I hope that I have given a flavour of the Government’s thinking. The drafting detail of our policy approach is being carefully considered, with the safety of vulnerable women and girls as our guiding principle. The hon. Gentleman may be reassured that the spirit and policy intention of the new clause will be reflected in future legislation as swiftly as we can draft it and secure agreement to bring it forward.

New clause 2, which was tabled by my hon. Friend the Member for North West Durham and supported by the hon. Member for Nottingham North, seeks to ban hymenoplasty in the United Kingdom. While the Government share the concerns underpinning the new clause—that hymenoplasty is driven by a repressive approach to female sexuality and closely associated with virginity testing, so it is right that we debate the new clauses together—we also have concerns about timing and process.

After the Department of Health and Social Care conducted an internal review of virginity testing and hymenoplasty, the Government announced in the tackling violence against women and girls strategy that they would convene an expert panel to explore the clinical and ethical aspects of the procedure in more detail. The Government’s primary concern after the initial review was that there was no clearly defined consensus on whether hymenoplasty should be banned. As a Minister, I will not go as far as the hon. Member for Nottingham North while a review has been commissioned, or comment on what that review might say in detail. Arguments have been made on both sides. The hon. Gentleman has a clear view, and he may suspect he knows what my view is, but it is right to allow the expert panel to do its work swiftly and clearly and to use it as our evidence base.

It is fair to say that the overwhelming majority of stakeholders are clear that hymenoplasty perpetuates harmful myths about virginity and could constitute a form of violence against women and girls. Concerns have been expressed about whether banning the procedure could push the practice underground. It is important that the expert panel bottoms out those arguments and gives us a clear basis for proceeding. My challenge with the new clause is simply a matter of timing: it is important that we have the report from the expert panel.

To ensure balance and impartiality, the expert panel is co-chaired by Professor Sir Jonathan Montgomery and Dr Pallavi Latthe, both of whom are well respected in their areas of expertise. Both have extensive experience in this area of health ethics, and it is important that we let them do their work and then consider what they say. We will consider their recommendations as soon as they are brought forward, and I hope that will happen swiftly.

The recommendations will need to be fair, objective and based on evidence, so I hesitate to go beyond that in expressing a view on the substance of the new clause until I have that expert panel report before me. It will be presented for Ministers’ consideration, and I assure the hon. Gentleman—I can see where he might go with this—that the intention is to publish it before the Christmas recess. It is a swift piece of work. We will consider the report and, depending on its contents, bring forward legislation if or as appropriate, considering everything it contains in the context of vulnerable women and girls’ safety.

--- Later in debate ---

[Justin Madders]

I beg to move, that the clause be read a Second time.

The Minister referred to my longevity in post, which gives me the advantage of having had this debate with him previously. That does not make it any less important; in fact, the subject has only risen in importance in the intervening period. That is why the Opposition were pleased to put our name to the new clause, which was tabled by the hon. Member for Newton Abbot (Anne Marie Morris).

In March, the Centre for Mental Health reported:

“There are…many areas where parity of esteem has not yet been realised. Mental health problems account for 28% of the burden of disease but only 13% of NHS spending.”

Parity of esteem is the principle by which mental health must be given equal priority to physical health. Many of us assumed that it had always been there, but debates have gone on over the years and, as that figure suggests, it is still some way from being achieved. The founding National Health Service Act 1946 spoke of a comprehensive health service, securing the improvement of both physical and mental health, and the National Health Service Act 2006 said the same. That principle was enshrined in the Health and Social Care Act 2012—at least, the parts of it that remain.

In operational terms, the Government require NHS England to work for parity of esteem for mental and physical health through the NHS mandate. However, there are reports that this requirement falls down at a local level. Certainly as a constituency MP, I have a whole range of stories of people not being able to access treatment in a timely manner, or being pushed around the system with very little effect and discharged from care before it was appropriate, with consequences we can all imagine. It is difficult to overestimate how challenging that is, not just for the individuals, but for the local commissioners when they face competing pressures.

We are not suggesting that the 20% to 30% gap should be closed entirely, but we should be looking to at least get on the road towards delivering true parity. There was a missed opportunity earlier in this Bill when we suggested that one of the mandated positions on the integrated care board should be a mental health representative. Should that have been accepted, the ambitions behind the new clause would have been much easier to achieve. It is about not just getting on the road to financial parity, but actually changing the culture so that disparities can be addressed. It does sometimes seem that mental health is the Cinderella service: the one that gets cut first at the expense of the more visible services where people, understandably, can see if a particular service is shut down.

It should go without saying that it is part of the Secretary of State’s normal duties to promote mental health care, but that is something that has been sadly missing. While we do not want to get into an exact science on spending, we do think that much more can be done in terms of delivery and outcomes. Looking at some of the hard facts, it is clear how far we have to travel. One in four mental health beds has been cut since 2010; just last year, 37% of children referred by a professional to mental health services were turned away. That is a shocking statistic, and I am sure most Members will have similar stories from their own constituencies of people in desperate need of help—young people whose entire lives could change by getting the right help at the right time, but who are not able to access services despite there being an obvious clinical need.

That must change. We need parity to mean something in practical terms. We hope that the new clause would create a shift in culture by requiring the Secretary of State to lay a report before Parliament addressing whether the aim of parity of esteem has been delivered.

[Dr Whitford]

The shadow Minister speaks about people who have been referred to mental health support but are not able to get it. Is there not a need to be moving that further upstream? Young people in particular struggle to access child and adolescent mental health services, and often that is because there is not resilient support within schools and there is no counselling at an early point when they are struggling that might mean they do not need to go to a specialised service. As there is none of that, their mental health may deteriorate until the only option is to join a long queue to attend a hospital unit. Therefore, should we not shift to looking at wellbeing—both physical and mental wellbeing—and the resilience of children and young people who have suffered over the past 18 months?

[Justin Madders]

I am grateful for the intervention—that is a very fair point. I recently spoke to a CAMHS worker who made that very point. One of their frustrations was that problems were not being addressed by early interventions, which only stores up more difficulties for later. Again, that is a symptom of the fact that we do not have parity of esteem, because early interventions can ultimately make a huge difference. We would like to see better access to services and appropriate waiting times being established for a wider range of mental health services, so that people with mental health problems know the maximum time for treatment, as is the case for people with physical health problems. I know the Department has been consulting on that fairly recently, and we think it would be a step change in how we assess and prioritise mental wellbeing.

Parity of treatments is required. Psychological therapies that are approved and recommended by the National Institute for Health and Care Excellence should be delivered as per the NHS constitution, and they should be put on a par with NICE-approved drugs. People need 24/7 access to mental health teams. The A&E presentations that we hear so much about have to be considered—that is probably not the optimum way to deal with such issues. There is a whole range of matters that really could make a practical difference in delivering parity of esteem, and we think that the report proposed in the new clause would be a way to drive through some of those changes.

I will not push for a vote on new clause 3, but we wanted to highlight the urgent need for more support for mental health services throughout the UK. Hopefully, the Minister will at least acknowledge that more needs to be done in this area.

--- Later in debate ---

[Alex Norris]

I beg to move, That the clause be read a Second time.

For Opposition Members in Committees of this type, as we assemble the issues that we prioritise in proceedings, we have to be a bit of a magpie and pinch things along the way, so I want to recognise that this new clause is pinched from the hon. Member for Newton Abbot. I am grateful to her for tabling this and for the level of thought that she put into the amendment, which is a very good one.

Earlier in the proceedings, we discussed integrated care board plans and their responsibility to engage with the Domestic Abuse Commissioner. I was grateful for the commitments that the Minister made. There was a common understanding that the health and social care system has a crucial role in both preventing and tackling domestic abuse and in supporting victims and survivors. That sounds self-evident, but we are not in that position in this country yet, and we could do much better. I hope we can build on that consensus with the new clause, which requires integrated care boards to publish a strategy for the provision of support for victims of domestic abuse using their services and to designate a domestic abuse and sexual violence lead.

I will not repeat the arguments that I made earlier regarding the scale of domestic abuse, but it is worth reiterating top lines, particularly the global statistics from the World Health Organisation, which show that 30% of women have experienced some form of physical and/or sexual violence by an intimate partner in their lifetime. In this country it is one in four, so it is of a similar order of magnitude. The Government’s own estimate is that it costs health services £2.3 billion annually. A common refrain from the sector, with which I meet a lot, as I did before coming to this place, concerns the impact it could make with a fraction of that money if it was put into statutory services or the services that it provides. We should think about that investment model.

In discussing the new clause, I want to take the opportunity to cover something that we have not previously considered, namely domestic abuse, which tends to be against women but also concerns people with disabilities. According to Stay Safe East, disabled people and, most specifically again, disabled women, experience higher rates of domestic abuse than those who do not have disabilities. Abuse against women with disabilities is likely to be more violent and to happen over a longer period before the victim discloses it or can access help. The really sad thing is that if the victim––who is living with a disability––is not heard, there is a significant risk that they will then be sent home by the system to be cared for, in the very loosest sense, by their abuser. None of us would want that but it is the sort of thing that happens at the moment because we do not have a strong enough grip. I hope that we can use the new clause and the Bill generally to take more active steps to address that problem.

There is clearly a significant need for specialist domestic abuse services, which are crucial to enable women’s recovery in particular. Often, such services take on the work of statutory services and provide vital advocacy for women facing health exclusion, particularly in respect of services supporting black and minoritised women. It came out strongly in the debate on what is now the Domestic Abuse Act 2021 that we need specific and specialised services for those who are at greatest risk of being excluded. We did not quite get there in those provisions. I confess to using every legislative and parliamentary opportunity to keep pushing at this because it is really important and we can do much better.

We know that medical staff receive some training in adult safeguarding and, in a few hospitals, even on domestic abuse and sexual violence. But the skills and time to communicate with people with, say, learning disabilities or cognitive issues, with deaf survivors or with very elderly people who might be less likely to disclose personal information are not always available, and certainly not universally. The new clause seeks to put the onus on the integrated care system to get organised around this, to specialise and to prioritise it. It should be a priority across the system.

[Dr Whitford]

Does the hon. Gentleman think that we also have a job to do socially in reducing the stigma? I have worked in casualty departments and as a surgeon facing women who had clearly been abused but were standing or lying there making excuses for their abuser and saying why it was their own fault. As well as women with disability, there are women with insecure immigration status or insecure financial status who have no money of their own and feel that they have nowhere to go. I support the principle here, but we have a much bigger job to do around domestic abuse, which is endemic across the UK.

[Alex Norris]

I am very grateful to the hon. Lady for that intervention and completely agree with everything she said. For my part, and that of many of our colleagues, our way to tackle all those different barriers is to seek to put this in every bit of legislation. Most domestic legislation touches on these issues.

What is pertinent to this debate is thinking about the barriers to reporting. One barrier is the fear of not being believed. Of course, there is a bigger fear around prosecutions, which the Minister took a personal interest in when he was a Justice Minister, but it is clear from the evidence that we are not making enough progress. We have heard lots of positive sounds from the Government but no concrete proposals for change. We could do much better there.

On the barrier of not being believed, one way to create a better environment for a survivor to disclose what has happened to them is by their knowing that the person they are talking to in that healthcare setting has had training and works in a system that prioritises the safe disclosure of abuse. That would do a lot to build confidence. On the hon. Lady’s point about migration status, it is important that we talk about that. It was a key theme in the Domestic Abuse Act. There must be safeguards in place so that the disclosure of abuse trumps immigration status. The practitioner that they work with must be someone whose role is to help them address those issues, not someone who will be speaking to the Home Office. That first knock on the door will be someone trying to help them deal with the abuse and its impact on their life; it will not be from someone trying to resolve their migration status. That is an important principle.

Returning to the new clause, meeting with a professional social worker who ought be trained in assessing risks, including domestic abuse, might be the significant moment that an older or disabled person discloses domestic or other abuse. If given time and asked skilful questions in a safe environment, the person may disclose or express their fears, knowing they can do so in a protect manner. But across the country, such interventions are not falling into place on their own.

Women’s Aid’s data shows that in 2019-20, no refuge services responding to its survey were commissioned by their CCG, and just 10% of community-based services were. This is a multi-agency issue. I fought very hard to persuade the hon. Member for South Derbyshire (Mrs Wheeler) when she was Housing Minister that there ought to be investment and support going into the services through local government. She took that on, which was a good thing. Local authorities alone cannot tackle this issue. The picture that emerges from the evidence is that health agencies are not delivering as they ought to.

To be clear on what our modest ask is, subsection (1) states that each board must

“assess, or make arrangements for the assessment of, the need for support for victims of domestic abuse using their services”.

That is pretty basic. Following that, it must prepare a strategy, monitor that strategy and have an annual report on it, but particularly, under paragraph (d), it must

“designate a domestic abuse and sexual violence lead”,

because we know that in organisations such as the police or health organisations, where they have designated such a person, that person has been impactful. Those are pretty basic requirements. On many occasions the Minister has said that the point of the system is to be a permissive one and to let local areas shape services in the interests of their population, depending on the challenges they face; but the reality is that this problem is in every community, and we ought to be clear to ICBs that we expect this kind of activity. Subsection (3) includes a modest ask for consultation, which is reasonable and desirable.

Women in particular, and all our communities, desperately need this issue to be given deliberate focused attention. There is a high degree of consensus on it, but that does not lead to action frequently enough. The appointment of a Domestic Abuse Commissioner, which we have discussed, was a welcome step, but from a health and social care perspective we need to do more in the system. At the moment, that is not happening. That is not because I think that commissioners, leaders and decision makers do not think it is important, but they have an awful lot on. This can be a hidden crime that goes on behind closed doors, and as such drops down the list of priorities because of the urgent pressures on them; but we cannot let it go. As well as the leadership that we try to display on a national scale, we must do more to encourage this on a local scale. In this case, that is in the strategies and plans of the ICBs. We should make sure that happens.

To conclude—this is in the same vein as what I said when we debated new clauses 1 and 2—we should in our remaining time seek to put in the Bill things that will change people’s health outcomes, and outcomes in life more generally. New clause 5 is one of those things, so I hope the Government are in listening mode.

Health and Care Bill (Sixteenth sitting)

Philippa Whitford Excerpts

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[The Chair]

Thank you, Minister. I am sure the Committee has taken note of your point of order.

Clause 106

Prohibition on disclosure of HSSIB material

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I beg to move amendment 86, in clause 106, page 92, line 26, leave out subsection (2) and insert—

“(2) In this Part ‘protected material’ means—

(a) all statements taken from persons by the HSSIB during a safety investigation or in the course of deciding whether an incident is going to be subject to an HSSIB investigation,

(b) records revealing the identity of persons who have given evidence in the context of the safety investigation,

(c) information that has been collected by the HSSIB which is of a particularly sensitive and personal nature, such as (but not limited to) copies taken by the HSSIB of health records, care records, clinical notes, or personnel records,

(d) material subsequently produced during the course of an HSSIB investigation such as (but not limited to) notes, drafts and opinions written by the investigators, or opinions expressed in the analysis of information obtained through the investigation,

(e) drafts of preliminary or final reports or interim reports, information that would be subject to legally enforceable commercial privileges.”

This amendment would define more closely the materials covered by the “safe space” protection provided for by the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 87, in clause 106, page 93, line 6, leave out

“information, document, equipment or other item held by that individual”

and insert “protected material”.

This amendment is consequential on Amendment 86.

Clause 106 stand part.

Amendment 91, in schedule 14, page 212, line 14, leave out paragraph 6.

This amendment would remove the provision allowing coroners to require the disclosure of protected material.

Amendment 136, in schedule 14,  page 213, line 3, at end insert—

“Disclosure to families

6A The Chief Investigator may disclose findings to any patient involved in any incident which HSSIB is investigating, or the family of any such patient, on the condition of confidentiality and any other condition the Chief Investigator sees fit.”

This amendment would give the Chief Investigator the discretion to disclose information about an investigation to a patient/family involved if they deem this appropriate, on the condition that the information remains confidential.

That Schedule 14 be the Fourteenth schedule to the Bill.

Amendment 88, in clause 107, page 93, line 17, leave out from “Part” to the end of line 41.

This amendment would remove the ability of the Secretary of State to make regulations authorising disclosure of protected material beyond that provided for in the Bill.

Clause 107 stand part.

Amendment 89, in clause 108, page 94, line 15, leave out paragraph (c).

This amendment is consequential on Amendment 88.

Clause 108 stand part.

Amendment 90, in clause 109, page 95, line 6, leave out subsection (7).

This amendment is consequential on Amendment 91.

Clause 109 stand part.

Clause 117 stand part.

[Dr Whitford]

We are now discussing the health services safety investigation body, and I rise to speak to amendments 86, 91 and 88, which are the main substantial amendments, with amendments 87, 89 and 90 being consequential on those three. HSSIB will not apply in Scotland, but having been a surgeon for over three decades and having been involved in quality improvement and the Scottish patient safety programme, I will be watching it with interest. We want it to succeed, and I am sure the other nations in the UK will want to learn from it, so it is important that it is not simply drowned at birth and that we get it right at this stage.

HSSIB is based on the principles of the air accidents investigation branch, and we on the prelegislative Committee felt that the most central and important part was the safe space protected materials. The main priority is learning from incidents, mistakes and errors and looking at how to prevent them from happening in future; it is not about blaming individuals. That is because most incidents in the NHS are system-related, rather than individual-related. Errors and mistakes will happen, particularly when NHS staff face workforce shortages and are covering more patients than normal. The pandemic might mean that they are working outside their comfort zone. They also work long hours, and sometimes the system will cause a mistake. We should be designing a system that prevents a simple mistake or error from delivering harm to a patient. That is the critical aim, and that has been the focus of the Scottish patient safety programme, which was introduced in operating theatres in 2007, when I was still working as a surgeon.

That programme made the World Health Organisation checklist compulsory. It involved a discussion at the beginning of operation lists and time out with the whole theatre team before the operation started, so that patient safety and the responsibility to prevent wrong site surgery, which the shadow Minister raised previously, is made everyone’s responsibility. The whole team stops and is quiet, and everyone goes through that final check before the operation starts. A former Health Minister from this place visited Scotland but never made that checklist compulsory in England. I do not understand why not.

This issue is not in need of investigation by HSSIB, but it does demonstrate that it is necessary for someone learning from an incident to recognise and admit candidly that they have made a mistake. Such mistakes could include putting the wrong mark on a patient, putting the wrong side on the consent form, or putting the X-ray up the wrong way around. Whatever led to the error, we need people to be willing to completely admit to their mistakes, and to then create systems to prevent that mistake from resulting in harm to the patient. That is why the safe space is so critical—otherwise NHS staff, clinicians, and anyone else involved will not be candid—and it is why the prelegislative Committee felt it was important to be absolutely focused on protecting it. The aim is to design safety nets to protect the patient.

Amendment 86 seeks to change the orientation of the Bill. The Bill defines protected materials very widely and creates exceptions. It implies that other organisations cannot get on with their investigations because HSSIB is getting in the way. The amendment seeks to define protected safe space materials very narrowly. HSSIB would only hold copies of records. That means that the originals—the safe space testimony of witnesses or others —would still be held by the NHS. Patients and families could still give permission for their testimony to be disclosed, thereby avoiding the need to repeat it to another agency, but evidence could not be forcibly disclosed. Other bodies could not use HSSIB as a substitute and say, “Oh well, if you’ve investigated it, we won’t bother. We’ll simply copy what you’ve found.”

Amendment 88 to clause 107 would remove the potential for the Secretary of State to simply expand the disclosure exceptions later on. There is a big list in clause 107 of what could be changed. Schedule 14 lists the authorised reasons and persons who would access disclosure. Amendment 91 seeks to remove coroners from that list. If coroners are given access to testimony, other people do not understand why they should not be given access, too. We have probably all been lobbied about that by the ombudsman and the freedom of information bodies. If that happens—if more people access the safe space raw testimony—it will no longer be a safe space and the system will simply not match the achievements of the air accident investigation branch in getting such frank and candid evidence. People can be summoned and made to respond to factual questions, but will they discuss poor interpersonal relationships in a team, people not working together and all the things that could contribute to a bad atmosphere or system?

In the prelegislative Committee we felt that there were two key reasons for disclosure to go ahead regardless. The first obvious one is if there is an ongoing significant risk to patient or public safety, and the other is if there is a criminal prosecution because of someone’s actions or because they have breached the disclosure rules. The Bill states that access can be granted to safe space materials via the High Court. That is how it is for air accident investigations. It is felt that the High Court will weigh up the importance of admitting the disclosed materials versus the chilling effect that could have on future investigations and people giving evidence to them. It is important to keep the High Court provision in place and to trust it as the main route for other bodies or individuals seeking access to safe space testimony or records.

It is important to recognise that aviation is among the safest industries because of the safe space provided when investigating air accidents. It is not always a matter of investigating catastrophes; it is also about investigating near misses and working out why an accident did not happen. Was it by the grace of God, or did something kick in, and should processes and procedures be changed?

The amendments would strengthen the safe space, help ensure the willingness of NHS staff to come forward to give honest testimony, and protect that testimony so that it could be used to reduce any future harm to patients.

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

It is a pleasure to see with you in the Chair, Mrs Murray. I will speak to amendment 136, as well as the other clauses and amendments in the group. I will not repeat the points made by the Scottish National party spokesperson, the hon. Member for Central Ayrshire, in her excellent introduction, but I will draw the Committee’s attention to a few salient points.

First, amendments 86 and 87 seek to create a new definition of protected material. We support the amendments because, as the SNP spokesperson said, it is important to turn this around and try to create as much certainty as possible by defining protected materials as far as possible. I suspect that the Minister will tell us that the amendments are unnecessary, but we certainly feel that it is better to over-prescribe now than to undercook the Bill and find out in two or three years’ time that some loophole ends up having the chilling effect that we have discussed several times.

I am aware of the counter-argument that there should be no restrictions or protected material if an individual is not capable of being identified, but that is a rather risky strategy. It would not remove the risk of people being able to identify someone simply by working out who was doing what at a particular time and what evidence they gave. It also does not help to build the confidence necessary to deliver the safe space that the Bill is trying to achieve. Certainty and clarity are needed wherever possible, and defining materials that are to be considered a safe space and protected will assist in that aim.

Turning to clauses 106 to 108 on disclosure, it is appropriate to make clear in clause 106 that the disclosure of protected material is prohibited, but we think that clear statement is rather undermined by the ability of the Secretary of State in clause 107 to make regulations to change that. As I have said, the parameters of safe space should be clear, consistent and constant. That is why amendment 86 in particular ought to be supported. The Secretary of State is once again giving himself more powers—a theme we have picked up throughout the Bill—and that is of concern.

Let us not forget that this Bill has been floating around in various guises for about five years, so we do not think it is acceptable or, indeed, necessary for the Secretary of State to reserve for himself greater ability to move the goalposts at some later date. If we do not know now what protected material and safe space are, we are never going to know. Amendment 88 commends itself on those grounds alone. Any ability for the Secretary of State to change the boundaries risks undermining trust and confidence. If those taking part in investigations do not have trust in the safe space provided, it is likely that they will not feel confident enough to be as candid as we would like them to be. If the Minister feels that exceptions are needed, they should be on the face of the Bill; they should not be slipped in by regulations at a later date.

The independent advisory panel of the Healthcare Safety Investigation Branch has also offered a view and stated that staff would not speak up if there was a risk of exposure of identity, and any issues regarding the limits of disclosure are best dealt with by the High Court, not by the Secretary of State in further regulatory procedures.

A related concern on disclosure is that an HSSIB employer who reveals information showing that the organisation itself is failing to properly discharge its responsibilities would commit an offence if he or she knew or suspected that what they were disclosing was protected information. Given the work that they are likely to undertake, I think we can all see that that is likely to be the case. It would not be needed to show that the disclosure had caused, or was likely to cause, harm, and there would be no reasonable excuse defence and no protection under whistleblower legislation. Yet under clause 108(4) a reasonable excuse defence is available to third parties that disclose information to them provided by HSSIB. Will the Minister explain that discrepancy and what protections might be available to whistleblowers who work for HSSIB?

Turning to amendment 91, it is right that considerable concern has been raised about the proposal to allow coroners to access protected material, because it could mean individual coroners routinely requesting material from HSSIB investigations. I hope it is clear to members of the Committee the ramifications that could have on healthcare professionals’ willingness to be fully engaged and open with HSSIB investigations.

Another consideration—and another reason why we think this is a bad idea—is that there is variation in coronial practice around the country. There is a risk that one coroner or region could be more proactive than others, and could undermine confidence in the system as a whole. It is right that coroners have their own discretion and powers, but the chilling effect would be obvious should only one coroner make a stand on a particular issue.

There is also the question of cost. If HSSIB needs to challenge these decisions, which I am sure it will want to from time to time, it will have to spend considerable amounts on legal fees to do so. Surely its resources would be better spent on delivering its core objectives, rather than on trotting off to the High Court every five minutes to deal with inquisitive coroners.

The Joint Committee on the Draft Health Service Safety Investigations Bill concluded:

“We recommend that the draft Bill be amended to put beyond any possible doubt that the ‘safe space’ cannot be compromised save in the most exceptional circumstances, and therefore that the prohibition on disclosure applies equally to disclosure to coroners.”

That is why we believe that amendment 91 should be supported.

I also refer to the evidence submitted by the independent advisory panel of the Healthcare Safety Investigation Branch, which said of the proposal that there is in fact no parallel in the transport sector—from which the idea for this body was originally conceived—and nor is there any evidence from its experience of the transport sector that such an approach would be necessary. Obviously, we are dealing with different orders of investigations. Certainly, the number of people who would die in an air accident is very different from an incident in the NHS, and we would also expect there to be a significant number of patient safety issues that do not apply to the air sector. However, HSSIB has been going for a considerable time and it has not had any circumstances or incidents where it thinks this power would have made any difference.

HSSIB’s approach to protective disclosures does not limit the powers of coroners to conduct investigations in their own way—there is nothing in there that takes away from their current situation. The independent advisory panel also said that areas of prohibited disclosure should be highly specific and as limited as possible, and expressed the view that disputes regarding the prohibition of disclosure should be determined through an independent judicial process in the High Court, which is already provided for in the Bill.

Finally, I will say a few words on our amendment 136, which is a probing amendment. We want to raise the concern articulated to us that, although it is important that any evidence gathered by HSSIB remains protected, for the reasons we have been discussing, there may be occasions when it would be appropriate for some information to be shared with a patient, or the family of a patient, who has been involved in any qualifying incident. I certainly would not envisage such a power being used routinely. Indeed, the amendment places the discretion entirely in the hands of the chief investigator, who may decide not to use that power at all. However, there may be occasions when certain information, handled correctly—and at the very least on condition of confidentiality, and quite possibly with the consent of the individual or organisation that has provided the evidence—could be passed on to those with a direct interest in the matter, whose knowledge and understanding of what had gone wrong would be improved by the disclosure of the information.

That would still not be considered to be admissible evidence for any proceedings. Given the chief investigator’s desire to keep the concept of safe spaces as secure as possible—which should always be the primary consideration—we can see why that might be put at risk, but I want to flag up this as an issue. Patient groups have long-running concerns that the defensive culture that so often pervades the NHS when something goes wrong does little to aid the ability of patients and their families to get to the bottom of what went wrong. There are always concerns about medical negligence or professional competence proceedings, but rarely do families go into these situations looking for compensation. They are far more likely to want an explanation and an assurance that measures are being put in place so that nobody else will have to go through what they have. In any event, the proposed powers are not too dissimilar to those set out in paragraph 2 of schedule 14.

[Dr Whitford]

I want to echo that. I have been involved as an external for significant adverse event reviews, and it has always been my experience that what the family wants to find is that it will not happen again. I therefore feel that we have to trust HSSIB that the duty of candour will mean that there is discussion with the family as we go. That should be the culture across the NHS. The problem is that the more threatened clinicians feel by litigation, the more defensive they become. If the whole orientation can be changed to be about learning and preventing rather than blaming, we will probably get better relationships with families and better, open duty of candour discussions.

--- Later in debate ---

[Justin Madders]

rose—

[Dr Whitford]

rose—

[Justin Madders]

Does the Minister think that there is anything missing from the amendment that ought to be included?

[Edward Argar]

I will take the intervention from the hon. Lady, and I will address both together.

[Dr Whitford]

I want to point out that it is irrelevant whether records, statements or information, all of which are listed in amendment 86, are in a digital form or some different form in the future. We use the words “statements”, “information” and “records”, and the importance of having copies is that the originals will still be available to other investigatory bodies. I cannot see what the gap is. Whether we are talking about an audio recording or sheets of paper, the technology is irrelevant.

[Edward Argar]

I am grateful to the shadow Minister and the SNP spokesperson, whose points are not dissimilar. I take the hon. Lady’s point that statements and information are recognised legal terms and would catch different mechanisms by which they are recorded. We still think it is prudent to allow not only for developments that we may not have anticipated, but for clarity. We believe that the blanket provision gives greater clarity and certainty without the assistance of the amendment, so we do not share the hon. Lady’s view. I suspect she may still wish to test the amendment with a Division to make the point, as she is entitled to do.

Moving on from these amendments, to illustrate the variety and breadth of debate on this subject—we have had a small taste of it this morning—I want to address the argument that keeping protected materials in the safe space would potentially undermine the role of other bodies, such as the Parliamentary and Health Service Ombudsman. This illustrates part of the challenge. There are, understandably, calls from colleagues on the Committee to further restrict the exceptions to the safe space. As has been alluded to, others outwith this place argue for an expansion of the list of those exceptions. Some have argued that the PHSO should be on that list. With all due respect to those who advocate that, I do not agree. I do not think it would be appropriate to add the Ombudsman to the list of exceptions. The PHSO will still be able to fulfil its important independent role. It will have direct access to the same sources as it does now when it needs to investigate a complaint. The HSSIB will not in any way limit its ability to conduct an investigation.

--- Later in debate ---

[Justin Madders]

I appreciate the work that has gone into ensuring greater consistency among coroners. The fact remains, however, that, as the Minister said, these are independent judicial positions, and coroners are entitled to make decisions as they see fit. I do not think that that concern has been adequately addressed yet.

[Dr Whitford]

rose—

[Edward Argar]

I will take an intervention from the hon. Member for Central Ayrshire, because I suspect it is consequential on what the hon. Gentleman has said.

[Dr Whitford]

I would like to understand what coroners have now that they would lose by the protection of safe space. The provisions on granting disclosure apply to the High Court, not to all courts and not to all judicial positions. Why is the coroners’ court specifically being given the right to access, as opposed to applying for disclosure through the High Court? It will be the thin end of the wedge, and other groups will feel they ought to have a right to the same safe space. As clause 107 allows regulatory changes to be made later, this could continue to be eroded. I do not understand what part of what coroners do would be undermined by the introduction of HSSIB and the real safe space.

[Edward Argar]

I am grateful to the hon. Lady and the hon. Gentleman, and I think the points they made are linked. The distinction we draw with other organisations and individuals is because of the key point that coroners are members of the judiciary. The hon. Gentleman is right to say that that gives them independence in the exercising of their functions, and I will turn in a minute to what the Chief Coroner is doing specifically with these clauses to seek achieve greater consistency.

Coroners are independent and that goes to the heart of their role, which is to determine the circumstances of a death. That is why we believe it is important that their independence, and their existing right to access papers and documents, is not in any way fettered by the legislation. I will try to make a little progress in explaining what we have done with the Chief Coroner, and that may assuage some of the hon. Lady’s fears. I fear it will not, but I will try.

As we know, coroners would not have wholesale access to the protected material. They would have access only when it was necessary for them to fulfil their judicial functions in a clear way—for example, in particular individual cases. We expect that the memorandum of understanding between HSSIB and the Chief Coroner, which will be in place, will set out how HSSIB and coroners will work together to minimise the occasions and the amount of material on those occasions that would need to be shared to meet the responsibilities of a coroner that are clearly set out in statute when investigating a particular death.

Although I hope I have provided a degree of reassurance, I fear that it may not be sufficient for the hon. Lady, who has studied the issue over many years in her work. Our aim is that, due to its sensitive nature, the information cannot be publicly disclosed or shared further without an order from the High Court, which is an important safeguard and something that we have considered carefully to balance the needs of coroners and HSSIB. We believe that we can trust our coroners as judicial office holders to behave appropriately.

[Dr Whitford]

If it is the case that it should be judicial officers, why is it only the High Court, and not other courts in the land that might have an interest in such a case?

[Edward Argar]

The role of the coroner is very specific, which is why we have singled out coroners, because their role is to investigate deaths. Hopefully, a large number of the investigations that HSSIB will be investigating will not be about deaths but, to use the hon. Lady’s analogy with air accident investigations, near misses or incidents that, thankfully, did not result in the death of the patient but may have resulted in injury or other concerns. In the vast majority of cases, therefore, I do not believe that coroners will be involved in HSSIB’s work, but they have a specific role in investigating and determining the circumstances and cause of a death. Therefore, we feel that their ability to access it in extremis is the right approach.

The hon. Lady talked about the High Court. For other circumstances, we think that that is the right bar, whether for the PHSO or others, because it is experienced in considering those very complex cases. I suspect, and I think there have been some cases in a similar vein, that the court will consider and debate them over many days because the balance is so delicate.

Because of coroners’ historical and defined-in-statute role, specifically around the investigation of deaths, we think that they are the single right exception in the judicial space. The hon. Lady may take a different view and I entirely respect that, as I respect pretty much all her views when it comes to health. We do not always agree on everything but, like the hon. Member for Bristol South, she knows of what she speaks even if sometimes we reach a different political conclusion.

As I have said, an order will be made only if the High Court is satisfied that the interests of justice served by allowing disclosure in those other cases outweigh the impact. As I touched on in my reply to the hon. Lady, I remind hon. Members that HSSIB will be looking at systemic learning rather than individual cases. As I said, thankfully, many instances do not involve deaths, and even if they do, they may not be ones that are scrutinised by a coroner save in a formalistic way. Therefore, we would not expect the power to be used frequently by coroners at all.

We have included the last limited exception because, as I say, we want to ensure that coroners have appropriate access to information to carry out their statutorily defined judicial functions while seeking to balance that with protecting the integrity of safe space by preventing onward disclosure, except by court order. As such, I hope that hon. Members, even if they do not necessarily agree, recognise the amount of thought that has gone into seeking to strike the appropriate balance.

[Dr Whitford]

I still do not understand from the Minister’s explanation what the coroner loses from where they are now. They can still investigate a death, exactly as now, and that was the argument for narrowing what is kept in safe space so that all the original materials are available to other bodies, including the coroner. The Bill adds something extra at the risk of undermining safe space.

[Edward Argar]

I take the hon. Lady’s point, but I do not believe this very narrow exception does or will undermine safe space. What it does is enable coroners to continue to do their job, and if there is information available out there, it enables them to access it from that source. My personal perspective is that we have struck the right balance: if the information is there, we should make it easier for coroners to do their job and access information that facilitates it. I have sat through coroners’ court hearings, and I have seen how families cope with them—it is not the easiest experience for them. If there is information out there that would make it easier for a coroner to reach a swift conclusion, and would give them the information that they need about circumstances and cause of death and so on—the other key part, which is not necessarily pertinent here, is the identification of the deceased individual—I believe it appropriate that we give them access to that information.

--- Later in debate ---

[Edward Argar]

I know that my hon. Friend has done a lot of work in this space, possibly involving the all-party parliamentary group for whistleblowing. I know she is very concerned to make sure that, while these protections are in place, the legitimate rights of whistleblowers seeking to disclose information are not inhibited. This provision sits alongside the 1998 Act, but it is a difficult balance to strike, as she rightly suggests. I pay tribute to her work in helping to foster a culture in which people feel able to speak up and bring matters to the attention of the appropriate body to address wrongdoing.

Finally, clause 117 ensures that the disclosure of information, documentation or other items that are authorised by the provisions I have just discussed does not breach any obligation of confidence owed by the person making the disclosure or any other restriction. The clause also confirms that part 4 does not authorise any form of disclosure that would contravene data protection legislation, which is intended to ensure that where an individual is required or authorised to disclose material, they are protected from violating restrictions on disclosure. A disclosure to HSSIB in those prescribed circumstances therefore does not contravene any restrictions on disclosure, removing barriers that individuals may face in disclosing information to the current investigations branch and helping to instil trust in the new HSSIB investigatory process.

Safe space is an exciting and important development of recent years. What we are seeking to do today is a first for a health body in this country. The clauses are of great importance to the new HSSIB and the vision we have for it. The novelty of what we are seeking to do here, building on what happens in the transport space, and the challenges that that poses, are demonstrated in the debate we have had on what the right balance is. It is an incredibly difficult and, to a degree, subjective judgment for Members of this House and others to make. While I have set out where we believe it should sit, I entirely respect the perspective of the hon. Member for Central Ayrshire, who has a slightly different and entirely legitimate view. I commend the clauses to the Committee.

[Dr Whitford]

This is the nub of the entire debate on HSSIB. I welcome that the Minister is struggling with exactly how to achieve that balance. I think everyone on the Committee is trying to do their best to get a good outcome. The Minister talks about clarity, but then we hear about flexibility. It is important that we get this right in the Bill. I wish to press amendment 86 to a Division.

Health and Care Bill (Seventeenth sitting)

Philippa Whitford Excerpts

Committee stage
Tuesday 26th October 2021 Public Bill Committees

[The Chair]

Good afternoon. It is lovely to see everyone again. I must remind you of various things before we start. Please switch electronic devices to silent. No food or drink apart from water is permitted. Please wear masks when not speaking, as per the Government and House of Commons Commission guidance, unless there is some obvious reason not to do so. It would be helpful if any speaking notes could be e-mailed to hansardnotes @parliament.uk. I am also asked to remind people that they can have lateral flow tests twice a week if they are coming on to the estate.

Clause 120

International healthcare arrangements

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I beg to move amendment 110, in clause 120, page 101, line 15, at end insert

“but does not include a Scottish Minister, a Welsh Minister or a Northern Ireland Minister”.

This amendment removes devolved Ministers from the definition of a “public authority” on which the Secretary of State could confer functions, or to which the Secretary of State could delegate functions, under this section.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 111, in clause 120, page 101, line 22, at end insert—

“(5A) In section 5 (Requirement for consultation with devolved authorities) in subsection (1), for ‘consult’ substitute ‘gain the consent of’.”

This amendment would require the Secretary of State for Health and Social Care to obtain the consent of devolved governments before regulations under section 2 of the renamed Healthcare (International Arrangements) Act 2019 could be made.

Amendment 146, in clause 120, page 101, line 22, at end insert—

“(5A) In section 7 (Regulations and directions)—

(a) in subsection (4), after ‘under’, insert ‘section 2 or’;

(b) after subsection (4), insert—

‘(4A) A draft instrument which contains regulations under section 2 may not be laid before Parliament under subsection (4) unless a document containing a proposal for such regulations and an impact assessment of the costs and the demand placed on the NHS have been laid before Parliament.’”

This amendment would make regulations giving effect to a healthcare agreement subject to the affirmative resolution procedure, and would require a proposal for such regulations and an impact assessment to be laid before Parliament before any such regulations could be brought forward.

Clause stand part.

[Dr Whitford]

It is a pleasure to serve under your chairmanship, Mr McCabe.

The amendment brings us back to a knotty problem I have raised previously: although the Bill was brought forward as predominantly a Bill for England, it does have an impact on the devolved Governments, who saw it the day before it was launched. There is absolute support in Scotland, and I am sure across all the devolved nations, for strong healthcare agreements with other nations outwith the EU, particularly Switzerland and the European Free Trade Association countries, which are not currently covered, but it has to be remembered that the delivery of healthcare is a devolved issue. We are trying to ensure that that is recognised in the Bill, so that the UK Government, who absolutely have the right to negotiate international agreements, work much more closely than we have seen them do so far on how the technicalities should work in the devolved health services.

Amendments 110 and 111 relate to the same issue: the fact that the devolved nations, and certainly the Ministers concerned, were not involved in the development of these clauses. There is no mention of them, and no mention of how they will be involved in shaping any healthcare agreements or health insurance card. That is what we are now calling for.

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

It is a pleasure to see you in the Chair, Mr McCabe. I shall speak in support of amendment 146, which stands in my name and the name of other Opposition Members. There is a temptation to get teary-eyed and reminisce about the 2017-19 Parliament; it is almost overwhelming, but I will resist and battle on.

What we are discussing in this clause amounts to a significant amendment to the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, on which I had the pleasure of leading for my party, opposite not one but two of the Minister’s predecessors. I hope that the same fate will not befall this Minister as befell his predecessors who dealt with this legislation—although one of them actually got a promotion. Clause 120 renames that Act the perhaps more snappily titled Healthcare (International Arrangements) Act 2019, which is what the original Bill was called until Parliament, in its wisdom, decided that as this was a Brexit Bill, it was better to have it deal with matters associated purely with Brexit, and not to slip in wider powers almost wholly unrelated to our decision to leave the EU.

The clause gives the Secretary of State power to make regulations to pay for healthcare provided outside the United Kingdom where the payments give effect to a healthcare agreement. In the context of what has come before, that is no surprise, and it is certainly something we would expect to be pursued. It also means that the Secretary of State will be able to make regulations on the payment of healthcare provided in another country where the healthcare is outside the scope of healthcare agreements if he thinks that payment is justified by exceptional circumstances and the healthcare is provided in a country with which the UK already has a healthcare agreement. This discretionary power could, for example, be exercised to pay for a specific treatment that falls outside the scope of an existing healthcare agreement.

Not content with giving himself the power to enter into further healthcare agreements outside the EU, by doing this, the Secretary of State effectively gives himself another power to make further payments if he later discovers that there was another matter that he thinks we should have been paying for that had not been covered by those agreements. It may be that that situation would only arise in exceptional circumstances, but the whole genesis of the original Bill was that it was considered sensible to retain reciprocal healthcare arrangements with countries in the EEA, whereas the clause implies that things may not be quite so reciprocal in future. I wonder what the dynamic will be in negotiations with third countries if, on our side at least, we can just authorise further payments outside any agreement anyway.

These are potentially extraordinarily wide powers, and the regulations would be subject only to the negative procedure. Our amendment is not only consistent with the importance of parliamentary scrutiny, but would ensure value for money. The original Bill contained a similar power to that in the clause and was considered by the Delegated Powers and Regulatory Reform Committee in the other place. It set out clearly the power’s potential impact:

“If, without such amendment, the Secretary of State wished to fund wholly or entirely the cost of all mental health provision in the state of Arizona, or the cost of all hip replacements in Australia, the regulations would only be subject to the negative procedure.”

[Interruption.] The Minister is chuckling. He may well know that I have used that quote before, because it highlights the extreme examples that are possible under the Bill. The Committee continued:

“Of course, these examples will not be priorities for any Secretary of State in this country.”

We should hope not. While the Minister may be able to rule out those two specific examples today, we have to consider how the powers could be used, and not just how they might be expected to be used.

The concern that this is a very broad power has been further strengthened by the inclusion of the power to make payments outside healthcare arrangements. We have to ask what the Secretary of State is trying to solve by giving himself these additional powers. Let us look at what the powers do. There is no limit to the amount of payments he can make. There is no limit on who can be funded worldwide. There is no limit to the type of healthcare being funded. Such powers without qualification or any criteria being applied in the Bill are simply unacceptable, so a resolution of both Houses should be required, alongside an impact assessment of the costs and demands any regulations might place on the NHS.

On the costs, there is no limit on what the Secretary of State might pay. If we are to assume that this will come out of existing departmental budgets, who will receive less? I mention this not just in the context of extra payments that the Secretary of State may make for things not covered by agreements, but in terms of the burden on the NHS of delivering any new obligations, because, to be blunt, cost recovery has been suboptimal. As the Law Society of Scotland said:

“As the NHS has never been very effective in reclaiming the fees owed to it by overseas visitors to the UK, the UK may find itself substantially worse off financially when new arrangements for funding cross-national use of health services are put in place.”

The Government need to raise their game on cost recovery, and if there is an additional administrative burden on the NHS in setting up new systems of cost recovery because of new agreements reached, we need a commitment from the Minister to adequate resources to ensure that those services are delivered and the cost recovered.

We support the concept of reciprocal healthcare arrangements. They are a very good thing for our citizens and for visitors to the country, but it cannot be right to give the Secretary of State such a blank cheque. Amendment 146 will ensure transparency, accountability and a proper assessment of the obligations entered into by virtue of regulations under the clause.

--- Later in debate ---

[Edward Argar]

I am grateful to the hon. Lady. We have made significant strides forward in making this easier and clearer for the NHS in recent years, recouping money where appropriate to help fund our NHS. We regularly update the guidance to trusts, which—as the hon. Lady will appreciate—are responsible for recouping funds where a patient is chargeable. They are increasingly consistent in how they apply those rules.

I concede to the hon. Lady, quite reasonably, that there are occasions when trusts do not apply the rules in a fully consistent manner. That is why we have taken steps centrally with NHS England to ensure that we pass very clear guidance to them; we do not believe that this will impose any heavier burden on them than is currently the case. Similarly, in the implementation of the agreement with the EU—again, it would be churlish not to admit it—we have faced some challenges in making sure that other countries understand their obligations to British citizens abroad under that agreement. That is in the nature of the early days of a new agreement.

Anecdotally, I receive correspondence on this issue from right hon. and hon. Members, and there was an increase in that correspondence at the very start of the year: Members were either saying that they had constituents who went abroad and did not receive the free healthcare they should have received, or were taking up the cases of people who visited this country who were charged and did not think they should have been, or vice versa. That correspondence has significantly dropped off in recent months, so with that caveat about it being anecdotal, I suggest that the new agreement has bedded in fairly efficiently. I have not had any responses from trusts saying that the way in which the agreement works has imposed any additional burdens on them that they cannot cope with.

Of course, there are other countries with which we already have different bilateral agreements, so I am confident at the moment that the administrative processes will be an effective extension of current processes but, as with all these things, I keep the issue under review. The hon. Member for Bristol South will know from her time in the NHS that if a trust found that the burden was significant or increasing, it would not hesitate to tell me. Equally, we are looking at reciprocal healthcare agreements here—we are not looking at a whole load of agreements, but dealing with them bit by bit, as we negotiate them, and we are allowing them to bed in. That was a long answer, but she made an important point.

It is time for the Government to build on our significant success in negotiating the agreement with the European Union and our new relationship, and to turn our attention to the UK’s relationship with countries outside the EU, as another strand of our global Britain strategy. That is why we are extending the geographical scope of the 2019 Act beyond the EEA and Switzerland and renaming it, as the hon. Member for Ellesmere Port and Neston said, the Healthcare (International Arrangements) Act 2019.

Outside Europe, we have limited healthcare agreements with a number of countries, which support people from the UK in accessing medically necessary healthcare. These agreements do not always provide comprehensive cover to those who need it; for example, a person suffering from kidney failure may be able to access emergency treatment if something happens to them while abroad, but they would likely have to pay for their ongoing dialysis needs privately.

The clause will enable the Government to implement comprehensive reciprocal healthcare agreements with other countries around the world by allowing for the reimbursement of healthcare costs and the exchange of data to facilitate this reimbursement. By implementing such agreements, we can better support people when they are abroad. Comprehensive reciprocal healthcare agreements can help people to access necessary healthcare services when they are travelling for leisure or business. Importantly, they can particularly benefit those with chronic health conditions, for whom travel insurance is very costly—or in some cases, sadly, completely unaffordable. Furthermore, agreements usually reduce the burden on NHS trusts, which would otherwise have to pursue individuals to recover overseas charges, as there is normally state-to-state reimbursement built into the agreement. Hopefully, the provisions will mean that we can reduce the debt owed to the NHS in an administratively unburdensome way.

Finally, reciprocal healthcare agreements can strengthen our relationships with countries around the world and foster greater healthcare co-operation, including on health security and research, the importance of which hon. Members on both sides of the House would acknowledge has been illustrated by the recent pandemic and the research around that.

The clause will enable the Government to implement more comprehensive agreements where that is to the benefit of the whole UK. We will also be able to improve arrangements to make them more effective. Our ambition is for new and improved agreements to be brought under the umbrella of the new UK global health insurance card, which will bring our EU and rest-of-the-world agreements together into a cohesive and visible service for UK citizens, and ensure that people can take advantage of their rights under these agreements.

During the 2019 Bill debates, which I confess to having read, the Government were asked to review the breadth of powers in that Bill after the conclusion of the EU exit negotiations. We have listened to the concerns expressed by the House, and our amendments to this Bill remove section 1 of the 2019 Act, which provided for a free-standing payment power and enabled the Secretary of State to make unilateral payments for healthcare in the EEA and Switzerland—a point to which the hon. Member for Ellesmere Port and Neston alluded. This power is no longer needed now that the withdrawal agreement and the trade and co-operation agreement are in place to protect the healthcare rights of UK nationals living in EU member states.

We are replacing that broad payment power with regulation-making powers. These can provide for payments to be made in two circumstances: first, to implement healthcare agreements, and secondly in countries where there is a healthcare agreement in place but the healthcare falls outside the scope of the agreement, and the Secretary of State determines that there are exceptional circumstances that justify payment. This latter element prevents a cliff-edge loss of rights in marginal cases.

As demonstrated in recent months, healthcare co-operation between countries is vital in our globalised world. Reciprocal healthcare provides safeguards and support for those who might find themselves in a vulnerable position, and supports greater opportunity for travel for those with healthcare conditions. As we move into the post-EU-exit world, we are excited to seize these new opportunities for global Britain. I therefore commend the clause to the Committee.

[Dr Whitford]

I welcome the drive to set up these reciprocal arrangements. One of the big losses of Brexit threatened to be the loss of the European health insurance card, and I am glad that arrangements have been reached with most European countries, although obviously not in some of the EFTA countries; that is still to be dealt with. I appreciate that the Minister recognises the particular importance of that for people on dialysis, who were unable travel under that scheme, as they require dialysis three times a week. The majority simply could not pay for it themselves, nor would insurance ever be likely to cover it, so I welcome the aim on that. It simply comes back to the need for genuine consultation with the devolved authorities, which would be delivering healthcare for those from the reciprocal countries arriving in the UK.

--- Later in debate ---

[Alex Norris]

We have been at this now for the best part of a couple of months. This is our 16th session. Some of the faces have changed but largely it is the same group of people. We have reached clause 121 of the Health and Care Bill and we have finally found the bit that is about care. It is amazing—you had to not blink or you might have missed it. But I would not get too excited; it is only two clauses, and neither comes anywhere near addressing the problems we face in our nation’s social care.

The national Government’s cuts to local authorities over the past decade have had a devastating impact, particularly around social care. They have led to rationed care and poor quality care. They have led to care being devalued as a profession and to providers being unable to retain their staff. As a result, we see short visits and a constant changing cast of carers, and we know that is bad for all those individuals receiving support. That is the story across all our communities, and it is worsening as we go.

Clause 121 proposes that the Care Quality Commission will now make a general assessment of the quality of a local authority’s offering for those needing care. Once those reports start coming back, I have no doubt they will make very difficult reading for many parts of the country, if not all, because they will lay bare the issues that I talk about. I do not have any problem with inspection and public assessment of the quality of care services. I do not have any problem understanding this at a local authority level rather than provider by provider. My constituents, and people across the country, deserve excellent services, and I can see how these things work in support of that goal. What I do worry about is that this will be just another way for the Government to passport blame to hard-pressed local authorities that are doing their best but are simply not adequately funded to do their job. That is the reality in this country today.

Amendment 145 seeks to improve clause 121 a little, in line with our broader efforts throughout the Bill, because we want to see service users at the heart of the health and care system as genuine shapers of what happens to them in their lives and their community. We want to make sure that those with the greatest stake and the greatest expertise by experience have the chance to be part of the process, as set out in clause 121, and to talk about their experiences in their community and about how things might be done better, because they hold so many of the answers to the challenges we face. That is a moderate but important ask and I hope the Minister will support it in the Bill or make a commitment that it will follow in the guidance that will be issued to the Care Quality Commission.

Similarly, we should seek the voice of providers, for a couple of reasons. First, they know what the successes and challenges are in their local system, and they know about the hard conversations they have with commissioners, which ought to be conversations about an individual’s needs but are, inevitably, rationing decisions. Secondly, and this them gives a special insight, many if not most—probably the vast majority—of these providers work across multiple local authorities, giving them a rich picture of the differences in approach, availability of care and similar. That is a rich contribution. We strongly think that those two voices should be heard, and the amendment is a good way of doing that.

Turning to Government new clauses 60 and 61, I express my gratitude to the Minister for his correspondence on them to give the Committee a sense of where the Government seek to go, but he was not quite able to provide comfort. New clause 60 is a mess constitutionally. It allows the Secretary of State for Health and Social Care greater powers over local authority social care functions, including giving him powers to talk about failures and directions. First, local authority accountability is to its public. We know that, every four years, we have elections. Beyond that, exceptionally and rarely, the Secretary of State who leads for local government—I know they have taken “local government” out of the name, but there is still one in whatever the Department is calling itself now—can take action in instances where the local authority is deemed to be failing in its duties to its population. The Secretary of State can put in directions, support and, as we have seen, even commissioners. That is a well-established process, but the clause inserts the Secretary of State for Health and Social and Care into this arrangement, which is a considerable overreach. It gives the Secretary of State a power to impose themselves on local authorities in a way that I do not think is welcome. At the bare minimum, it ought to be something that is exercised by the colleague of the Secretary of State who leads on local government in ways that are already well established, rather than creating another actor in the piece.

That leads us to the continued pattern that we have seen throughout the Bill. I am afraid that integration is a bit of a myth, but where there is any, it is largely that the health service ought to have more power and, more importantly, that the Secretary of State ought to have more power over telling local government what to do. There is no equivalent or supporting ability for local authorities to impact on the decisions taken by the Secretary of State. That creates a mismatch, which is really undesirable. I am keen to hear from the Minister why it was decided that the Secretary of State needed direct access to do that, when they could perhaps have worked better through their colleague, who does it more conventionally on a day-by-day basis.

New clause 61 dispenses with the Care Quality Commission’s ability to issue a notice of failure to a local authority in England. Again, when taken with new clause 60, my suspicion is that that is because the Secretary of State is in charge now. The commissioners and inspectors may be there to give some helpful evidence but, in reality, it is the Secretary of State who will command and control the system. That might be deemed adequate by the Government with regards to the health service, but I do not think it is adequate in local government, given the mandate that our councillors get from their population.

We cannot support the new clauses. We will not oppose clause 121, because there needs to be some oversight in the new environment that the Government are seeking to create, but I have no doubt that we will have to find a better way to do that in years to come. In the meantime, I hope that we can at least enhance that with amendment 145.

[Dr Whitford]

I rise to support amendment 145 but also to echo the comments of the Labour Front Bench about how far we have to go into the Bill, which is called a Health and Care Bill, before we hear anything about care. I think that all of us with any interest in social care have recognised the challenges within the sector over the past 18 months, which have been laid bare by the pandemic. What needs to come out is a much more radical approach to social care, including closing what is thought to be between a £6 billion and £8 billion funding gap in England every year.

In Scotland, we spend over 43% more per head on social care than in England, and that provides free personal care to people who are resident in Scotland. We fund the real living wage, which helps to begin to tackle the workforce issues, but the deeper issue facing all four nations is that we need a different approach to social care. The Feeley review, which the Scottish Government commissioned last autumn, highlighted the fact that we constantly talk about social care as a burden, and about how much it costs, instead of realising that almost half of those receiving care are people of working age. We must recognise the importance of social care for both younger and older people, recognise it as a human rights issue, and recognise it as funding to allow people to participate in the society in which they live. We need to turn that around, which means that we need to change the approach to the staff who deliver it.

Workforce is the biggest single problem. It is unfortunately much worse since we left the EU—certainly in parts of rural Scotland, where up to 30% of care workers were European citizens. We need to develop care as a profession. It is a registered profession in Scotland, but the staff need to be treated as professionals with career development, so that people come into social care for a lifetime, not just until they get a job on the checkout in Tesco. I appreciate clause 121, but it is not remotely radical enough. In something called the Health and Care Bill it is very small considering the mountain that has to be climbed.

--- Later in debate ---

[Dr Whitford]

I beg to move amendment 112, in clause 123, page 105, line 13, at end insert—

“(f) after subsection (3) insert—

“(3A) An Order in Council under this section—

(a) which affects Scotland may only be made with the consent of the Scottish Ministers;

(b) which affects Wales may only be made with the consent of the Welsh Ministers;

(c) which affects Northern Ireland may only be made with the consent of the Northern Ireland Ministers.””

This amendment would require the appropriate authority to obtain the consent of devolved governments before orders under section 60 of the Health Act 1999 affecting the relevant territory could be made.

Obviously, we are discussing the regulation of healthcare and associated professions. I am concerned that what we see written is that the Secretary of State will have the power to abolish certain regulatory bodies, deregulate certain professions and specifically deregulate social care workers. Most registration and regulatory bodies for healthcare are UK-wide, but it must be recognised that people work and move between the four nations, so anything that happens at that level will have an impact on the devolved health services.

During the debate on the United Kingdom Internal Market Bill, Members raised the issue that professional qualifications gained in any of the four nations must be recognised across all four. That makes absolute sense, but the debate was about teachers, and in England Teach First allows a degree holder to become a teacher within a matter of a couple of months whereas in Scotland and Wales, a postgraduate teaching qualification is required. That did not go ahead, but it highlights the issue.

We see new health professions developing—new grades, physicians and associates—and the devolved nations will have their own view on whether they would use such staff, how they think those staff should be regulated and registered, and where they would fit in their health services. We face the potential of new grades or qualifications being created that the devolved health services would have no option other than to recognise and accept, yet they would have minimal input, so we are back to the issue of genuine consultation with and consent from Health Ministers.

Earlier, when we were talking about the need to professionalise social care, I was surprised to hear the deregulation of social care workers mentioned. In Scotland, we are moving forward with the registration of care staff as the first step in that professionalisation, and we would not want to see it undermined. That is the same theme, unfortunately, that I have repeatedly put before the Committee. However, it is important to recognise that while the delivery of health and social care is devolved, some of the issues that we are debating would have a significant impact on the three devolved services, and it would be wrong for their Ministers to have these decisions forced on them by the Secretary of State with no significant input or consent as to how to take things forward.

[Hywel Williams (Arfon) (PC)]

I shall be brief. I support my hon. Friend on this matter. Clearly, systems vary from one country to another. Indeed, a long time ago, I was involved in teaching social care staff, and we were ambitious to register all staff whereas, as I remember it, 10% of staff in England were going to be registered at that time. Across the UK, there are different approaches to health provision. As I have said before in the Committee, the Labour Government in Wales have adopted a wellbeing approach for many years, and I think the requirements of implementing such a wellbeing approach might vary from one country to another.

I restate my support for my hon. Friend on this matter and look forward to hearing what the Minister has to say about it.

[Edward Argar]

Amendment 112 would place on the Secretary of State a duty to obtain consent from the devolved Administrations prior to legislating using section 60 of the Health Act 1999, where such legislation would affect the devolved Administrations. Before I turn to the substance of the amendment, I will set out the benefits of regulating health and care professionals on a UK-wide basis. It is important that we have UK-wide standards to ensure the same level of public protection across the UK and to allow healthcare professionals the flexibility to work across the whole of the UK. We value and will continue to work collaboratively with our devolved Administration partners on the regulation of health and care professionals.

Each devolved legislature, as has been alluded to, has its own devolved arrangements in respect of professional regulation, which are a mix of reserved and devolved or transferred powers. In practice, any use of section 60 affecting professionals in Northern Ireland is exercised only with the agreement of the Northern Ireland Executive. In Scotland, consent is required in relation to legislation concerning healthcare professionals brought into regulation post the Scotland Act 1998. In the case of Wales, the regulation of healthcare professionals is a reserved matter, so consent is not sought.

In practice, the UK Government always seek the agreement of the NI Executive when making changes to the regulation of healthcare professionals, and the Scottish Parliament’s consent is required in the circumstances that I set out previously. The amendment would add to that by requiring consent in relation to any changes to the regulation of healthcare professionals affecting the devolved Administrations. In addition, legislation requires that section 60 can be used only following public consultation and the affirmative parliamentary procedure.

The purpose of the professional regulation system is to protect the public. Regulating health and care professionals on a UK-wide basis helps to provide consistency across the four nations and ensures that we continue to work together with the devolved legislatures to align workforce policy. For those reasons, although I appreciate the point underlying the amendment, I ask the hon. Member for Central Ayrshire to withdraw it.

[Dr Whitford]

We have had a lot of debate over recent years about whether we are aiming for lowest common denominator or to achieve the highest standard. The concern is about delegating or creating new grades of staff who are not expected to have the same level of qualification or training as the people they may be replacing within the health service. That is not always to the benefit of patient safety. We are really calling for meaningful engagement, which is not what we have seen before. It is important to recognise the impact that it would have on the devolved nations.

I totally recognise that professionals need to be able to work across the UK, but it should be about aiming for people to have the training, professionalisation, standards and regulation that they require and which is comparative to the job that they are doing and the service they are delivering for patients. We spent the whole morning on patient safety. The standard of the staff who deliver the care is the most important thing for patient safety. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Justin Madders]

I beg to move amendment 142, in clause 123, page 105, line 13, at end insert—

“(f) After subsection (2B) insert—

(2C) The regulation of health professions and social care workers must be used where possible to raise professional awareness of rare and less common conditions.”

This amendment would require professional regulators to support improved awareness of rare and less common conditions amongst health and care professionals.

May I clarify that there will be a debate on the substantive clause afterwards?

--- Later in debate ---

[Edward Argar]

I am grateful to the shadow Minister. His points coalesce around a number of key themes that I shall seek to address. He highlighted his concern about why we would do this and the potential disruption of either a lack of regulation in some spaces were we to abolish regulators or of that caused by moving functions. The key point here is that this is about creating a power that enables flexibility in the system that is not currently there. It is not that we have any direct or immediate plans to do this but about creating, in the context of the opportunity provided by the legislation, a framework whereby we could move powers around. There are some points sitting underneath that which I shall try to address.

The current section 60 powers are limited in terms of the changes they can deliver in the professional regulatory framework. We can use secondary legislation to bring a new profession into regulation and create a new regulatory body, but we do not have equivalent powers to remove a profession from regulation or close a regulatory body and move functions without primary legislation. Widening the scope helps us to ensure that professional regulation delivers public protection more consistently and efficiently, recognising the dynamic, to a degree, nature of evolving professional regulation.

On his concern about abolishing regulators, I know the hon. Gentleman will appreciate that there is no intention of doing that. But he rightly asks, “But what if?” It is the role of the Committee to look at that. Were a regulator to be abolished, that would not necessarily mean that the professionals they regulate would cease to be regulated. Current legislation allows a number of professions to be regulated by a single body, and that creates the mechanism to allow those movements and transfers.

To give an example that some might raise, would that mean that the GMC could be abolished? It is an extreme example, but hopefully it illustrates the point. The scope of the power to abolish a regulator covers all health and care professional regulators. However, the key point is that a regulator will be abolished only if the professions have either been moved to another regulator or removed, or deemed to be removed, from regulation altogether. Any use of this power is subject to existing legislative provision, namely a public consultation and the affirmative procedure. However, to take the example I gave, there are no plans to abolish the GMC, because clearly there would always be a need for continued regulation of medical practitioners. Therefore, given that the GMC regulates them, it would continue to do so.

Underpinning that concern is whether the removal of a specified profession entirely from regulation would increase in any way risks to public safety. Again, a profession would only be removed entirely from regulation following an assessment that showed the profession no longer required regulation for the purposes of public protection and that risks could therefore be safely managed, effectively and efficiently, outside statutory regulation. Given the nature of the professionals that we are talking about here, that would be highly unlikely in any of those spaces and I do not anticipate it. Any use of the power to remove a profession from regulation would be subject to consultation and, again, the affirmative parliamentary procedure.

The counterpoint could be why more professions are not included in regulation. From time to time we debate particular professions as new treatments, such as cosmetic treatments, emerge. Given the risks that some may pose, the question of whether there should be greater regulation then arises. Although statutory regulation is sometimes necessary where there are significant risks in the use of services that cannot be mitigated in other ways, we believe that it is not always the most proportionate or effective means of assuring the safe and effective care of service users. Therefore, each situation needs to be assessed carefully on its own merits. We have seen colleagues from the across the House making the case for regulating different aspects of professions, or service providers that have effectively become professional or are providing a service that is regularly used. Rather than a blanket approach, we believe that remains the right way.

[Dr Whitford]

I wonder whether, within this, there is a consideration of the issues within the cosmetic surgery and treatment field, particularly the use of Botox and the injection of fillers, which often result in side effects, and the fact that even cosmetic surgeons, as opposed to plastic surgeons, are not regulated in the same way. The problem is that whenever those medical terms are used, the public assume that they are dealing with a licensed medical professional who is both registered and regulated.

[Edward Argar]

The hon. Lady makes an important point. I pay tribute to my hon. Friend the Member for Sevenoaks (Laura Trott) for her private Member’s Bill, which began putting a framework around Botulinum fillers and who could or could not access them, with age limits. My right hon. Friend the Member for Mid Bedfordshire (Ms Dorries) was then the Minister responsible, but she was self-isolating and awaiting test results, so I had the privilege of speaking in that debate. As often happens on Fridays, it was an interesting and well-informed debate, rather than a political to and fro, as occasionally happens in the Chamber. The hon. Member for Central Ayrshire highlights an important point.

My right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) has taken a close interest in the issue, as have hon. Members across the House. I am due to meet her to discuss this more broadly in the context of this legislation. I do not want to pre-empt that meeting and the upshot of it, but I take on board the point made by the hon. Member for Central Ayrshire.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[Justin Madders]

As the Minister has outlined, the purpose of medical examiners is to provide greater safeguards to the public by ensuring proper scrutiny of all non-coronial deaths; to ensure the appropriate notification of deaths to the coroner; and to provide a better service for the bereaved and, importantly, give them an opportunity to raise any concerns to a doctor who was not involved in the care of the deceased. It will also hopefully improve the quality of death certification and mortality data. These are all worthy aims that we can support, so the challenge for the Minister is to set out how the Government will benchmark the success or otherwise of medical examiners in achieving those aims. For example, can he tell us what improved quality of mortality data will actually look like? Does he envisage this leading to further system changes down the line, or is it too early to tell?

Another area I would be grateful for a little more detail about is set out in proposed new section 19(A3) of the Coroners and Justice Act 2009, which gives the Secretary of State the power to

“give a direction to an English NHS body—

(a) requiring the body to appoint or arrange for the appointment of one or more medical examiners,”

setting out the funds and resources that should be made available to such employed medical examiners, or setting out the means and methods that may be employed to monitor the performance of those medical examiners. Can the Minister tell us exactly who that body might be? Does the Secretary of State have a view on how many medical examiners might be needed, and what the appropriate level of funding might be?

I also want to ask about clause 124(8), which amends section 20 of the 2009 Act. That section provides a power to make regulation to require a fee to be payable in respect of medical examiners’ confirmation of cause of death. The clause will require any such fee to be payable to an English NHS body, rather than a local authority. Does the Department have a position on fees? Are they desirable? Has a level been set for them? What consultation has taken place about that level, and indeed the principle of charging a fee? It would be a shame if medical examiners were not accessible to the majority of people because of a barrier being created by a fee. If the Minister could answer those questions, it would be appreciated.

[Dr Whitford]

The recommendation to introduce a medical examiner system was one of the strongest recommendations from the Shipman inquiry, and Shipman was convicted in 2000, over two decades ago. As a professional, we saw an entire industry of appraisals and various other systems introduced to the NHS that took up hours and hours of clinical time, whereas there was nothing to actually review death certificates—either their accuracy or who was issuing them—and to spot unusual patterns. Obviously, it can be the case that a GP practice covers a hospice or some other setting where there are likely to be increased numbers of deaths and, therefore, death certificates, but it has taken an awfully long time to get to this point. Scotland introduced its medical examiners six years ago, in 2015.

The Minister has talked about all certificates being reviewed, but I would be interested to know the degree of depth to which they are going to be reviewed. It is unlikely to be possible to have a detailed inquiry on every death certificate, so in what way will they be streamed for further intervention, review or interaction with clinicians to understand what happened? That may not be clear from just looking at the certificate. Clearly, patterns of certification and patterns of death would become obvious to a medical examiner and may produce very interesting and useful information.

[Edward Argar]

A number of points have been raised. The shadow Minister, the hon. Member for Ellesmere Port and Neston, asked whether we would envisage this leading to system change if a pattern was identified and whether it could be a catalyst for that change. Absolutely—that is part of what we hope would come out of this. I am pleased that we are legislating now on this issue, but the hon. Member for Central Ayrshire is right about the time it has taken. I acknowledge the example from Scotland; I do not always agree with everything done in Holyrood, but to give credit where it is due, I recognise the progress that Scotland has made in this space.

The hon. Member for Ellesmere Port and Neston made a number of points generally revolving around resources, fees and similar issues. I hesitate to put a figure on exactly how many medical examiners or what level of resource would be needed at this stage, but I will seek to address his point about fees and resourcing in broader terms. He will know that, in the non-statutory system, medical examiners are funded through the existing fee for completing medical cremation form 5, in combination with central Government funding for medical examiner work not covered by those fees. With the temporary removal of cremation form 5 as a provision of the Coronavirus Act 2020, all costs are currently covered by central Government, but that is temporary. The Coroners and Justice Act 2009 includes provisions for making regulations to introduce a new fee for the service provided by the medical examiner, and any such regulations will be subject to further parliamentary debate and scrutiny before their passage.

On the overall cost, the reality is that our estimated cost will be informed by the impact assessment published in 2018 and the data gathered from the non-statutory medical examiner system introduced in the NHS in 2019. We have seen a slightly atypical year or 18 months, so I hesitate to put an exact figure on this, but we have a broad evidence base from which to extrapolate. It predates the pandemic but it probably still has relevance. I am sorry that I cannot give him more direct data, but I would not want to pluck out a figure for him and then, quite rightly, be held to account for it in due course. I cannot do that but I hope that I have given him and the hon. Member for Central Ayrshire some reassurance on those points.

Question put and agreed to.

Clause 124 accordingly ordered to stand part of the Bill.

Clause 125

Advertising of less healthy food and drink

[Dr Whitford]

I beg to move amendment 113, in clause 125, page 107, line 12, at end insert—

“(2) Regulations made by the Secretary of State under any section of the Communications Act 2003 inserted by Schedule 16 may only be made with the consent of the Scottish Ministers, the Welsh Ministers and the Northern Ireland Ministers.”

This amendment would require the Secretary of State for Health and Social Care to obtain the consent of the devolved governments before the powers granted by Schedule 16 clause are exercised.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

Amendment 139, page 216, line 5, in schedule 16, at end insert—

“(da) a drink product is ‘less healthy’ if it is an alcoholic product in accordance with the Department for Health and Social Care’s Low Alcohol Descriptors Guidance, published in 2018, or future versions of that guidance;”

This amendment ensures that alcohol is considered a “less healthy” product and therefore liable to the watershed proposed for TV programme services.

Amendment 140, page 217, line 3, in schedule 16, at end insert—

“(da) a drink product is ‘less healthy’ if it is an alcoholic product in accordance with the Department for Health and Social Care’s Low Alcohol Descriptors Guidance, published in 2018, or future versions of that guidance;”

This amendment ensures that alcohol is considered a “less healthy” product and therefore liable to the watershed proposed for TV programme services.

Amendment 141, page 218, line 27, in schedule 16, at end insert—

“(fa) a drink product is ‘less healthy’ if it is an alcoholic product in accordance with the Department for Health and Social Care’s Low Alcohol Descriptors Guidance, published in 2018, or future versions of that guidance;”

This amendment ensures that alcohol is considered a “less healthy” product and therefore liable to the online ban.

That Schedule 16 be the Sixteenth schedule to the Bill.

New clause 55—Nutrient profiling model—

“Before making any adjustments to the nutrient profiling model used for the purposes of regulations under the Communications Act 2003, or of any other enactment, the Secretary of State must undertake a full and open formal consultation.”

This new clause would insert a requirement for a consultation before any changes can be made to the Nutrient Profiling Model.

[Dr Whitford]

Basically, clause 125 is just schedule 16 —there is nothing very much in clause 125. I sat on the Health and Social Care Committee when we talked about trying to tackle obesity, which is a growing harm across the UK, giving rise to heart disease, diabetes and so on, and the difficulties of trying to regulate the advertising of unhealthy foods, particularly foods with high fat, salt and sugar. I welcome the fact that there is an attempt to tackle that issue in broadcasting, streaming and particularly online.

I have concerns that the exemption for small and medium-sized enterprises could be worked into a loophole at a later date by large companies simply employing multiple small advertisers or restructuring themselves to get away with still advertising. I would be grateful if the Minister could explain that exemption, because unhealthy food is just as unhealthy whether made by a small or a big company.

Broadcasting and online regulation are clearly reserved matters, and I totally respect that, but public health is devolved, so I would welcome clarification from the Minister on exactly how the devolved Ministers will be involved, how their public health policies will be respected, and how they will be consulted.

Proposed new section 368Z20(3) of the Communications Act 2003 gives power to amend by regulation Acts of the devolved Parliaments, and proposed new subsection (4) states that the Secretary of State can consult who they think appropriate. I am surprised that at that point there is no mention of consulting the devolved Governments. I totally accept that it would not be a matter of consent, but yet again there is absolutely no mention of consultation with or involvement of the Public Health Ministers in the devolved nations.

[Alex Norris]

It is a pleasure to speak to this important clause, which sets out restrictions on advertising less healthy food and drink. I echo what the hon. Member for Central Ayrshire said about its importance and the general commitment to it across the House. Importantly, it also gives me an opportunity to put on the record a message of thanks to the hon. Member for Bury St Edmunds (Jo Churchill) for all the work she did in this area while a Health Minister. She has moved to a new post during the Bill’s consideration, but she championed this provision for a long time and fought very hard for it, so I have no doubt that she will be glad to see it included in the Bill.

These measures form part of the Government’s obesity strategy, which is coming through the system bit by bit. The strategy has largely come through in secondary measures, so I welcome the fact that this provision has been included in the Bill, because it gives us an opportunity to propose improving amendments. Is the Minister able to explain why other provisions in the strategy have not been brought forward in this way? For example, we have considered a statutory instrument on showing calories on menus, which I dare say all Members will have received something about in their mailbags, because it is a contentious and emotive topic, with many shades of grey. That provision would have been improved if we had had a chance to amend it, so I am sad that we instead got a “take it or leave it” measure. I do wonder why the entire obesity strategy was not put through in this way.

Turning to what is before us, ensuring that we do not see the aggressive promotion of products high in fat, sugar and salt, particularly to our nation’s children, is an important step in reducing the obesogenic environment we live in. We know that one in three of our children leave primary school overweight and one in five are obese, and we know the lifelong impact that that has on physical and mental health, such as the links to diabetes, musculoskeletal ailments and depression. We also know the impact on children’s education, as they go to secondary school and beyond, and on their prospects in the world of work.

It is a well-established and long-standing precedent in this country that we try to protect children from exposure via the television by using a watershed, so it makes sense to consider these products within that scope. Of course, the nature of the content we all consume—children are no exception—has changed beyond all recognition in my lifetime. The explosion of the internet and its pre-eminence in our lives has provided new advertising space for traditional means—banner ads, pop-up ads and similar—but there is also a much broader platform. Today is probably not the day, certainly not in the witching hour of this Committee, to get into the influence of culture and how the entertainment landscape is changing—not least because I feel woefully underqualified to talk about it—but the point is that there are extraordinarily novel ways of connecting with people, especially young people. It is therefore right that we in Parliament enter this space to try to create the safest possible environment.

I will say, alongside this, that I am surprised that we have not yet seen the online harms legislation—it seems to have been coming through the system for a very long time indeed—because it would sit very neatly with this. I hope there will be a sense of trying to weave this in with that in due course.

The Government’s answer here goes beyond a watershed and into full prohibition. I hope that the Minister will take us through how that decision was reached. I understand from my conversations with industry, particularly those working in digital media, that they have offered a solution that would act as a de facto ban for children without being an outright ban. Given that we genuinely lay claim to being world leading in advertising in general, and in digital media in particular, we ought to listen if there are more elegant ways of doing that. I hope the Minister can cover the conversations being had with the sector and why this approach was chosen, not a slightly more nuanced one. Perhaps it was considered too complicated, but we need to know that.

As the hon. Member for Central Ayrshire says, clause 125 inserts schedule 16 into the Bill. As that is where the meat is, I want to probe the Minister on a couple of points. First, on the fines regime, what are the sanctions in the Government’s mind? Secondly, the schedule provides for regulations to follow. I suspect we will see a full regime, but when are we likely to see it? How far along are we, and what sort of consultation will there be? Thirdly—again, this will be a matter for regulations, but I hope the Minister might be drawn on it now as a concept—who does the burden fall on? Is it the advertiser or the platform? It might be both, and obviously it could not be neither. That will be a very important point going forwards.

Adding to the case the hon. Member made about small and medium-sized enterprises, we supported that conceptually in the statutory instrument on calories on menus because there was agreement that it was reasonable to say that these things would be a significant burden for a small operator, which might have only one or two members of staff. I do not think that applies in the advertising space. Again, we would be keen to understand how the Minister and his colleagues reached the conclusion they did.

Amendments 139 and 141 deal with alcohol. One of the few parts of the obesity strategy where we have departed from the Government’s view is the curious decision to remove alcohol, particularly with regard to calories and labels. We all know that alcohol is a less healthy product—I may well be the billboard for that, certainly when it comes to weight—so why has it been left out? Our amendments are more probing than an attempt to actually change the Bill, because I hope that alcohol has already been covered. However, in the obesity strategy in general, it seems to have disappeared, which seems very odd. I hope that the Minister can explain his thinking on that.

New clause 55 seeks to protect the nutrient profiling model. According to gov.uk, the NPM

“was developed by the Food Standards Agency in 2004-2005 as a tool to help Ofcom differentiate foods and improve the balance of television advertising to children. Ofcom introduced controls which restricted the advertising of HFSS foods in order to encourage the promotion of healthier alternatives.”

So far, so good. We would say that that principle is sound today and will be sound going forward; that is why we are keen to see it in the Bill. It is crucial that we continue to uphold those standards, but we know that foods change. We know that our understanding of what different nutrients mean for us or our children changes over time. We know that the biggest prize in this space is about reformulation, as much as it is about anything else, which would put more stresses on the NPM. I am keen to hear a full commitment from the Minister today that before meaningful changes are made to the NPM, they will be put out to proper consultation and that industry and consumer groups will be properly engaged, along with anyone else who may have an interest.

I will finish with amendment 113, in the name of the hon. Member for Central Ayrshire. I have made the arguments around engagement through consent, mutual good faith and co-operation from Ministers multiple times, and I hope to hear that in closing.

Clause 125 is very important, and we would like to know a bit more about schedule 16. I would be keen to hear that the issues raised in our amendments are covered elsewhere or at least to have a commitment to that. Finally, I would like to hear a bit about the nutrient profiling model.

--- Later in debate ---

[Edward Argar]

This is an important clause and set of amendments, so I fear I may detain the Committee on them for a little while. However, it is important that we air a number of points. I am grateful to my hon. Friend the Member for Eddisbury, the hon. Member for Ellesmere Port and Neston and others, because when we talk about digital platforms, including in other pieces of legislation and, indeed, in democracies around the world, we are essentially grappling with whether they are platforms or publishers responsible for content. I think it is fair to say that that debate continues in legislatures around the world, which presents a fundamental challenge.

I will pick up on a few questions while they are fresh in my head, and I suspect that I will cover the others in my prepared remarks. The hon. Member for Ellesmere Port and Neston asked why there is no watershed equivalent online, and how that might operate. The short answer is that it reflects the nature of online media: it is on demand, rather than linear, as with a terrestrial or satellite broadcast, though we see slight changes to that now, with Sky boxes—other online platforms are available for TV—the ability to record things, catch up, and so on. The situation is changing, and is not quite as binary as it used to be, but that is the primary reason.

If it is agreeable to you, Mr McCabe, I will discuss the amendments first, then turn to clause 125 and schedule 16. I hope that, with my extensive notes, I will be able to mop up and scoop up a number of the questions asked. If I do not, I will ask my officials to have a scan of Hansard, and I will endeavour to write to hon. Members prior to Report to cover any points that I omit. I will then address new clause 55, which relates to the clause and schedule.

I am grateful for the opportunity to discuss amendment 113, which would require the Secretary of State for Health and Social Care to obtain the consent of the DAs before any of the regulation-making powers granted by schedule 16 of the clause were exercised. As I am sure members of the Committee will be aware, the provisions in clause 125 and schedule 16 on advertising less healthy food and drink will extend to the whole of the United Kingdom.

We consider the provisions in this part of the Bill to be primarily focused on online services and broadcast restrictions, which are not devolved realms of responsibility. I appreciate that the hon. Member for Central Ayrshire and her colleagues in the Scottish Government might have a different interpretation of the same point—it is in the nature of the constitutional settlement that such discussions occur—but telecommunications and internet services remain reserved matters under the devolution settlement. The UK Government have made it clear that the primary purpose of the provision on the advertising of less healthy food and drink on TV and internet services is to regulate content on reserved media, internet and broadcasting. On that basis, we hold to the view that it is reserved. The purpose is not incidental—hence our argument that it does not fall within the devolved provisions and the devolved remit—but I suspect that we may return to this debate in the coming months.

[Dr Whitford]

I totally recognise, as I recognised in my remarks, that this area is reserved, both as regards broadcasting and online, but obviously the nations consider taking different public health approaches. Given that this is a UK-wide approach, it is important that it is joined up. I totally accept that the Minister is not interested in accepting consent, but there is no mention in the clause of consulting. I would have thought it important that there be discussion of the public health approaches of the four nations, in order to ensure that centralised policy in this Parliament lines up and reflects policies across the UK.

[Edward Argar]

I take the hon. Lady’s point. Although we did not think it necessary to put “consult” in the Bill, I accept that a joined-up approach to public health matters across the four nations of the United Kingdom is beneficial. I expect close working at both official and ministerial level to continue, and I therefore expect consultation and discussion to be ongoing.

As I am sure members of the Committee would agree, the restrictions on advertising on TV and internet services are crucial in contributing to the Government’s goal of tackling childhood obesity, and I welcome what I think is cross-party support for that goal. Through these provisions, we have the opportunity to remove up to 7.2 billion calories per year from children’s diets in the UK. None the less, for the reasons that I have set out, the Government believe that amendment 113 is not appropriate in this context, so I hope the hon. Lady will withdraw it.

I am grateful for the opportunity to address amendments 139 to 141. As the Committee will know and as I have said, tackling obesity is a priority for the House, irrespective of which side one sits on. That has been brought into sharp focus throughout the covid-19 pandemic. Introducing advertising restrictions for less healthy food and drink products is one of the many policies that the Government are bringing forward to tackle this issue. Following extensive consideration of the evidence submitted and comments made by stakeholders during the consultation exercise, we have announced that we will introduce a 9 pm TV watershed for advertising for less healthy food and drink products, and a restriction on paid-for advertising of such products online.

Amendments 139 to 141 would expand the definition of “less healthy products” to include alcohol, which would have the effect of making alcohol advertising liable to the watershed proposed for TV programme services, and to the online restriction of paid-for advertising. The UK Government are committed to ensuring that children and young people are suitably protected from alcohol advertising and marketing through a set of rules in the UK advertising codes. Restrictions and limitations laid out in the UK advertising codes provide that alcohol advertising may not be featured in any medium where more than 25% of the audience is under 18. Alcohol advertising must not be likely to appeal strongly to young people under 18, reflect or associate with youth culture, or show adolescent or juvenile behaviour—I make no comment there about the behaviour of the House on occasions. No children, and no one who is or appears to be under the age of 25, may play a significant role in advertising alcoholic drinks. The advertising codes apply to broadcast media and non-broadcast media, including online advertising. We do not believe it is necessary to consider alcohol a less healthy product in this context, or to apply the new restrictions to it.

As we will discuss in more detail shortly, clause 125 and schedule 16 are aimed at reducing the exposure of children to advertising for less healthy food and drink, and at reducing the impact of such advertising on child obesity. Less healthy food and drink products are unique, as they are not age-restricted at the point of purchase, unlike alcohol.

--- Later in debate ---

I have probably spoken enough on this important clause. As I look longingly at my glass of water, I commend the clause to the Committee.

[Dr Whitford]

I do not plan to press my amendment to a Division, but I encourage the Minister to put in the Bill the consultation that is required. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 125 ordered to stand part of the Bill.

Schedule 16 agreed to.

Clause 126

Hospital food standards

[Alex Norris]

I beg to move amendment 137, in clause 126, page 107, line 18, leave out “hospital”.

This amendment would make the power to impose food standards applicable to all premises within the remit of the Care Quality Commission, rather than just hospitals.

--- Later in debate ---

[Alex Norris]

I am really pleased that we have reached clauses 128 and 129, on fluoridation of water supplies. This is something that I am personally very enthusiastic about, so I want to make a few points on it. Fluoridation is a very important venture. Oral ill health can be a hidden and very personal but insidious ailment. It is the single biggest reason for hospital admission among our children. A 2015 review of children’s dental health found that a quarter of five-year-olds have decayed teeth, with an average of 3.4 per child.

[Dr Whitford]

I wonder whether the hon. Member, like me, is surprised that the opportunity offered by this Bill has not been used to introduce a child dental health programme in England similar to Childsmile, which has existed in Scotland since 2007, or the scheme that Wales has had since 2011. Although there was agreement a couple of years ago to establish pilot sites across England, data on the impact in Scotland, where many areas had significantly poor dental health, has been available for four years. I am just surprised that something like that has not been included in this Bill, when we are talking improving the dental health of children and addressing the fact that, as the hon. Member mentioned, dental clearance—the removal of significant numbers of teeth—is the commonest reason to administer a general anaesthetic to a child. That is quite a shocking indictment.

[Alex Norris]

I am grateful for that intervention; I was going to turn to that issue next. Not only have opportunities been missed over the last decade to invest in oral health, but we are actually going backwards. Supervised tooth brushing and other high-quality evidence-based interventions, such as the models that the hon. Member mentioned, have disappeared because of this Government’s cuts to the public health budget. Of course, the savings from those cuts are hoovered up very quickly by the costs that they generate elsewhere in the system. It is very sad, it results in a lot of pain and lost potential for the individual, and it is bad for the collective.

Fluoridation is one element in trying to put that right. Putting fluoride in our water is a really good, evidence-based intervention that is proven to work. For every pound spent in deprived communities, there are savings of nearly £13 within just five years, and of course every independent review of fluoridation has affirmed its safety. As a nation, we ought to be creating new fluoridation schemes targeted at the communities that would benefit the most. The current system does not work, as I remember well from my time in Nottingham. Currently, a local authority has to decide to enter into this space, build support, and then, with support from Public Health England and the Secretary of State, move to implementation. However, that generally fails for two reasons.

First, our political boundaries do not match up very accurately with our water boundaries, so where we would physically tip in the bag of fluoride does not fit with our political geographies. That creates issues between authorities such as mine, where the case would be very strong because of our oral health outcomes, and bordering authorities that would have less interest because they have better oral health outcomes. Secondly, this issue is contentious. Local authorities have an awful lot on, and it is very hard for a local council to make this the one totemic fight in its four-year term. There are only so many big things that a council can take on at once, and fluoridation gets beyond the bandwidth of local authorities.

We support the principle behind clause 128; bringing the Secretary of State into this is a very good idea. The position of the Secretary of State, once removed from the entire country, can make different geographic decisions sensibly align with water boundaries. He is perhaps also in a stronger position to help with some of the political issues, so in concept we support that.

Amendments 149 and 150 are a pair. Why are the Government keen to swap the current local system for one that is nationally driven, when we could have both? As I have said, we support adding the heft of the Secretary of State to the local expertise of our councils, but why remove councils from the process? Although clause 128 gives new powers to the Secretary of State, our argument is that local authorities should be able to retain their powers in the event that they might want to use them. This is a cost-free proposal. It merely expands the range of possible approaches and paths towards fluoridation, and it promotes local decision making.

Clause 128(2)(d), which inserts new subsection (6B) into section 87 of the Water Industry Act 1991, is a little bit naughty, and amendment 150 seeks to address it. According to page 43 of the Government’s community water fluoridation toolkit, if a local community can successfully get itself together to get a scheme going, Public Health England is required to meet the reasonable capital and operating costs. I presume that that responsibility ported to the new Office for Health Improvement and Disparities when it came into force at the beginning of this month. However, subsection (6B) removes that provision and instead allows the Secretary of State to direct another body—I presume it will be the local authority—to pay for the scheme. Therefore, instead of being paid for nationally, the scheme will be paid for by a body chosen by the Secretary of State. That will be a barrier to the creation of a scheme.

I think that local authorities will be less keen to engage with the Secretary of State in implementing a scheme if they feel that they will have to pay for it. Their budgets are exceptionally stretched—I suspect they will not get much support tomorrow—and the benefits do not generally go back to local authorities. Of course, the benefit goes to the community in general, but in terms of organisations and cashable benefits, they would be health service benefits rather than local authority benefits. I do not think that the proposal promotes integrated thinking. The amendment seeks to address that, and I hope that the Minister will reflect on it. As I have said, I think that, broadly speaking, the clauses do the right thing, but their current effect will be to replace a locally led system with a nationally led one, when actually we could just have both.

To conclude, over the past year we have stood shoulder to shoulder with the Government in expressing to communities up and down the country that vaccines are not only safe but necessary. The objections that we receive come from those who argue in the face of evidence or who rely on conspiracy theories. The same is true of arguments against fluoridation. It is an evidence-based, safe and highly effective intervention. That is not to say that it is easy to do. It does not require behaviour change but it has a remarkable impact, so I am keen to hear from the Minister not only that the Government want to put this in the Bill, but that they want to get on with doing it in communities such as mine, which will benefit. If they do that, we will stand shoulder to shoulder with them again, and I think it will be an exceptionally important breakthrough in oral health in this country.

Health and Care Bill (Thirteenth sitting)

Philippa Whitford Excerpts

Committee stage
Tuesday 19th October 2021 Public Bill Committees

The clause will help by allowing organisations to demand such information of each other. That is probably second-best; it would be better for information to be readily shareable. That is why Labour are proposing this amendment. We have heard that the public will not differentiate between the different processes, and I cannot quite understand why the Government propose to make them.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

It is important that we recognise the different types of data. The clause is talking about anonymised data, from which we are looking at performance standards, outcome standards and the percentage of patients who had a certain treatment. It is not talking specifically about identifiable data. We also have fully identifiable data with patient details, and in between those we have what is called pseudonymised data, which is like a blurry picture. However, the public are also concerned about that data because they fear that when it is triangulated with other sources somebody can be identified.

It is important that clinical data—the basis of communication between a GP, a breast surgeon like me and an oncologist in a centre—moves around and can be used. However, we must recognise that, as the hon. Member for Nottingham North clarified with the survey that he quoted, the public are concerned about their data. Beyond someone’s biological self, the most important thing that relates to them is their personal data, and after the care.data scandal of seven years ago and Google DeepMind, the public do not trust programmes that suddenly appear with little discussion and consultation and that talk about taking data. There is a huge public education process to be carried out, but equally, in the end, confidence is undermined by the talk about sharing data, whether identifiable or pseudonymised, with commercial companies.

Anonymised data is not an issue. For example, of the patients who took a drug, 10% got a side effect and, of those, 3% had previous heart disease. That is useful information; it does not identify patients. The public’s concern is that commercial companies, including pharmaceutical companies, could access pseudonymised or full data that would identify them. It is important that the Government explain the three types of data and how they are used for utterly different things. The public have no issue with Public Health England or academics working to recognise what is happening with heart disease or cancer in the UK and learning from data. However, they are concerned about the potential commercial use and potential revelation of their personal data.

The Government have a long job to do to convince the public. The danger is that the baby goes out with the bathwater and we lose not just research but integrated functioning in NHS England. It is important to recognise that the data held in the devolved health services is completely separate. I will come to that on clause 85.

[Karin Smyth (Bristol South) (Lab)]

Unfortunately, Mr Bone, you missed our last sitting, in which I relayed to other Members my long career in the NHS and my experience on these matters, but I will start in the spirit in which I left off. Having worked at a clinical commissioning group at the time of the care.data episode, I absolutely concur with the comments made by the Labour and SNP Front Benchers, my hon. Friend the Member for Nottingham North and the hon. Member for Central Ayrshire.

We have had a lost decade, which is a great shame because the use of such data—we have learned much more about data and science during the pandemic—can save lives. My hon. Friend the Member for Nottingham North mentioned meeting a patient who could perhaps have been helped better. At the end of the day, that is what we want to make happen.

My experience inside the health service will not be everybody’s, but on information governance the attitude to data is very well developed and sophisticated, and people take it incredibly seriously. When we started on the care.data episode, the value of that really seemed self-evident in the system.

We need to bear in mind, as we look at the issue as legislators, that the people who deal with it day to day to effect what they see as positive change may be operating on one track and be completely taken by surprise by the public reaction. I remember trying to understand it myself; I am not a data specialist, but I tried to understand the different channels of what was being tried at the time. I explained to more senior managers that it did not sit right with me—I did not understand where it was going or what it meant for me. If I did not understand it, I knew that if it were not explained carefully, as the hon. Member for Central Ayrshire says, the general public would not either.

There is a missed opportunity. I ask the Minister to consider our very helpful Opposition amendment, not just in his role as a political leader in the Government, but by thinking about the rest of the system and how we can support it to do what it needs to. We absolutely need to bring the general public with us. Because of the mistakes of the past, I would argue that that we now require quite a mammoth exercise: not just differentiating between types of data, but considering who owns it, how we give it and what powers we will have in future.

As my hon. Friend the Member for Nottingham North said, the opt-out was really quite an incredible exercise over the summer. I think that has gone below the political radar in terms of the numbers of people who have taken that really quite difficult step. Part of this, as we will come to later, is about trust in GPs and GP data, which is where so much of our individual source data goes. The role of GPs also has to be brought very carefully along the path, because that data is of course very valuable for them.

The commercialisation concerns people, but beyond that, this is about our very essence—our trust in the system and the clinicians we see, who most of the time are our GPs. The Government need to step back—although not for too long, because they have already stepped back for a decade—and consider what is the best public exercise that they could embark on to resolve this problem, as the system and all of us really need.

Accepting our amendment in the spirit in which it was moved would be a step in the right direction. If the Government do not accept it, at the very least we should understand what they propose in its place.

--- Later in debate ---

[Edward Argar]

I am happy to bear in mind those sensible points as we look to the formulation of regulations. I am grateful to the shadow Minister.

Question put and agreed to.

Clause 84 ordered to stand part of the Bill.

Clause 85

Medicine information systems

[Dr Whitford]

I beg to move amendment 65, page 77, line 3, at beginning insert “Subject to subsection (3A),”

This amendment, together with Amendment 66, would allow specified people and organisations who are required to provide information for a registry or information system to provide information to NHS Digital in pseudonymised form.

[The Chair]

With this, it will be convenient to discuss the following:

Amendment 66, page 77, line 12, at end insert—

“(3A) The provision mentioned in subsection (2)(b) must enable those required to provide information to provide information in pseudonymised form.”

See explanatory statement to Amendment 65.

Amendment 64, in clause 85, page 77, line 33, at end insert—

“(5A) The Scottish Ministers may exempt persons to whom subsection (5) applies and who are in Scotland from any requirements imposed by regulations under this section.”

This amendment would allow Scottish Ministers to exempt providers in Scotland from participating in any particular registry or medical devices information system.

Amendment 61, in clause 85, page 77, line 34, at beginning insert “Subject to subsection (6A),”

Amendment 62, in clause 85, page 77, line 47, at end insert—

“(6A) Provision under subsection (6)(c) and (d) may only provide for the disclosure, use or (as the case may be) further disclosure of information for purposes of public health analysis, and must prohibit disclosure, use or further disclosure of information for commercial use.”

This amendment would require that the disclosure of information will only be for the purposes of public health analysis and not for commercial use.

Amendment 63, in clause 85, page 78, line 1, leave out

“includes power to vary or revoke the directions by a subsequent direction”

and insert “—

(a) includes power to vary or revoke the directions by a subsequent direction, and

(b) is subject to the consent of—

(i) the Scottish Ministers insofar as the direction makes provision for any matter which falls within the legislative competence of the Scottish Parliament,

(ii) the Welsh Ministers insofar as the direction makes provision for any matter which falls within the legislative competence of Senedd Cymru, and

(iii) the Northern Ireland Ministers insofar as the direction makes provision for any matter which falls within the legislative competence of the Northern Ireland Assembly.”

This amendment would require the appropriate authority to obtain the legislative consent of the devolved governments before powers under this clause are exercised.

Amendment 60, in clause 85, page 78, line 9, at end insert—

“(8A) Regulations under subsection (1) may not be made without the consent of the Scottish Ministers, the Welsh Ministers and the Northern Ireland Ministers.”

This amendment would require the Secretary of State for Health and Social Care to obtain the legislative consent of the devolved governments before powers in this clause are exercised.

Amendment 67, in clause 85, page 79, line 8, at end insert—

“(4) Provision under subsection (3) which changes the territorial extent of provisions of Chapter 2 of Part 9 of the Health and Social Care Act 2012 (constitution and functions etc of the Health and Social Care Information Centre) and—

(a) relates to Scotland may only be made with the consent of the Scottish Ministers,

(b) relates to Wales may only be made with the consent of the Welsh Ministers, and

(c) relates to Northern Ireland may only be made with the consent of the Northern Ireland Ministers.”

This amendment would require the Secretary of State for Health and Social Care to obtain the legislative consent of the devolved governments before regulations under this provision are made.

[Dr Whitford]

I should like to speak to the whole group of amendments because they all relate to one another—amendments 65, 66 and 64 are very much about the form of data, which I discussed earlier.

The principle of the clause relates to the powers that are going to be given to the Health and Social Care Information Centre. It is given a power to require, so it can demand data. As a Scottish MP I am aware that data handling under NHS Scotland is different. Our data systems are different. We have a real concern that there is no mention of consultation, let alone legislative consent. For the public across the UK, the way in which their data is handled, who owns and controls their data and what is done with it are critical. We did not take part in the care.data project or Google DeepMind. There has not been any attempt within NHS Scotland to commercialise data, but we have very innovative working from Public Health Scotland and the academic universities. We do not want to see that undermined.

It is disappointing that there is no recognition in the clause that there should be both consultation and consent from the devolved Health Ministers. Proposed new section 7A(2) and 7A(4) give the power to require, and amendments 61 and 62 relate to proposed new section 7A(6) on how data is used and to whom it is disclosed, which we discussed earlier.

On proposed new section 7A(3) relating to the form of data, I totally support registries, particularly of devices. We are all aware of vaginal meshes. I remember wading through case sheets at the time of the PIP breast implant scandal, even though I knew we had never used them, because the only way to prove that none of my patients had had them was to go through literally every single operation note and sign it off.

Amendments 65, 66 and 64 relate to the form of data and specify that the Health and Social Care Information Centre would have power to decide what kind of information would be included in individual patient information. Amendments 61 and 62 relate to what we talked about earlier: disclosure to third parties, which is of public concern.

Amendments 63, 60 and 67 relate to proposed new section 7B(5)(b), which is the power to change the territorial extent. Although most of these provisions talk about getting data on social care from local government in England, it is completely within this Bill that the information centre would be able to demand data from devolved health centres and that the Bill’s territorial extent could be changed later by regulation, and without consultation, let alone legislative consent. All my amendments relate to the same basic principle: the four health services run separately, use different data systems and have different principles for sharing, using and analysing data, and whether they feel that sharing that with commercial companies is actually in the best interests of research, of patients and of clinical communication.

It is not necessary for pharmaceutical companies to have access to pseudonymised or individual data to study the functioning of their drugs. They require analysed, anonymised data that has been handled by trusted academics and researchers, whether from Public Health England or working in collaboration with universities. The amendments call for both consultation and legislative consent, without which the devolved health services and their principles of keeping data within the NHS and the public health system will be undermined. The Government need to talk to the devolved nations about that. They saw this Bill the day before it was launched. That is not consultation. That is not collaboration. That is not involvement.

It may well be that Ministers feel that a central registry of individual, identifiable details makes sense, or they may feel that it should be pseudonymised and brokered by the individual health services, because it will be those services that will have to contact patients if devices are found to be unsafe or need reviewing or if people need further surgery. This is about the lack even of consultation. As we have talked about all morning, data is so important to the public and to patients that legislative consent should be put into all those clauses of the Bill. I am disappointed that none of the devolved Ministers got to see the Bill when it was being put together, and as we heard from the Welsh Health Minister during the evidence sessions, her concerns are exactly the same as those of the Scottish Cabinet Secretary for Health and Social Care.

That is what I call for the Government to do, and I look forward to the Minister’s comments.

--- Later in debate ---

The Government are committed to ensuring that all patient data are captured efficiently, stored safely and used effectively, including those from patients within the devolved Administrations. To reiterate one more time, I commit to continuing to work closely with the devolved Administrations in discussions on this. I cannot promise what the outcome of those discussions will be; that would be wrong while they are going on. However, I commit to continuing to engage in good faith with the devolved Administrations to see whether we can make further progress. On that basis, I hope that the hon. Member for Central Ayrshire might consider withdrawing her amendment, but obviously that is her choice.

[Dr Whitford]

I welcome the Minister’s constructive comments. Obviously, I am not party to the consultations that are going on. I am still disappointed that there was not provision for both consultation and, where necessary, legislative consent. As the Minister clarified, those registries will absolutely contain individual patient data. As a surgeon, of course I support the principle of registries and how they are put together, but the responsibility for data in NHS Scotland and in the other devolved nations lies with the Health Ministers of those nations. It is disappointing that there was nothing put in these provisions.

I hope that the consultation goes forward. I will therefore not push the amendments. Obviously, I reserve the right to table amendments at a later stage. However, it is important that the Government recognise that the same concerns that we have heard around GP data in England would then apply in Scotland, where we have not taken any kind of commercial approach in the past, and that there will be a recognition of the role of those health Ministers. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Edward Argar]

As we have discussed in the context of the various amendments, clause 85 inserts a new chapter, 1A, into the Medicines and Medical Devices Act 2021. It introduces a new power to make regulations that would provide for one or more medicines information systems to be established and operated by NHS Digital. The power may be exercised only for the specified purposes set out in the provision: namely, purposes relating to the safety, quality and efficacy of human medicines and the improvement of clinical decision making in relation to human medicines. The clause sets out the types of provisions that could be made by the regulations and, to ensure full engagement, includes a mandatory public consultation requirement that must be fulfilled before any regulations are made.

Medicines information systems will enhance the capture and collation of information on the uses and effects of specific medicines across all four nations, including medicines prescribed to patients by the NHS and private healthcare providers. That information will be used by the Medicines and Healthcare Products Regulatory Agency to enhance post-market surveillance of medicines by enabling the development of comprehensive UK-wide medicines registries, which will be used to drive improvements to patient safety. The evidence generated through medicines registries can be used to inform regulatory decision making, support local clinical practice and provide prescribers with the evidence needed to make better-informed decisions. For example, where safety concerns have led to the introduction of measures to minimise risk to patients, comprehensive medicines registries will enable early identification and investigation of cases where those measures are not being followed, so that additional action can be taken to improve safety at national, local or individual patient level.

The clause also ensures that we have the right powers to promptly modify what data is collected by NHS Digital as the need for new or different information about a medicine emerges in the light of changing or developing public health needs. That will provide the ability to rapidly respond to emerging risks to patient safety if and when they develop.

Given the overarching aims of the clause, it makes sense that the provisions will ultimately sit within the Medicines and Medical Devices Act 2021, which has a similar power for establishing information systems for medical devices in section 19. To ensure the effective operation of both the medicines information systems and the medical devices information systems, the clause also introduces necessary technical amendments to the MMD Act.

The clause drives forward improvements to the safety measures that protect patients in the UK against avoidable harm from medicines, and supports the need for the establishment of registries as recommended in the independent medicines and medical devices safety review, published last year. The clause directly supports putting patient safety at the heart of regulatory decision making. It will ensure that we have robust and comprehensive evidence to address public health concerns, and enable mechanisms to track the use and effects of medicines, based on public health needs. I therefore commend the clause to the Committee.

Health and Care Bill (Fourteenth sitting)

Philippa Whitford Excerpts

Committee stage
Tuesday 19th October 2021 Public Bill Committees

For those reasons, I am tempted to encourage the hon. Member for Central Ayrshire not to press her amendment to a vote. I commend clauses 86 to 92 to the Committee.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

A lot of this covers the issues that we discussed in relation to data, consultation and consent. I respect that these are UK-wide bodies, whereas data is within the devolved systems, so that was an even bigger issue, but there must be recognition that although health is devolved, the regulation, licensing and registration of staff for bodies of this sort affect the devolved health services. There should at the very least be proper, genuine consultation, rather than changes simply being made.

As we discussed this morning, we saw how NHS Digital—in essence, an England-only service within NHS England—is now being turned into the Health and Social Care Information Centre, which is UK-wide. We already have the information and statistics division in Scotland, so changing the ability of the Secretary of State to change arm’s length bodies may indeed affect what happens in the devolved health systems. Reference is made to the Human Fertilisation and Embryology Authority and the Human Tissue Authority simply to respect that those health services are under the control of the Welsh and Scottish Parliaments and the Northern Ireland Executive, but decisions made here will have an impact on them.

I welcome the Minister saying that NICE would not be forced on Scotland—we have the Scottish Medicines Consortium, and the Care Inspectorate rather than the Care Quality Commission. However, that is people’s fear because it is not explicit here—either through consultation or consent—that bodies that have been set up for almost two decades, that are integrated with our health system and functioning well, could suddenly be rolled over. It is important that the Minister points out that clause 89(6) is merely consequential. It increases anxiety that the Minister here can, simply through regulations, revoke, repeal and amend Acts of the Scottish and Welsh Parliaments without consent or even consultation.

I do not see an issue with a name change, but there is an issue with a Bill of this size and complexity being published and Ministers in the devolved Administrations seeing it only the day before. That does not show respect between the Governments. That is something that I hope, as the provision is taken into regulations, will change. I do not plan to push the amendment to a vote because the Minister said that he is consulting the Scottish and Welsh Cabinet Secretaries, but it should not have come to this. Respect for devolution should have been implicit in the Bill from the start.

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to resume with you in the Chair, Ms Elliott, and to move on to part 3. Of the various parts, it has possibly had the least impact on my mailbag, but it is important. I am a little troubled by some of the provisions and want to probe them a bit.

The Minister gave a good and characteristically cogent explanation of what is in the Bill, but not of why it is there. That explanation was much shorter, so I want to come back to that because I do not think it is clear what problem the Government are seeking to solve. Has a significant risk to the health and wellbeing of the nation been caused by the Secretary of Secretary’s inability to remove functions from one organisation to another more quickly? I do not think that is the case. The Minister made the point about a rather fractured service and the need to be able to act more swiftly. I will revisit those points shortly.

Clause 86 specifies the organisations that the Secretary of State can delegate or transfer functions to: Health Education England, the Health and Social Care Information Centre, the Health Research Authority, the Human Fertilisation and Embryology Authority, the Human Tissue Authority and NHS England. I was surprised not to see the UK Health Security Agency in that list and I hope the Minister will come back to that.

Clause 87 allows the Secretary of State to move functions between the organisations, and clause 88 provides for the Secretary of State to permit them to exercise functions on the Secretary of State’s behalf. Are we really saying that there are not decent, appropriate and effective ways to do that already? For example, the UK Health Security Agency is a relatively new body and it will take time for it to settle in and find its level. Do we really believe that there are no mechanisms to ensure that it can exercise functions on the Department’s behalf, or that there might be a public health information function currently exercised by NHS England that the agency might be better able to deliver in the future, but cannot because it is not covered by this legislation? I find that hard to believe. Are we saying that there will be an alternative route for that? I cannot understand why there would be a different way of doing that.

If that is really necessary, why is the Government’s instinct to do it by regulation? If there are problems today that perhaps the past challenging 18 months have revealed, we have got primary legislation here, so we could make whatever changes the Secretary of State wishes to make to the organisations on the face of the Bill. Obviously, that would not help with new and emerging problems, but what are they? What examples have happened recently? It feels as though we have a solution in search of a problem to solve.

Clause 87(3) basically prevents the Secretary of State from abolishing NHS England. Well, we would hope so—that seems wise—but what of the other agencies? The Health and Social Care Information Centre was formed by the Health and Social Care Act 2012; the Health Research Authority and Health Education England were created by the Care Act 2014; the Human Fertilisation and Embryology Authority was formed by its own Act in 1990; and the Human Tissue Authority was created by the Human Tissue Act 2004. Are we really saying that we need a more direct ministerial route to dissolve or amend these bodies?

We have recent precedent for this: over the course of the past couple of weeks, or certainly over the past few months, the Government have taken Public Health England apart, taking some functions for themselves and creating a new organisation with the remaining ones. They were perfectly able to do it in that case, which would seem to me to be a very drastic case. Now, we think that was a very bad thing to do—I will continue to make that argument—but what I cannot understand is why, if the Government were able to do that then, they would not pursue the same routes in the future.

I would not argue the case against clauses 88 to 91, which form the blueprint for these powers, but I would argue against the rationale for them existing at all. Amendments 68 to 72 again seek to protect the devolved settlement: as the Minister has said, clause 92 provides for devolved nations to be consulted on changes that are within their legislative competence, but I am concerned that that consultation might not go far enough. If we consider a policy area as a devolved matter, that surely requires consent. I have heard some response to that point from the Minister, but we may well hear a little bit more.

Clause 92 lists who the Secretary of State “must consult”. As well as devolved nations, it includes the organisation in question and then anyone else the Secretary of State wishes to consult. That list does not expressly include the public or experts in the relevant discipline, for example, and I do not think that is sufficient. In reality, the decision over Public Health England was a rash one, made in its early stages by individuals who are not really involved anymore. In all honesty, nobody would have made the decision that was made: it was a situation in which, despite our desperate attempts to give the Government room to do so, they never quite managed to climb down. However, talking to the public and to experts would have helped the Government make a much better decision in that case, and I am surprised not to see those groups included on the face of the Bill. I hope that we will get an assurance that at least in the Minister’s mind, “anyone else the Secretary of State wishes to consult” would involve some experts, if not the public. I very much hope it would.

To conclude, we have gone back and forth on this topic in recent days, and we cannot support the provisions in this part of the Bill. They are Executive overreach, and there are recent examples of why these powers are unnecessary, because the Government can already do these things. During the proceedings on the Bill, the Minister has frequently told us that our amendments are not necessary because they are already covered elsewhere. I am going to gently turn the tables and suggest that these powers exist elsewhere, and therefore these provisions are not necessary.

--- Later in debate ---

[Edward Argar]

I will turn to that issue, but before I do I will address the question of why I think this is a proportionate and necessary change in the powers. As we have seen during the pandemic, there can be rapid changes and moves in the functions of those NDPBs, and we therefore cannot have a process that preserves in aspic a particular set of functions in primary legislation. I believe this is a proportionate measure that allows for flexibility around those functions around NDPBs, although in my view it does not encroach on the way they operate, hence the non-departmental public body point that the hon. Lady made. It strikes an appropriate balance.

The other point the hon. Member for Nottingham North made, which shades into the points from the hon. Member for Central Ayrshire, is that where a policy area is devolved, it should be that devolution settlement that takes primacy. The challenge is that, in a number of areas here, we see almost a hybrid of reserve powers and devolved powers.

We will come on to this after we have debated the Health Service Safety Investigations Body part, but it is a good illustration, so I will use it as an example here: if we look at reciprocal healthcare arrangements, which we will come to, the implementation or impact on the ground is to a degree devolved; it is about the organisation of health services in a particular area. However, the power to make international agreements is reserved.

Therefore, in spaces such as this, we come across complex challenges where there is no clear delineation for how to respect the devolution settlement and not intervene in aspects that are clearly devolved, while also striking a balance such that the devolved Administrations do not have a power of veto over a reserved matter. Those are the complexities we are wrestling with in a number of areas here, and I think that goes to the heart of the issues that the hon. Member for Central Ayrshire has been raising.

[Dr Whitford]

The Minister mentions the UK Health Security Agency, which was suddenly created in the middle of the pandemic—supposedly out of Public Health England, so I am not quite sure whether Public Health England still exists. There were comments made at the time by the then Secretary of State that this would now be a UK-wide body and would therefore override Public Health Scotland. Since the Minister raised this matter, I would be grateful if he could clarify, because that is exactly the nub of the issue, whether they are executive agencies or arm’s length bodies: it is suddenly enforcing a change in structure on the devolved Governments, when our Public Health Scotland is totally integrated with our health service.

[Edward Argar]

The hon. Lady makes a couple of points there. First, on the transition with Public Health England, to avoid a cliff edge—in the context of some of my conversations with the hon. Member for Nottingham North about different aspects of policy, that is perhaps not the best word—in the transition between two organisations, we have had for some months parallel running of the two. I believe, relying on my memory, that Public Health England finally transfers all its functions and ceases at the end of this month, and then we will see that transition. We have both in being for the time being, to ensure smooth operation of the actual functions they perform.

My understanding of the hon. Lady’s specific point about the public health arrangements that work in Scotland and that are a matter for the Scottish Government is that those relationships and that way of working will be able to continue. However, we saw in the European Union (Withdrawal Agreement) Act 2020 and the withdrawal agreement a way of working regarding the health security provisions that has a UK approach to working but fully involves each of the devolved Administrations, because we recognise that the threats are national—as in four nations—and we have seen that diseases and public health threats do not stop just before they get to Berwick, and vice versa. Therefore, we are keen to look at this in a four-nations way, and we have just been looking with the Scottish Government at the public health framework and how we work with it.

I am trying to reassure the hon. Lady that there is no intention to undo what works, but there is a recognition of the need for us to continue to work as four nations together on this. I hope she will be reassured that that helps to respect the devolution settlement; I suspect she may wish to probe me further in future debates, but that, of course, is what we are here for. I encourage hon. Members not to press their amendments to a Division.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[Edward Argar]

I am grateful to the shadow Minister for bringing this discussion before the Committee today. [Interruption.] I will talk for a little while to allow him enough time to have a glass of water to try to preserve his voice and mine for another few hours at least. As he set out, the amendment seeks to ensure that HSSIB would be able to make its own decision on whether to pursue an investigation requested by the Secretary of State and ask for funding; it would also ensure that if an investigation went ahead, the Secretary of State would have no influence on the detail of that investigation.

I reassure the hon. Gentleman that, as I said earlier, we remain fully committed to the independence of HSSIB, which is of course the reason why we want to establish it as a non-departmental public body with its own statutory powers. Under our approach, the Secretary of State would be able to direct HSSIB to carry out an investigation, but only if there has been an incident that has caused particular concern. The power to direct at subsection (2) is only in relation to carrying out an investigation; it is not about directing the outcome for an individual. That is an important distinction—we can ask them to do it, but it is not about directing the outcome. I believe that is right for the Secretary of State with responsibility for the health of the nation to have a power to direct the carrying-out of an investigation, so that he is able to respond to emergent or ongoing safety priorities or issues of concern, asking that they be considered.

The measure will ensure effective and proportionate accountability between the Department and its arm’s-length bodies, and between the Department and the House and the other place. However, while the Secretary of State may request an investigation, as I have said, he cannot direct the body on how to conduct any particular investigation and will have no role in it, as he does not have any such power. I hope that offers some reassurance to the shadow Minister. The measure therefore does not encroach on the independence of HSSIB’s findings, which are one of the key concerns that the amendments seek to draw out or shine a light on, so I hope I have provided some reassurance.

In addition, should HSSIB wish to discontinue an investigation, it may determine to do so, setting out the reason why it will not be investigating an incident. That would include any investigation, including one requested by the Secretary of State. HSSIB could discontinue an investigation, but would have to explain its thinking, which is not an unreasonable balance to seek to strike.

To turn to the question of funding, the amendment seeks to ensure that, in the case of a request by the Secretary of State to carry out an investigation, HSSIB may ask for additional funding. We have estimated, in our current analysis of workloads, HSSIB is likely to carry out up to 30 investigations a year, which allows sufficient flexibility to ensure that in the event that an investigation requested by the Secretary of State goes ahead, adequate resources remain.

On the process for the Secretary of State requesting an investigation, the limitations on the Secretary of State’s ability to be involved in the investigation, and the ability of HSSIB to determine whether it will pursue an investigation further, I hope that I have offered sufficient reassurance to the Committee. Therefore, I hope that the shadow Minister will consider withdrawing his amendment.

[Dr Whitford]

I want to raise with the Minister subsection (5), which calls on HSSIB to put out a statement on the issues that it is investigating with regards to an incident. However, that is right at the start of an investigation. Is he not concerned that, putting out a public statement of what the issue is at a point when no one has yet got to the bottom of that issue might be putting the cart before the horse? HSSIB might therefore twist the whole investigation into what its initial preconceptions are, instead of finding out the underlying cause.

--- Later in debate ---

That sets out very well why we would not expect or indeed want the High Court to become a regular adjudicator on the matters set out in clause 101.

[Dr Whitford]

In clause 100 there is discussion about the response to the report, and that is crucial. If this ends up just being a job creation scheme within HSSIB, it will have failed utterly. Having spent more than three decades in the NHS and been involved in multiple designs, redesigns, stakeholder events and so on, a lot of things get filed in that little round filing cabinet in the corner. Therefore, the response to recommendations and their coming into effect is critical.

I was on the Joint Committee on the Draft Health Service Safety Investigations Bill under the hon. Member for Harwich and North Essex (Sir Bernard Jenkin), and we went through this in detail over months. In Scotland, our approach is the opposite. We start at the other end, which is trying to prevent. The Scottish patient safety programme has been working on that since 2007— reducing not just hospital deaths, cutting post-op mortality by 37% within two years of introduction, but expensive morbidity such as pressure sores or wound infections that have an impact on patients and on the NHS.

HSSIB is looking at the other end. Obviously, it does not apply in Scotland, but it is something that I really welcome, and that we will watch with interest. I will not go into disclosure now. That will come later, but not seeing action, as the hon. Member for Ellesmere Port and Neston referred to, with recommendations that have already been made, simply demotivates people to engage in it all. It is critical that we see a response, and that there is a mechanism to see an answer.

The admissibility of the report is also critical if we want staff to be candid, particularly where they may be admitting an error or something that they regret, and there has been a systematic failure of its being prevented. It is often said that we can design safety nets so that an error that someone makes at 2 o’clock in the morning because they are tired can be prevented. We therefore need people to be willing to admit that, and we need those reports not to result in action against them. As we will see when we come on to disclosure, that does not pertain if illegal action has been taken, but I think the two clauses are critical. I do not see in clause 100, or anywhere, what will happen after the reports come out, and how we ensure that it results in an increase in patient safety.

[Edward Argar]

I take the hon. Lady’s point. As I set out in response to earlier amendments and preceding clauses, I believe that we have struck the right balance on the obligation to respond and act, but I acknowledge, as I frequently do in these Committees, her expertise, particularly in this area, having sat on the Committee that previously considered the matter. I think that we have struck the right balance, but I am always happy to reflect further.

I can give the hon. Member for Ellesmere Port and Neston, within bounds, the reassurance, or agreement with what he is saying, that he seeks, with a caveat: I would hope that transparency and publication should be at the fore, but in doing that, and determining the other points that he raised, as he acknowledged that is for HSSIB to reflect on and consider within the context of its independence. I would hope, and expect, that it would consider extremely carefully exactly such points as those that he made, because they sounded like sensible points, as is often the case with him.

Question put and agreed to.

Clause 98 accordingly ordered to stand part of the Bill.

Clauses 99 to 101 ordered to stand part of the Bill.

Clause 102

Powers of entry, inspection and seizure

--- Later in debate ---

[Justin Madders]

Clause 102 deals with power of entry, which amendment 125 seeks to qualify somewhat. There is no doubt that these powers are necessary. The evidence that Keith Conradi gave to the Committee was that HSIB would have liked to have had the powers already, so it welcomes their inclusion in the Bill. One would hope that the need for compulsion and the use of force, as set out in the clause, will be rarely needed, but time will tell. Of course, we would expect such powers to be exercised proportionately and reasonably in any event.

Our amendment would delete clause 102(6), which once again appears to place significant powers in the hands of the Secretary of State, effectively enabling them to block any investigations or inspections that HSSIB might want to undertake under the clause on the grounds of national security. Of course, we are not suggesting for a minute that national security issues are not a legitimate issue for the Secretary of State to be concerned about, but I really am struggling to think of a situation where investigations in the NHS on issues of patient safety could also properly be considered matters of national security. If the Minister can provide me with a list of patient safety incidents in recent times in which investigations have not been concluded because national security implications have intervened, we will reconsider our objections to subsection (6). On the face of it, however, it just looks like another unnecessary power grab by the Secretary of State that again risks compromising the independence of HSSIB.

It is also a concern that there appears to be only one person who can decide whether something is a matter of national security. That person is the Secretary of State. He and he alone decides what is a national security issue and members of the Committee will see how that means that we have to place a lot of trust in someone who should not really get involved in these investigations. Why is it this Secretary of State and not the Home Secretary or the Defence Secretary who might be better placed to judge matters of national security? Why have this power at all? We are asking what the real or imaginary problem is that this power is attempting to solve.

Clauses 103 to 105 provide a power to compel individuals to co-operate. We hope that, as time moves on, we see the need for that power to be used less and less. I hope that we all want to see over time a shift away from the defensive culture that sometimes pervades the NHS. The adage that one volunteer is better than 10 pressed men applies here. Some of the softer issues that may arise around the organisation may come out more easily in the context of someone being able to talk candidly and voluntarily about their experiences. I accept that not everyone will feel comfortable doing that, which is why the powers may be necessary, but the key is not the power to compel people to give evidence but the power to instil confidence that there is a safe space for discussions on patient safety.

[Dr Whitford]

Does the shadow Minister agree that this relates to the whole issue, which we will come on to shortly, of protecting the safe space and the protective materials that go along with that? Some of the discussions may involve someone revealing their own errors or weaknesses or talking about interpersonal relationships. They are very sensitive issues that we cannot compel someone to talk about. We can make someone turn up, but we simply cannot compel them to discuss things that make them feel more vulnerable.

[Justin Madders]

The Scottish National party spokesperson sets out very well why we do not want the power to have to be used any more than is necessary. The quality of the investigations would not be as good as we would want and lessons may not be learned that could otherwise have been learned.

I have a few questions for the Minister on some of the specifics in the clause. Under clause 103(1)(a), the requirement is that a person must attend

“at a specified time and place”.

I would expect such a request to be given with reasonable notice and to take place at a reasonable time. It does not state that in the Bill, but one would hope that that is a given. Anything that the Minister can say on that would be helpful. It also raises the question about whether such a request could be blocked by an employer requiring a person to be in work at the same time. Clearly in those circumstances, the employer may have an interest in the investigation as well. Will the Minister say something about guidance being issued on the importance of ensuring that individuals who receive such requests are in fact supported by their employers to comply with them?

If someone attends an interview, do they do so alone or do they have the right to be accompanied by a work colleague, a trade union rep or even a lawyer? They may not want any of those people there but, given that one of the grounds for refusing to comply with a request under subsection (3)(c) is that documents are protected by legal professional privilege, I suggest there might be a role for the legal profession. I am not trying to generate more work for my former colleagues when I say that.

Is there a reason to challenge such a request? If we are in the realms of compulsion, the person will probably be not the most useful person from which to obtain information. They may have health issues or other legitimate grounds for declining the request, so what do they do in such circumstances? If the Minister could provide any insight on that, it would be useful.

Finally, I want to ask questions about the criminal offences set out in clause 105. It is probably right that there should be a sanction on those who obstruct and those who refuse to comply or, indeed, provide false or misleading information. Subsection (5) says there will be a fine, but what level of fine does the Minister envisage it will be? Does he have a view on whether an act that leads to a fine might also constitute professional misconduct if the individual were a member of a royal college, for example? A referral to the regulator might have a more powerful effect than a fine. Those are a few matters for the Minister to consider and I hope that he will address them in his response.

Health and Care Bill (Sixth sitting)

Philippa Whitford Excerpts

Committee stage
Tuesday 14th September 2021 Public Bill Committees

[Edward Timpson (Eddisbury) (Con)]

It is a pleasure to serve under your chairmanship on this Bill Committee, Ms Elliott. I rise to speak on the amendment, not to support it, I am afraid, but I do want to show some sympathy with the arguments the Opposition have raised about the way ICSs have come into being and particularly about their size and population.

As was hinted at by the shadow Minister, the hon. Member for Ellesmere Port and Neston, this is where we have a shared experience of the shadow integrated care system in Cheshire and Merseyside, which has, I think, been through four different leadership teams in the last five years. Concerns have been raised with us, by local government but also by many working in the health service in and around Cheshire and Merseyside, about how the construct of this ICS will impact on their ability to deliver local place-based healthcare.

On size, the majority of the evidence we have had in the sessions to date has suggested that the formulation of ICSs needs to have a level of flexibility and permissiveness. However, we also need to be cognisant of the fact that there are populations that will need to be served differently, based on past experiences of borders that already exist. Cheshire and Merseyside will to cover 2.6 million people—that is over eight times the size of some ICSs. It will incorporate 9 CCGs—more CCGs than that, but in Cheshire itself it has moved from four to one as recently as April 2020. There will be 19 NHS provider trusts and 51 primary care groups. It is going to be an almighty body trying to make sure we deliver healthcare at the very local level as best we can.

If that is not done well and there is not the right level of scrutiny, transparency and accountability, the number of bodies on the Cheshire and Merseyside board, for example, could end up being 63 if every body that falls within that geography and that has asked to be on it has a place at the table.

We contrast that with the example of Gloucestershire. We had evidence from Dame Gill Morgan, who is the chair of that ICS, which is one of the much smaller ICSs. In one of our evidence sessions, she was very clear from the experience that she had had:

“If you have a really large ICS and you are trying to do it all, you are so distant from patients, citizens and clinicians that you will never have the contact. Place, in those bigger systems, has to be where you begin to pull those things together, by getting the right people to engage and developing the right level of trust.”––[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 129, Q177.]

Where that will be vital in an area such as Cheshire and Merseyside is on my second point, around population. The ICS will incorporate a huge and diverse population across the Liverpool city region and Cheshire. Those who have only a cursory knowledge of that part of the world will not be surprised to hear that, within it, there are very different health populations, needs and inequalities. The concern that has been raised with myself and other local representatives is that, over time, there is a risk that that might have an impact on some of the priorities, and where they sit within that large area, as well as on what allocations that might bring to deliver the right level of healthcare.

In one of the unitary authorities in Cheshire—Cheshire East Council—somewhere between 55% and 70% of its overall budget is spent on social care. It is so important that these bodies have an integral role in making sure that the place-based services match what they know is needed within their own budget.

There has been some amelioration of that issue, by virtue of the local authority representation on the integrated care board—I think it has two representatives. I was pleased to see in my hon. Friend the Minister’s written statement on 22 July that as part of the boundary review of the ICSs, which has been referred to, Cheshire and Merseyside will have a period of two years where the current arrangements will be reviewed. I seek assurance from the Minister that that review will have veracity and deep-rooted scrutiny of the performance of the ICS during that period, to ensure that it does not fall into the trap that some of the larger ICSs could do unless we have the balance right between the role of local government and local healthcare providers, alongside this larger organisation, which will have to encompass a huge range of demands and pressures on its time and resources.

I have every confidence that my hon. Friend will ensure that the exercise is fruitful, that in Cheshire and Merseyside—particularly in Eddisbury and in Ellesmere Port and Neston—we end up with a better system than we have, and that our patients and residents will be able to get the healthcare that they need when they need it, irrespective of where they live.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

It is important to recognise the changes that the NHS in England has been through over the past 20 years, moving from about 100 strategic health authorities to primary care trusts, too more than 200 CCGs, to STPs and now to this. Witnesses in the ICS session said that although some were making great progress, it was those with boundary difficulties that were falling behind. The Bill talks about population health and wellbeing, but local government drives a lot of those things: housing, active transport, social care or what the town centre looks like. It is therefore important to get the boundaries right, or in a few years’ time there will be yet another upheaval.

In Scotland we got rid of trusts and went to health boards in 2004, and we have had 17 years of stability since then. If people keep moving around who they are connected with, the Government are breaking relationships and expecting people to form new ones. This is not a minor thing. I would like the Minister to explain what the basis was for deciding the number, the size and the geography of the boards. Was some formula used? Trying to get that right will be a major influencer of the outcome of the whole policy.

[Karin Smyth]

Ms Elliott, you were not with us last week when I bored the Committee about how many different jobs I had done in the NHS over the 20 years to which the hon. Member for Central Ayrshire referred. I feel as if I have lived and breathed that journey from the health authorities’ commissioning function through to primary care groups and primary care trusts. Much like the hon. Lady, I was prompted to come into this place by the Lansley Act—the Health and Social Care Act 2012. We all knew on the ground that, as was warned of and as has now been shown, it was completely nonsensical. It was never going to work, and it was hugely detrimental to the progress of securing better health in an efficient and effective way—more so than anyone could have imagined. I came here in 2015 for a bit of a quieter life—that has gone well for me!

Locally, I objected to the geographical footprint—we do not want to get into the footprints, but they are important to local people. The Bristol, North Somerset and South Gloucestershire footprint makes no sense to anyone apart from the chief executives of the local trust, because it is about acute sector flows and absolutely nothing else. That is why it is disappointing that we have not, for example, added health inequalities to the triple aim, because that would force such bodies to look at something more than the bottom line of those large acute sector trusts.

[Dr Whitford]

On that issue, when one of the amendments was turned down earlier, the Minister suggested that there was already a responsibility to deal with health inequalities that sits within the NHS. Yet, after 70 or 80 years, we have failed to do that, so do we not need not such priorities in the Bill? They need to be taken into account in shaping the ICSs.

[Karin Smyth]

I completely agree and, as I said, in that sense it has been refreshing to talk to financial directors locally. People who go to be finance directors in NHS organisations have healthcare in their hearts—they want to see only good healthcare and good outcomes—and some of this forcing together of clinicians, finance directors and other managers to look at population health is welcome. They recognise that the way in which the current funding model works—we will come on to the tariff—often stops them doing that, so adding in health inequalities would help. For the moment, we have lost that argument in Committee, but we will see how we get on in future.

In essence, where we have got to now is large CCGs coming together. That is what they are: they are rebranded CCGs. The wording in the Bill has been cut and pasted from 2012. I have other words for describing them: they are an NHS cartel. The CCGs commission and the big providers in that group all decide locally how the NHS cake should be cut—we will come back to that in future amendments. They are accountable neither nationally nor locally. That is deeply problematic. Even the partnership bit, as I think we established last week, is a committee of the ICB, although the Minister may want to clarify that. Sir Robert Francis did question whether that was the case. That goes to show that the architecture is really unclear.

The ICBs are creatures of the NHS, and well done to it for getting that on the statute book—almost—but this is essentially the same model. Therefore, as the hon. Member for Central Ayrshire alluded to in talking about the past 70-odd years, we need something better. The danger is that, as before, these bodies have no real discretion over spending; mostly, they are just the conduit for payments to existing providers. There is no real clout or sight of where we develop new services. They have very few levers to pull to drive innovation or service improvement.

All Members should be concerned about how we get that innovation and how we drive service improvement into the system. We need the ICBs to be better. They need to attract and retain the highest quality management or they will fail. They need to be perceived by the public as relevant and they need visibility. They must be the place where ambitious managers seek to work. They have to be the powerhouses, because they are the controllers of the money. They need good managers if they are to have an impact. They need to have local relevance—we will come back to that in future amendments. I am keen to support the amendment tabled by my hon. Friend the Member for Ellesmere Port and Neston about elected chairs and non-executive directors. Being held to account by the NHS region is very unhelpful.

In relation to Healthwatch, Sir Robert Francis—we should certainly take note of someone of his stature—told us the other day:

“All organisations currently in the NHS have directors of engagement and communication. I suspect that, with the best will in the world, most of them see it as their job to defend the organisation. This is not about defending an organisation; it is about welcoming constructive comment from the public and responding to the needs that people communicate to them.”––[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 150, Q212.]

We can disagree on how that happens, but some of our amendments are designed to help that happen. This cartel is deeply problematic for all hon. Members locally.

As commissioner organisations, accountability does matter. No one is going to walk down the street saying, “Save my CCG” or “Save my ICB” while carrying a banner to save their local hospital. But CCGs control over £75 billion of taxpayers’ money, and they will continue to spend that sort of money. In my area, it is upwards of £1.5 billion or £2 billion. That dwarfs the council’s budget; it totally dwarfs the police’s budgets, yet we allow it to be done in this way. Even as a Member of Parliament with 20-odd years in the health service, I have sometimes found it almost impossible to find out who is accountable when a constituent comes to me with a particular issue. That is why I have focused on accountability and good governance.

In the proposed new organisations, who will be hauled up when something goes wrong? Who reports to the Public Accounts Committee? If the budget is inadequate, who decides what is cut and what is closed? If the boards are making those kinds of decisions, we need to know who appoints them. How do we know that they are independent? How can we remove them if they do not perform? If big decisions are planned, how do we know? What restrictions, if any, should constrain our right to know? The Bill should spell out those things. All our witnesses, and reams of written evidence, are grappling with that issue.

Politically we might disagree with the centralisation of the NHS and the diktat as opposed to the permissiveness. I am definitely on the more localised, permissive side. I think we need good managers and good clinicians to lead and develop our health services and to be accountable for that money. They must be really accountable.

I hope that in his reply, the Minister will take the opportunity to push back on some of the negative language about administrators and managers in the health service. There is a very good article in The Spectator. I commend it to him, if he has not read it. Why would we have doctors and senior consultants on the phone to these 5 million patients, trying to reschedule their appointments? Who is going to go and fix the boiler? The list goes on and on. We need to make these organisations the beacon of good quality management.

--- Later in debate ---

The SNP spokesperson, the hon. Member for Central Ayrshire, was correct in her comments. The basis for these decisions has never been entirely clear. The Minister did set out in a written statement what had been decided, but the why was missing from that, and a lot of the frustrations that have come out today have surfaced from that. My hon. Friend the Member for Bristol South gave a real tour de force, expressing many the concerns we have about the Bill. I agree that we do not want to have an entire debate about geography all the time, and we should not: if we had got this right in the first place, we would not need to have the debate at all. My hon. Friend was right in saying that these bodies have to be perceived as relevant by the communities they serve.

[Dr Whitford]

Does the shadow Minister think that the fact we have heard today that Cheshire and Merseyside could be reviewed as quickly as in two years’ time might undermine some of the commitment on the ground? If people feel that it will all change again in two years, the engagement may be weakened.

[Justin Madders]

I thank the SNP spokesperson for her intervention. That is undoubtedly a risk. It is possible we end up with two or three areas out of that review. I hate to think it would get any bigger.

In terms of what people think is their relevant community, Merseyside has a metro Mayor now with very clearly defined geography, and Cheshire is a different area. As my hon. Friend the Member for Bristol South said, people do not take to the streets with banners saying, “Save our CCG!” I suspect the majority of people do not even know what a CCG is or the area that it is meant to cover. I suspect even fewer people know what an ICS is and what area it covers. That will definitely have to change if we are to have a truly integrated health and social care system.

The point made by my hon. Friend the Member for Bristol South about the defensive culture at times, alluded to by Sir Robert Francis, is a valid one. We may touch on that in the HSSIB elements of the Bill later on. She was asking the right questions—how can the board be challenged, and who is it accountable to? Those are points we will have to come back to, because there is, to our mind, a clear democratic deficit in the way these bodies have been structured.

Finally, the Minister referred to his guiding principle of coterminosity except in exceptional circumstances. Cheshire and Merseyside is coterminous, it is just coterminous for more than one local authority—and some pretty big ones at that—so I do not necessarily think that coterminosity is the answer.

The Minister referred to proposed new sections 14Z25 and 26 in regard to the duties to consult with members of the ICB. Some of the people named in amendment 49 might not actually be on the ICB, because they are not included in the legislation at the moment. We will come to our amendment on that in due course, and we might be able to change that. In proposed new sections 14Z26, CCGs must

“consult any persons they consider it appropriate to consult”.

That could be everyone and no one. I do not intend to press this to a vote, but I hope the Minister has taken on board several points that will lead to an improved process in the future. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Justin Madders]

I beg to move amendment 38, in clause 13, page 11, line 10, at end insert—

“Accountability

14Z28A  Reporting: duties on integrated care boards and the Secretary of State

(1) Integrated care boards must report annually to the Secretary of State on their actions and policies and the outcomes for patients of the services they commission.

(2) The Secretary of State must prepare and publish a report each year on the actions and policies of integrated care boards and the outcomes for patients of the services they commission and must lay a copy of the report before Parliament.

(3) A Minister of the Crown must, not later than one month after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.”

It is a pleasure to move the amendment in my name and that of my hon. Friends. The heading is “Accountability” and, as I am sure the Minister will have picked up by now, we think that accountability needs to be turbo-charged in the Bill. The new commissioning bodies, the ICBs, are directly accountable to NHS England and therefore on to the Secretary of State. That was explained by Amanda Pritchard when she gave evidence last week. Each year, the ICB has to prepare a report on how it has discharged its functions and specialist duties under the various headings—improvements in quality, public involvement and so on. It has to report under lots of headings. One has to wonder how it will be able to pick priorities from all that, but that is a matter for the ICB.

ICBs must also publish their plans. The NHS, in the form of NHS England, will then assess the performance of each ICB against how it discharges its functions. Presumably, that will be at least in part with reference to those plans.

The amendment, in essence, would add the accountability of the Secretary of State to what we would describe as a fairly cumbersome but necessary regime of performance management. The slant of the reporting in the amendment is less steeped in the kind of bureaucratic tick-boxing that we understand that the Secretary of State is not a fan of, and what has to be reported is outcomes to patients--perhaps, the thing that matters most.

In the recent comparative survey by the Commonwealth Fund, the NHS lost its top slot and went down to No. 4. It was close, but not close enough. Despite usually coming top, it does badly on one of the key metrics that goes into the assessment—patient outcomes. We do well on ease of access but not so well on outcomes, which is a sad reflection. The amendment makes outcomes a priority over other factors. While the ICBs may have much to say on the day-to-day running of the NHS in the area, the ultimate responsibility for the whole system lies with the Secretary of State, even though on a day-to-day basis it may be NHS England that does the real leg work of performance management. In its new integrated form, NHS England performance manages various trusts and foundation trusts. It also runs the failure regimes for them if needed.

Ways of managing providers are well developed, but most of the skills necessary to monitor whole system performance have been lost to some extent, as management capacity in commissioners has been nibbled away. That brings me to the current weakness in holding providers to account on outcomes. Payment by results was a euphemism, as the results did not matter: the process was the determining factor. Reports on outcomes, as with on patient satisfaction, are absolutely necessary. If any system is to be taken seriously, it must seek to improve. ICBs should not see this as added bureaucracy: they should see it as reporting vital elements of healthcare. I draw particular attention to the reference in proposed new subsection (1), which refers to outcomes specifically, because we do not believe that gets as much prominence as it should.

Leaving aside the desire to produce the right reports for the Secretary of State, there is also an issue about how to make ICBs more accountable to their communities—we will touch on that later. Giving them sight of a nice glossy annual NHS report will not be very enlightening, and it will not help communities understand what has been done on their behalf, even if they recognise the NHS as part of their community.

[Dr Whitford]

Is the hon. Gentleman talking about clinical outcomes? One of the issues is having national clinical standards against which every unit and every area should be able to benchmark itself. In Scotland, we have standards for 19 of the commonest cancers, which are continuously audited. I was directly involved in developing the breast cancer ones in 2000. We have data that goes back over two decades, which means we can see improvement. It is clinical outcomes that need to be the focus, and they need to be agreed nationally: it should not be for every local ICS to decide what it measures and how. Otherwise we cannot say, “We are getting rid of variability, we are saying that a patient with this disease in Newcastle will get as good treatment as they would in Liverpool or Wolverhampton.”

--- Later in debate ---

[Alex Norris]

I am grateful for that intervention—I am going to stop at 10. That evidence actually supports the point the I am making. When we heard that evidence, the witness said that it was automatic to them, but of course we would want someone from a mental health background and someone from a social care background. I completely agree. What I am saying is that if that is so clear and obvious, which I believe it is, why on earth would we not put it in the Bill? It was clear and obvious enough that we wanted to have someone on behalf of local authorities, and that we wanted someone on behalf of primary care. If it is clear and obvious in those cases, it is clear and obvious in these, too. That was my reasoning, and it was obviously echoed in the evidence submitted by the Royal College of Psychiatrists and the Mental Health Foundation. That is the first thing I want to say about the amendment.

The second relates to a director of public health drawn from that patch. Goodness me—as my hon. Friend the Member for Ellesmere Port and Neston said this morning, if anyone has proven themselves under fire over the last 18 months, it is our incredible DPHs. With a unique combination of knowledge, training, local insight and cross-system relationships, they have done an extraordinary job for us in pulling together our approach to the pandemic. We should be using that to pull together our approach to all sorts of big issues that we face in our local communities.

The DPHs are the human embodiment of our communities’ joint strategic needs assessment. They bring that to life, and they could bring that to the table. If we want our system leaders to go beyond their organisational concerns when they go into their integrated care board meeting, who better than the person who develops the insight into system need? The DPH is exactly the right person. They also provide an invaluable director-level connection to all the departments of the local authority that have such a profound impact on the wider determinants of health—housing, leisure and planning. What a wealth of knowledge, and what connections, they would bring to the table.

Thirdly, the amendment provides for a designated social care representative. The stated aim of the Bill is to drive integration and to foster collaboration between health and care partners. I really want that to be the case, rather than this being just a reorganisation Bill. It is a 135-clause Bill, and two of the clauses are about social care, so it is not unreasonable to say that perhaps there is an imbalance. Rather like the much-hyped social care reform and funding plan that the Government are discussing downstairs at the moment, the clauses in the Bill neither reform nor, in the main part, fund social care. Again, social care is left trailing behind. It has been battered for 11 years and, as a result, we see rationed care, dreadful terms and conditions for staff, and services that are just not fit for what they were supposed do. If the Bill really is about fostering collaboration, social care ought to be explicitly represented.

I am conscious that there is a nominated local authority representative under paragraph 7(2)(c) of schedule 2, but that person will already have quite a lot on their plate. They will have to represent the broader views of the entire local government family. Nottingham and Nottinghamshire is probably one of the simpler planning footprints in the country, but it is still 11 counties, and representing all those views at once is very difficult. It is too much—and not credible—to represent not only 11 council chief executives, but 11 directors of adult social care and children’s social care, as well as all the other functions of the local authority. A social care lead, who convenes the social care leads in the given geography, would give the ICBs the specialist knowledge and insight to create and foster the environment for a true partnership between health and care.

Fourthly and penultimately, amendment 32 would replace the staff voice through recognised trade unions. As has already been mentioned, our health and social care services are well served with amazing staff. They are our experts. They are the people who feel things on the frontline and who know, when they go, “Here we go—here’s a new initiative”, whether it is practical and rooted in real-world experience. They have that very direct experience of population health and how it is changing over time.

The staff are the ones telling us about the fractures in the health and care system that make their jobs harder—the fractures we are supposed to be dealing with. They were the ones—boy, should we have listened to them then!—who told the Government very clearly what the impact of the 2012 reforms would be on the system and about the greater fracturing of the system. They were not listened to then, but they should have been and they should be now.

Prior to coming here, I was a union organiser. I know one thing for sure: senior management always think they can speak for the staff, but I am afraid they generally cannot. That is not a criticism; their lives at work are very different. The health and care family is better served when all aspects are covered, rather than some speaking for others. If we are going to develop really significant plans at these boards, the discussion would be incredibly enriched if the voice of the frontline was there, to sense-check things, to highlight things that are working already and the workarounds that staff develop as time goes on, and to assist on planning as well. There is an awful lot they could contribute.

Finally, and crucially, let us have a representative of the patient voice. The whole reason why any of us come to this place is that we want to give communities a voice. We think that is important. The key way we do that is to listen to people. If we do not, we do not do very well for very long.

We want our communities to have brilliant health and care services, but sometimes we make it harder for them to tell us what they want. We have tremendous mechanisms for finding out. The evidence of Sir Robert Francis from Healthwatch was particularly pertinent on not just using numbers, but the wealth of qualitative information. Let us have someone who is an expert by experience and who can draw on and bring that with them, and speak for thousands of other experts by experience. We must believe that they have as much to contribute as senior leaders. Not only would they bring insight, but it would give legitimacy to decision making, which is something that we have real concerns about, as we have said on discussion on multiple groups of amendments.

Those are the extra five members we are suggesting. If anyone listening at home is keeping score, that means five members—the chair, the chief executive, the acute lead, the primary care lead and the mental health lead—who owe their employment fundamentally to the NHS, and five—the local authority lead, the DPH, the social care representative, the staff representative and the patient representative—who do not.

If the Bill is about integrating and not about a restructure and reorganisation that involves the big acutes taking on the rest of the system, that might be quite an elegant balance. Of course, local systems could seek to augment that, which would be a matter for them, but this would be a very solid foundation, which I think enriches the board. I look forward to the Minister’s response.

[Dr Whitford]

I, too, rise to support the amendment. This is probably one of the most important amendments so far. In the witness discussion, we came back time and again to which voices would be on the ICB and would be able to influence. I agree that, with all the talk of parity of esteem, it seems incredible that there would not be a voice representing the importance of mental health on the board. Similarly, with the talk of moving to population health and wellbeing, there is a need for directors of public health to agree policy and to feed in information about the underlying health inequalities, life expectancy and so on in the local population. Not to have a social care voice when what the Government say is that they are trying to integrate the NHS with social care seems quite bizarre.

The NHS and social care are both services delivered by people for people and having both the workforce and staff voice, and the patient voice, is therefore important. On the staff voice, the “Learning from Scotland’s NHS” report from the Nuffield Trust highlights that the success of both the Scottish patient safety programme and the Scottish quality improvement standards was driven by the fact that frontline staff were involved as drivers, champions and developers from the word go. These programmes have been able to run over years, building on experience that is then shared with other sectors and specialities. It is important to get this part of the Bill right, or else priority will not be given to integration, population health or wellbeing. Of all the things that have been discussed so far in Committee, and through the witness statements, this amendment is one of the most important.

[Edward Argar]

This is an important amendment because it goes to the heart of the debate we have been having about permissive versus prescriptive, and where the appropriate balance is. I suspect we slightly disagree on that—perhaps a little less than one might suppose—but I am grateful to the shadow Minister, the hon. Member for Nottingham North, for bringing this amendment forward. It gives us the opportunity to start getting into that permissive versus prescriptive debate. At the outset he raised the recent announcement by the Prime Minister about integration; it will not surprise him when I say that I believe this creates the foundations of that integration, on which we can continue to build in the coming years.

In respect of the specifics of the amendment, schedule 2 sets out minimum membership of the integrated care board. That is the key element here. It will need to include members nominated by trusts, foundation trusts, persons who provide primary medical services in the ICB area and local authorities. As we heard in the witness sessions, this is very much de minimis—it is not what will happen; it is the baseline, above which each system can go if it wishes to reflect local needs and priorities. We have heard the quote from Dame Gill Morgan about how she is approaching it, but we have also heard from Richard Murray of the King’s Fund, who said:

“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.”––[Official Report, Health and Social Care Public Bill Committee, 09 September 2021; c. 127, Q173.]

I appreciate that shadow Ministers may take a different view because they feel they have come up with a better balance. However, I highlight that evidence before I go into my answer.

[Dr Whitford]

Obviously, Dame Gill Morgan is quoted as saying that no one could evenly remotely think of setting up an ICS without primary care voices—and these other voices. Are all interim ICSs that have developed so far following the same model as she is? Is this totally intuitive, and therefore to be relied on, or should it actually be laid down? The voices listed in this amendment are central.

[Edward Argar]

The hon. Lady and I have spoken about “Learning from Scotland’s NHS” before; as she will know, we are not dogmatic and are always happy to learn from Scotland’s NHS—as, I am sure, it is happy to learn from England’s NHS. That is to the benefit of everyone, and I am very grateful to her for inviting me on Second Reading to come and visit Scotland and see it on the ground, which I hope to do.

The reality is that the ICSs at the moment, on a non-statutory footing, are at different stages of development, different stages of evolution and reflect different approaches. One of the things we are seeking to do here is to put a non-restrictive degree of prescription around this—if that is possible—to get a degree of consistency, but not to be too prescriptive.

Dame Gill Morgan leads one of the more developed ICSs. I do not think what she is saying would be unrepresentative of the attitudes and approaches adopted by ICSs more broadly. I should say ICBs, as the hon. Member for Bristol South rightly highlighted the importance of reflecting careful use of the terminology in the evidence sessions—she caught my eye, and I have corrected myself now. I think we strike the appropriate balance here, and I suspect we will see ICBs going further in their membership, but that flexibility is able to reflect local circumstances.

--- Later in debate ---

On resuming—

[Dr Whitford]

Although this was described as an evolutionary piece of legislation that would not involve a lot of upheaval for the NHS, it actually does. It is a significant piece of legislation, but it represents a missed opportunity to go back to a unified public NHS with integrated care bodies as the main structure. They are responsible for spending billions of pounds of public money, but the system will still be a transactional one based on a purchaser-provider split and tariffs. We will talk further about how can inhibit development.

If we are to have a purchaser-provider split, we have to have a split. We cannot get away from the conflict of interest inherent in having private providers who seek contracts to deliver care sitting on the very board that makes those decisions, or on the partnership board that will develop the strategy. That is a conflict of interest. It should be resolved, and the amendment should be supported.

[Edward Argar]

With your indulgence, Ms Elliott, I will turn to amendment 33 first. Integrated care boards will be NHS bodies, whose membership consists, at a minimum, of individuals appointed by NHS providers, providers of GP services and local authorities that coincide with the ICB. Any perceived risk of privatisation through the ICB membership provisions is, I believe, entirely unfounded—and, I feel bound to add, potentially unfair to the many public servants in the NHS who work for ICBs. Although service provision—I emphasise the word “provision”—by the independent and voluntary sectors has been, and continues to be, an important and valuable feature of this country’s healthcare system under successive Governments of all political complexions, it was never the intention for independent providers, as corporate entities, to sit on integrated care boards, nor for an individual to be appointed there to be a representative of such an interest in any capacity.

People must therefore be assured that the work of integrated care boards is driven by health outcomes, not by profits, and I am sure that there will be a consensus on that principle across this Committee. That is why there are already safeguards in place to ensure that the interests of the public and the NHS are always put first. The ICB chair has the power to veto members of the board if they are unsuitable, and NHSE has the power to issue guidance to ICBs in relation to appointments as part of its general guidance-making power. That sits alongside the robust requirements on ICBs to manage conflicts of interests, and NHSE’s wider duty to issue guidance to ICBs.

I turn to amendment 30, which seeks to exclude individuals whose GP practice holds an alternative provider medical services contract from being made a member of an ICB. APMS contractors include some private and third-sector organisations, but also some GP partnerships. These contractors include, for example, social enterprises and partnerships that provide services to homeless people and asylum seekers. This amendment would potentially prevent some individuals from being on ICBs, on the basis of the type of NHS GP contract that their practice holds.

I do appreciate the intent behind the amendments, namely the desire to avoid the appearance, and potentially even the risk, of privatisation and conflicts of interest. However, the effect would be to limit the ability of primary medical service providers to appoint an ICB member who might best meet the requirements of the local population, by reducing the diversity of GPs who could be appointed. While I can understand the intent behind them, I fear that these amendments do not do what they seek to do, and they would have unintended consequences. I will turn to those shortly.

We recognise that the involvement of the private sector, in all its forms, in ICBs is a matter of significant concern to Members in the House, and we are keen to put the point beyond doubt. However, having taken appropriate advice, I am afraid that that these amendments would not cover a number of scenarios—for example, lobbyists for private providers, or those with a strong ideological commitment to the private sector—and they would therefore not be watertight

As it stands, these amendments may well not offer the robust assurance that perhaps hon. Members intended. Therefore—this is where I may surprise the hon. Member for Ellesmere Port and Neston—to put this matter beyond doubt, we propose to bring forward a Government amendment on Report to protect the independence of ICBs by preventing individuals with significant interests in private healthcare from sitting on them.

As hon. Members will know from their attempts to draft these amendments, avoiding unintended consequences is not a simple matter. If appropriate, I would be happy to engage with either the hon. Member for Nottingham North or the hon. Member for Ellesmere Port and Neston in advance of Report. We may not reach a consensus, but, as they both know, I am always happy to have a conversation with them.

The Government are firmly committed to the founding principles of the NHS. We recognise the importance of its values, and the public service ethos that animates it. It is by no means our intention to allow private sector providers to influence, or to make, decisions on spending on the commissioning board—the ICB—and the spending of public money. The Bill does not allow that, but we will look to see whether we can find a way to put that unfounded fear to bed once and for all with an appropriately worded amendment that does not have unintended consequences.

Although I appreciate that much the same motive underpins amendment 27, it is worth considering why the integrated care board and the integrated care partnership are different bodies. The decision to create integrated care partnerships came from discussions with a number of stakeholders who revealed a strong case for the creation of a committee to consider strategically not only the health needs but the broader social care and public health needs of a population. It is not a body like the ICP, as we have heard, which will be directly accountable for the spending of NHS monies.

We therefore do not intend to specify membership for the ICP in the Bill, as we want local areas to be able to appoint members as they think appropriate. To support that, we have recently been working with NHS England and the Local Government Association to publish an ICP engagement document setting out the role of integrated care partnerships and supporting local authorities, integrated care boards and other key stakeholders to consider what arrangements might work best in their areas.

We would expect members of the ICP to be drawn from a very wide variety of sources and backgrounds, including the health and wellbeing boards within the system; partner organisations with an interest in health and care, such as Healthwatch; and potentially voluntary and independent sector partners and social care providers at that level, as well as organisations with wider interests in local priorities, such as housing providers.

To exclude independent providers from both the ICB and the ICP would, I fear, risk severely reducing the extent to which all parts of the broader health and care ecosystem could be drawn upon in the ICP context. It would exclude valuable expertise and would, for example, prevent social care providers who provide a small amount of domiciliary care to the NHS from sitting on the ICP. Furthermore, the ICP will not make commissioning decisions or enter into contractual arrangements that are binding, or make decisions about who gets funding allocations. Those are functions conferred on the ICB, hence the distinction that I make.

I therefore believe that membership of individuals from independent providers on the ICP does not present a conflict of interest in the way that hon. Members have asserted, certainly in the context of the ICB. I suspect that we may debate that further in the coming weeks, but taken with the ICB and the comments that I have made, we believe that this provides the right balance between recognising the distinctive accountabilities and responsibilities of the NHS, local authorities and other partners, and strongly encouraging areas to go further in developing joint working.

I hope that what I have said provides some reassurance to Opposition Members, and that they will be willing—I see them nodding—to engage with me to see whether we might find a greater degree of consensus. I should also say that I will obviously speak to the Scottish National party spokesperson on this as well, as I have done throughout. I addressed my remarks to the shadow Minister, but of course I extend that offer to her. I hope that on that basis, the Opposition Front-Bench spokesman will consider withdrawing the amendment.

Health and Care Bill (Fifth sitting)

Philippa Whitford Excerpts

Committee stage
Tuesday 14th September 2021 Public Bill Committees

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I wish to make one simple point, following what the right hon. Member for Ellesmere Port and Neston has said, which is that the annual funding of any health system based on the tax year—I can speak to this, having spent more than three decades on the frontline—means that clinicians will inevitably be contacted in January or February and asked, “What equipment do you need? You have to obtain it by 31 March.” Providers of medical equipment will happily admit that prices go up in the first quarter of the year and then drop, so this hand-to-mouth method actually costs all health services massive amounts of money. Simply being able to smooth that out so that we know what is coming several years ahead would save millions of pounds on procurement and allow that money to be directed to clinical care.

[Karin Smyth]

I echo the comments of my hon. Friend the Member for Ellesmere Port and Neston. The mandate is important. It is awaited by clinicians and managers in the health service as it affects how they are to operate in the forthcoming year. Often guidance arrives the week before Christmas, as I remember from my time in the NHS, so we were starting to plan for the very short term, which really is unhelpful. It is a regular statement intent, and it is a way in which the public can see what is happening or is due to happen to their services.

My hon. Friend the Member for Ellesmere Port and Neston quoted from the King’s Fund’s written evidence, which mentioned the

“multiple plans and strategies in each ICS”

and the need for a “more ‘local’ place level”. As we heard in our evidence sessions, this is already a very confused picture, and one that we are going to try to navigate our way through. Although I do think that there should be greater permissiveness, so long as it is accountable at local level, the mandate gives us a degree of accountability at national level, on the Government’s intent, published in their stated aims, and that gives the general public and taxpayer confidence.

On our amendment about 18 weeks, that target was often criticised as not being clinically referenced. It was brought in after the then Conservative Government talked about an 18-month target being highly ambitious for people waiting to be seen clinically—some of us are old enough to remember those dreadful days, to which we have returned. Now, we could argue whether 18 weeks was the right number, but it was something that drove up standards of care, and it meant that the NHS said to the taxpayer, “We accept that you deserve a better standard of care and treatment, and it is completely unacceptable to be on a waiting list for 18 months to two years”—it was often longer. It focused minds, drove service redesign and made clinicians go back over their lists, because if someone has come on to a list two and a half years earlier, many things would have happened and, sadly, in many instances that person would have died.

By supporting our amendment, the Government would show that they are ambitious for the NHS and the people it serves. If the Minister is not prepared to support that 18-week commitment, what is acceptable to the Government? We and all our constituents know that waiting lists were rising out of control before the pandemic, and that the target had not been met for several years. Clearly the pandemic has exacerbated the situation, but let us be clear that targets not being met was a pre-pandemic problem.

We hear utterances from the Government in the newspapers about what they think about the targets—“nonsensical” is what the Secretary of State said at the weekend. The targets were put in place to give people confidence that their taxes were funding a service that they could hold to account in some degree, and it drove some positive behaviour. It will take a massive effort to get waiting lists down, so what discussions has the Minister had with clinicians and managers about the loss of targets? Why would he not support putting that target back in the Bill? The long waiting lists are miserable for everyone concerned. They need to be published. We need to let people know what they can expect from our service. I strongly urge the Minister to accept the amendment, or at least its intent. If he is not prepared to do so, what does he think is an acceptable length of time for people to be on a waiting list?

--- Later in debate ---

The written evidence from Barnardo’s concluded that children growing up in England face some of the worst health outcomes in Europe, particularly those growing up in poverty. That should sadden us. It behoves us to be honest about it, set targets and attack it. The proposed new clause would set the right framework to compel Ministers to do that. Tackling inequalities ought to be at the heart of any Government. The proposed new clause and amendments would improve this Government’s approach and that of future Governments.

[Dr Whitford]

I rise to support these measures. The longer those of us who work in the NHS spend on the frontline, in particular as a breast cancer surgeon in a specialist area, the more we realise that we are constantly catching someone who falls, instead of building a handrail to stop them falling in the first place. Anyone who works in health or social care recognises that health inequalities are a major issue, going right back to the Marmot report of 2010, the Black report and, indeed, many decades. Therefore, they should be a priority at every single level.

The public have a real appetite to see a different approach after covid, because they are aware that covid was not a leveller. It absolutely hit the weakest, most vulnerable and poorest communities. To change the prioritisation to health and wellbeing is also critical. More money is spent picking up the pieces than investing in health in the first place. That is often the health of children; we should try to tackle child poverty and the issues that come from that.

I took part in a report in 2016 that heard from the UK Faculty of Public Health that the UK loses 1,400 children a year before the age of 15, as a direct result of poverty and deprivation. It is clear that the aim of the Bill is not just to take away the appalling section 75. It is to drive integration and the health of the local population. That should be set as a key priority, if the aim is to come out with an approach of putting health in all policies, within local government, the ICS boards and the NHS.

[Karin Smyth]

I concur with the comments of the hon. Member for Central Ayrshire and my hon. Friend the Member for Nottingham North. The hon. Lady referenced the Black report, which first got me interested in working in the health service. I was shocked that, after all those years, the NHS had not improved the dreadful health inequalities that much of the population, including my own constituents, suffered. Here we are 40 years later, and we still have some really quite shocking health inequalities, even in the wealthy city of Bristol.

This is a really important point. We learned a lot in the pandemic, and hon. Members spoke about meeting their directors of public health recently. I have known my director of public health in Bristol for some 20 years because we have worked together over that period. I supported the movement of DPHs into local authorities. I think that was the right move, although the lack of funding that followed has made their job really difficult, and we have not made the improvements we should have made, as my hon. Friend the Member for Nottingham North outlined.

There is real enthusiasm among clinical and financial leaders for some of the movement in the Bill to bring organisations together in integrated care partnerships or ICSs—wherever we think the power will be—to look at population health. Financial directors I have talked to have said, “This is the direction we need to be going in. We need not to be looking just at our own institutions.” There is a will with the Government, but not including health inequalities is a major mistake. I appreciate that when they drafted this legislation, they were perhaps not thinking in that form, but a number of organisations have asked for that addition to be made.

The pandemic required us to talk closely to our clinical leaders, and it really educated people in individual specialties, who are not terribly knowledgeable about health inequalities—perhaps we think they should be. Even in terms of our understanding of where vaccines have been successful and unsuccessful, and how different communities receive information and engage with local health and care services, the pandemic has been a wake-up call and a good education for many of those leaders. We need to capitalise on that.

I know that drafters do not like to change things, but if we were to put addressing health inequalities in the Bill, as we seek to do, it would focus the Government’s drive on place-based commissioning and service delivery, and send a message to the powerful acute trusts—which at the end of the day run the money, and still will—that addressing health inequalities and looking at where and how their services are delivered to the most vulnerable will be a really positive outcome for the entire system. I therefore support the pursuance of the amendments.

Covid-19 Vaccinations: 12 to 15-year-olds

Philippa Whitford Excerpts

Monday 13th September 2021 Commons Chamber

[Nadhim Zahawi]

I am grateful to my right hon. Friend for his important question. He is right to identify that this is a sensitive issue, which is why it was right for the Joint Committee on Vaccination and Immunisation to take its time to look at the data from other countries on first doses and second doses and for the chief medical officers to then do the work unimpeded which they needed to do. It is right that we follow their advice tonight.

On the booster campaign, we have received the interim advice from the Joint Committee on Vaccination and Immunisation—it was published on 30 June this year— on a potential booster programme, including flu and covid vaccine. I can reassure my right hon. Friend that the decision on Valneva will not impact our booster vaccination programme. We await the final advice. The JCVI has received the data from the COV-Boost study, where we looked at all the different vaccine brands—in some instances, full doses and half doses—as to which is the best vaccine to boost with.

I assure him that later this month we will begin a major booster programme. On flu—of course, the flu programme has already begun, and I assure him that we have the supplies for a major programme for both—we are looking at the really ambitious number of 35 million and, when we get the final advice from JCVI, the booster programme will be equally ambitious.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I, too, welcome the decision to vaccinate 12 to 15-year-olds. Scotland’s NHS is also primed to deliver vaccinations as quickly as possible, but it is a pity that there was a delay and that the opportunity to vaccinate during the summer holidays was missed. In Scotland, where our schools went back before English schools, we have seen a huge surge, and we are seeing the same rise in Northern Ireland and Wales. That may happen here as well. I wonder how much of the delay was down to the remit given to the JCVI, which seemed to focus on hospitalisation and death—quite rare, thankfully, among children—rather than considering the wider impacts of education and socialisation loss or of long covid, which we are seeing in young people and children. Was the delay about the remit? Was the JCVI given a narrow remit? Or was it about whether Pfizer and Moderna vaccines would be sufficient to allow the group to have been vaccinated in the summer?

There are rumours that there will be a U-turn tonight on yesterday’s U-turn on vaccine passports. I would be grateful for the Minister clarifying that. Whether that is the case or not, this chaos undermines public health messaging, creates confusion among the public and creates rejection of whatever decision finally comes.

[Nadhim Zahawi]

The hon. Lady asked a number of questions that I will try to address in order. She asked about the JCVI’s remit, which was very much around what it is clinically qualified to address. That is why it advised that the CMOs needed to look at the wider impact on children specifically. There was no issue at all around shortage of vaccines, and I am confident that we have the vaccine supply that we need for both this recommendation, which we are accepting, and the booster campaign.

It was important that the JCVI took its time and looked at both first-dose and second-dose data on the rare signal around myocarditis and pericarditis. The United Kingdom has sometimes been an outlier to other nations, but on the whole we have got these decisions right because we rely on that expert clinical advice. I hope that gives reassurance to families up and down the country.

On vaccine passports, the Secretary of State for Health made it clear that we will not go ahead with vaccine certification for nightclubs or other venues. No one—certainly not on the Government side—would have moved forward with that happily. [Interruption.] If we are to have a grown-up debate, it is important for the whole House to remember that the virus is still with us and that we all want the same thing: to transition it from pandemic to endemic status so that we can have a sustainable return to normality as quickly as possible.