Committee (4th Day)

Health and Social Care Bill – in the House of Lords at 3:47 pm on 9th November 2011.

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Relevant documents:19th Report from the Delegated Powers Committee, 18th Report from the Constitution Committee.

Clause 4 : The Secretary of State's duty as to promoting autonomy

Amendments 35 and 36 not moved.

Amendment 37

Moved by Lord Warner

37: Clause 4, page 3, line 9, leave out "manner that it considers most appropriate" and insert "interests of the health service"

Photo of Lord Warner Lord Warner Labour 3:48 pm, 9th November 2011

My Lords, in the absence of the noble Lord, Lord Patel, I should like to speak to Amendment 37 as my name has been added to it.

Before getting down to the precise wording of the amendment, I want to give some context to my remarks by talking about what I regard as the total incoherence of Clause 4. I note from the letter of 7 November from the noble Earl, Lord Howe, to my noble friend Lady Thornton that the Government now seem to want to treat Clause 4 in the same way as Clause 1. I have to say that that is hardly a ringing endorsement of the drafting of Clause 4. I wonder, privately, how many other clauses we will have this problem with as we progress through the Bill. In effect, the Government are seeking to take these clauses out of the normal consideration of a Bill in Committee. We are getting into rather strange territory where, as we wander through the Bill, we find that, when the Government find themselves under pressure with regard to bits of the Bill, they sweep those bits aside to have another go in some procedure, which is less than clear to the House, and promise to come back later. Before I go any further on the amendment, as I am already unclear as to how the Government are going to handle Clause 1-and, it now seems, Clause 4-procedurally, I would welcome any light that the Minister can shed on how we are going to deal with these clauses and have a proper discussion of them in Committee.

I turn now to Amendment 37. I am completely supportive of reducing or even stopping ministerial and Department of Health micromanagement of the NHS.

Photo of Lord Mawhinney Lord Mawhinney Conservative

I am extremely grateful to the noble Lord. Is he aware that the concern which he has just expressed is held by other noble Lords as well?

Photo of Lord Warner Lord Warner Labour

I am grateful to the noble Lord for that intervention. The more the merrier, I say, on this theme and I hope that noble Lords will speak out about this issue in our debate today.

As I was saying, I am completely supportive of reducing or stopping ministerial and Department of Health micromanagement of the NHS, which, as I understand it, is the Government's purpose in framing Clause 4. However, I struggle with reconciling the clause in its present form with the other duties and powers that the Secretary of State has taken unto himself in the Bill. I do not just mean the relationship between Clauses 1 and 4, which itself seems to have produced a hefty dose of confusion and uncertainty, not to mention, in the case of Clause 1, many attempts at drafting alternatives. How will Clause 4, for example, fit with Clause 3, which most of us in the previous session in Committee-except, perhaps the Minister-seemed to favour strengthening in terms of the duty on inequalities? How will it fit with Clauses 16 and 17, with their very extensive regulation-making powers for the Secretary of State, or indeed Clause 18 or Clause 20, which gives the Secretary of State extensive mandating powers, which seem to me to be rather stronger than the new chairman of the NHS Commissioning Board seems to think?

Many people who have looked at the Bill do not understand what the Secretary of State is trying to do in relation to the issue of central control, central powers and autonomy and delegation. Is he trying to let go or to tighten his grip? I do not see, at present, how the Government can retain in the Bill a clause as loosely drafted as Clause 4 and, at the same time, retain all the other powers of the Secretary of State that we will be discussing later. Apart from anything else, this is a recipe for confusion in the minds of many local decision-makers.

Are people to take Clause 4 as drafted at face value? If they do, will they not be wondering whether the Secretary of State or his henchmen and henchwomen in the Department of Health or the NHS Commissioning Board will come down on them like a ton of bricks using other powers in the Bill if they think that they are not acting in the interests of the NHS? What will the courts make of all this? If people do not like a decision taken higher up the line, as the Royal Brompton and Harefield NHS Foundation Trust is demonstrating now over paediatric surgery changes, do they seek judicial review of the central decisions, praying in aid Clause 4 as drafted? Will not Clause 4 in its present form simply encourage legal challenge and create local uncertainty?

I turn to the wording of the clause and why Amendment 37 is at least an improvement. It is an attempt to improve what is a highly defective clause. As I read Clause 4, it seems to place little inhibition on local decision-makers,

"exercising functions ... or providing services", in any manner that they consider appropriate. If that means what it says in the dictionary, if people want, for example, to provide a wide range of alternative therapies for which there is no scientific evidence of clinical benefit, they can do so, praying in aid the powers under Clause 4. If they want to remove tattoos or do a bit of cosmetic surgery, I cannot see that there is very much to stop them. Under the clause as drafted, the Secretary of State can intervene only after the event. If he finds out what has been going on, he can, in effect, try to stop it happening again, but that is ex post facto. He cannot intervene earlier, as I understand the drafting of the clause. I am happy to be corrected by the noble Earl, but I am not the only one who thinks that these powers will have that effect.

Amendment 37 is an attempt to require those behaving autonomously locally to apply the test that their actions are in the interests of the NHS before they take their decisions rather than relying on the Secretary of State deciding that they were not in the interests of the NHS after the event. I see that my colleague, the noble Lord, Lord Patel, is now with us. I suspect that we both agree that it is a far from perfect solution, but it is better than the way that the clause is currently drafted. I know that some noble Lords are very attached to the clause-like me, they are attached to the idea of autonomy-but I hope that they will consider whether in its present form it is really in the best interests of the NHS. I suggest that the Government rethink the form of Clause 4 if they want to proceed with it. As I see it, what would get nearer to their intentions but not create some of the loopholes that I have identified is a kind of drafting that gives a commitment that the Secretary of State would not exceed the powers provided elsewhere in the Bill, would impose only burdens that are totally consistent with those powers and would maximise operational freedoms for those delivering NHS services consistent with public accountability. That seems to me to be the direction in which the Government are trying to go, but the way the clause is drafted does not do that.

I would prefer the Minister to accept that the clause is seriously deficient and either abandon it altogether or take it away for a serious makeover. In the mean time, on behalf of the noble Lord, Lord Patel, and myself, I move Amendment 37, which goes a modest way to improve the shape and drafting of the clause. I beg to move.

Photo of Lord Patel Lord Patel Crossbench

My Lords, first, I offer my sincere apologies to the House for being delayed. I was also thrown by the fact that that the first two amendments were not moved. I am sorry about that. I am grateful to my friend, the noble Lord, Lord Warner, for moving the amendment in my absence, and I join absolutely in his comments. I shall try to cover some other points. My name is also on the amendment tabled by the noble Baroness, Lady Williams, and I support that too.

As I interpret it, under the clause, as long as the Secretary of State does not think that it is inconsistent with the interests of the NHS, he or she must act positively to allow any other person exercising health service functions to do so in a way that that person thinks appropriate. Although the Secretary of State keeps some form of oversight, it is the views of other persons and bodies delivering health services on how those services are to be delivered that are important.

This duty would therefore require the Secretary of State, when considering whether to place requirements on the NHS, to make a judgment. The challenge for the Secretary of State would be to justify why these requirements were necessary. Does this mean that the Secretary of State has the power to act only when the steps to be taken are really needed or essential, rather than because he or she thinks that something is desirable or appropriate? He or she would have to demonstrate why no other course of action will be followed. Is that a high test to meet on the part of the Secretary of State?

What happens if the Secretary of State uses his or her powers to impose requirements on commissioning boards-consortia, for example? Would there be a judicial review challenge from a consortium that opposed the requirements on the basis that they infringed the principles of autonomy and could not be justified as necessary or essential? This approach replaces the power that the Secretary of State currently has to make directions. It is the same autonomy duty that is placed on the NHS Commissioning Board, and it is of course the board that will have closer contact with commissioning consortia than will the Secretary of State. This clause gives powers of autonomy way beyond any duty that the Secretary of State would have.

I know that the excuse will be given that this autonomy is required to prevent any micromanagement of the health service by the Secretary of State, but there are no examples of micromanagement by the Secretary of State-I have no doubt that I will hear of them if there are any. Another excuse will be made that this autonomy is required to allow the NHS Commissioning Board and commissioners to reconfigure services. I have spoken before and I am pro reconfiguring services-I think that they do require reconfiguration-but that does not require this degree of autonomy and powers to be given away by the Secretary of State. Like my noble friend Lord Warner, I hope that the Minister will at least indicate that this clause needs amending or abandoning.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative 4:00 pm, 9th November 2011

My Lords, I very strongly support the spirit of Clause 4, and I oppose the amendment that the clause should no longer stand part of the Bill. I accept that it could be amended and could be clearer, but I want to hold to its spirit.

In the past I have put down six amendments to two major health Bills in an attempt to achieve something similar to what is in Clause 4. I have to say that my attempts, although I was supported by the King's Fund, were puny compared with the weight of this mighty Bill. I hoped that my time had almost come. I say almost, because I know that the Minister, in his letter dated 7 November to the noble Baroness, Lady Thornton, which the noble Lord, Lord Warner, mentioned, is suggesting a strategy. I understand that the noble Lord, Lord Warner, does not like this strategy. In contrast, I do. One of the real hallmarks of this House is that we try to negotiate and accommodate what we, as a whole in this House, feel is appropriate.

In revising and amending the Bill, I appreciate that an enormous amount of time and care-

Photo of Lord Warner Lord Warner Labour

I am not opposed to having a strategy, if I may say so to the noble Baroness, and I thank her for giving way. However, when a Bill reaches this House with a major clause in it, it has been through the other place and has been subject to a lot of scrutiny by Professor Field and his group, the Future Forum, it is reasonable to assume that the drafting does not have the kind of loopholes that this clause has. I am not the only one raising this; other people are raising the same issue. There is a lot of concern outside. We are not opposed to having a strategy, but it is reasonable to expect the Government to have got the Bill into a better shape than it was in before it came here.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

My Lords, I thought that that was the whole purpose of Committee stage. This stage is intended to question some of these concerns and to see whether a resolution can be achieved.

Photo of Lord Warner Lord Warner Labour

The noble Earl is taking this clause out of the Committee stage, so far as I understand his proposal. If the strategy is to take clauses out when the going gets rough, that does not seem to be in keeping with the spirit and behaviour of this House.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, I have no desire to take this clause out of the Committee proceedings. These proceedings are continuing. We have heard the noble Lord and his views, and I look forward to hearing other noble Lords. I am not in the least desirous of inhibiting debate on this clause, which I think is very valuable. However, perhaps noble Lords will consider that, in view of the undertaking that I gave on 2 November, there is a certain amount that need not be said today because I have undertaken to look at this clause on a cross-party basis and with an open mind. It is a clause that the Government were and are satisfied with and they believe that it can stand as worded without amendment. However, I appear to be accused of being too concessionary on this. It is a case of the Government being damned if we do one thing and damned if we do the opposite.

I felt that my offer to the Committee was helpful. I think that there is concern around the Chamber about this matter and I can only repeat my offer to look at that concern and, if we can reach an agreement, to put beyond doubt the fact that these clauses do what I believe many noble Lords wish them to do. I hope that in that spirit the noble Lord, Lord Warner, will agree that, while we can debate the clause today for as long as we wish, the offer is there on the table from the Government to engage in cross-party discussions with a view to reaching consensus.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

My Lords, if the noble Baroness, Lady Cumberlege, will allow a moment's interruption to her speech, I promise to give way. It is very important to state that a number of us who have tabled amendments to this clause, including those of us who have expressed a desire for it to be omitted, did indeed inquire whether it might not be wise to try to discover more about the precise meaning of the clause. There are some arguments among lawyers about its effect and about whether it should be taken together with Clauses 1 and 10, to which it is clearly very intimately related-a point raised by the noble Baroness, Lady Jay, in her role as chairman of the Constitution Committee. Therefore, we must stand accused of having asked the noble Earl, Lord Howe, whether he would be willing to consider taking this group together, not forgetting the long debate that we had on Clause 1, in order to find out whether there is common ground about their precise meaning, their weight and their relationship with one another. The matter will then of course come back to the Committee for wider consideration.

I hope that the Committee will recognise that, with such a difficult balance of legal opinion, it may be sensible to discuss the issue further before bringing it back to the Chamber for the continuation of the Committee stage. In fact, what I thought the noble Lord, Lord Warner, was most eloquently asking for was that the clause be taken away for reconsideration. He went on to say that that might be a good way to deal with the matter. We are in total accord with the view of the noble Lord, Lord Warner, and I therefore ask him to allow us to continue with that reconsideration.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

I am very grateful to the noble Baroness, Lady Williams, who has put the matter eloquently and correctly. I am very much in favour of my noble friend's wish to try to get some negotiation. As the noble Baroness said, many of us feel that that is the way forward.

This is a difficult issue. It is trying to get the balance right between, on the one hand, the accountability and responsibilities of the Secretary of State, and, on the other, the freedom of those managing the service to do so without interference. Many of us are trying to achieve that balance.

I should like to refer to the letter that the noble Lord, Lord Warner, mentioned because I want to get it into Hansard. My noble friend urges us to consider three key factors in his letter and I quote the second one. He said that,

"we fulfil the policy intention that the Secretary of State should not be involved in the day to day operations of the NHS. Ministers should set the overall strategy, hold national arms-length bodies rigorously to account for their performance, and have the requisite power to intervene if the system is not operating effectively".

Those are my views entirely.

I am now going to say something that I know is extremely unpopular in the Palace of Westminster: politicians are really neither loved nor trusted by the public to a great extent and I have to say also that they are seldom admired by those working in the NHS. There have been too many decisions that have been taken without any evidence to support them, resulting in very long delays in things such as reconfigurations. Those delays have jeopardised patient care. Reversals have been made at the last minute, ignoring well founded clinical advice from clinicians saying to us that the service is unsafe, yet the position of an inadequate, unsafe hospital or service continues because of political interference. That undermines the confidence of managers to manage.

I want to mention Kevin Barron, who is the Labour MP for Rother Valley-

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health), Shadow Spokesperson (Equalities and Women's Issues)

I do apologise to the noble Baroness, but I absolutely cannot resist asking her whether she thinks that the public love quangos more or less than politicians, since the intention is to put our National Health Service in the hands of an extremely large quango. So is it Andrew Lansley or David Nicholson?

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

My Lords, I have not seen any evidence from MORI or any other polling organisation that has put that question to the public, so it is left in the air. I have seen the MORI poll that very recently showed that 88 per cent of people who were questioned said that doctors were the most trusted profession to tell the truth, whereas only 14 per cent thought that the truth was told by politicians. I think that is really sad-sad for democracy and sad when it comes to trying to build the confidence of people who are in charge of the National Health Service.

One real problem, which exists even if the same party is in power for a length of time, is a lack of a consistency of leadership. The Secretaries of State are here one minute and gone the next. Really successful organisations-I am thinking of schools, hospitals, companies-benefit from continuity in leadership. I read the other day that Sir Alex Ferguson has been in charge of Manchester United for 25 years. If we had had that inspiring leadership for a real length of time, I wonder what difference it might have made to the NHS. Since 1997 we have had seven Secretaries of State. Frank Dobson was in charge for 17 months. Alan Milburn, the longest serving Secretary of State, served for four and a half years and some might think that he was the most successful. At least he had time to draw up the NHS Plan, which made an impact on the service and he had time partially to implement it. John Reid-now the noble Lord, Lord Reid-Patricia Hewitt and Alan Johnson all served two years, and Andy Burnham less than a year.

Those of us who have served in government know, as Ministers, that you take up your post with enormous enthusiasm and unrealistic aspirations. You want to do things. Above all, you want to improve the NHS. You believe that you are in charge and that you can set policy. But, no, the first thing that happens is that you inherit the policies of your predecessor, which are not your policies that you know and love. They are not yours, but you do your very best to implement them. Then you have a chance to set your own policy but, before you have had time to implement it, you are off again. In the mean time, you are expected to make some very courageous, unpopular decisions about institutions that you may know very little about and about people whom you have rarely met. So how do you exercise judgment and build relationships when you are there for such a very short time, possibly just two years? That contributes to an NHS that gets confused and fed up and is mistrustful of its masters.

The NHS Confederation, the organisation representing chairs, non-executives and managers, has stated in its briefing for the Bill:

"Providing the Secretary of State's overall accountability is clear"- on which your Lordships are working at the moment-

"we strongly support these clauses as they should discourage unnecessary micro-management of the system. For example, political interference on previous decisions to reconfigure services has in some instances led to significant delays in the process which can only damage patient care".

Having listened to the noble Lord, Lord Patel, I followed this up and asked the confederation for some examples. Many of us know them: Chase Farm, the south London reconfiguration and a number of others. The noble Baroness, Lady Wall, who is in her place, is the chair of Chase Farm. After years of dithering and of advice that it was an unsafe place to be treated, she has now almost resolved the problems, and I am delighted.

The response from the confederation was: "How many examples do you want? We have so many and they cross all three political parties". I can quote examples where herculean efforts have borne fruit in that the public, staff, clinicians, the media and others involved have agreed to a change in service only to find that the party-political systems have overturned those decisions, in one instance-and I know it well because I was a regional chair at the time-overnight.

I am sure that the noble Lord, Lord Hunt, will say to me-because we have had similar debates to this in the past-that individual MPs who are rightly concerned about local facilities and may not agree with the decisions that are being taken will represent their views not only to the NHS Commissioning Board, which will be their right, but also to the Secretary of State and Ministers. That is part of the democratic process and, quite rightly, Clause 4 does not stop that happening. But what Clause 4 does is give the Secretary of State an opportunity to exercise his duty to promote autonomy and resist the temptation to meddle in and micromanage the NHS when he feels it appropriate so far as it is consistent with the interests of the health service.

In my early days, when I was working in the NHS, I felt that there was much more trust in governing boards. To be honest, I do not think that the calibre of members was any higher at that time than it is now, but when people asked the Department of Health to intervene, the stock answer was always: "This is a local matter". Knowing that there was confidence in our judgment made a huge difference to us in reaching decisions and implementing them, and to our willingness to take a bit of a risk and innovate.

It was no accident that the White Paper setting out the philosophy for the Bill was called Liberating the NHS.We should not be timid in allowing liberation: indeed, I think we should encourage it. I am confident that when we have worked through these issues on the Secretary of State's accountability, as suggested by my noble friend, that will come into place and be much clearer. However, I am concerned that in negotiations we do not lose the spirit that is in Clause 4, and that we protect the NHS from the whims and wishes of politicians to meddle, micromanage and maul the NHS to its undoubted detriment.

I am, therefore, seeking an assurance from my noble friend that he will safeguard the spirit of liberation that is contained in this and related clauses. When he negotiates with noble Lords in seeking an agreement on the Secretary of State's powers of intervention, I hope he will hold on to this very important principle: to allow managers to manage and to ensure that, although the democratic process takes place, we have enough safeguards to enable those who are really determined to make and implement decisions to do so. We must ensure that they will be much more free to put into place what they know is right on the ground, and that we do not lose that spirit.

Photo of Lord Davies of Stamford Lord Davies of Stamford Labour 4:15 pm, 9th November 2011

My Lords, the first thing I want to say in the light of the Minister's comments a moment ago is that of course I read his letter dated 7 November to my noble friend Lady Thornton, which was copied to a number of us. I think the Minister deserves considerable credit for it. I have no doubt at all that the letter was written in total good faith and was totally sincere. The Minister is trying to see if a compromise is possible: whether there is something that would be an improvement both to the existing text of the Bill and to the various amendments that have been put down. It is a creditable initiative on his part. I have tried in the past as a Minister myself to do things in that direction and I do not think the Minister should be penalised for that in any way.

Equally, as he said himself, the Minister does not want to inhibit the freedom of debate in any way this afternoon. It is very important that we express our views, because they can be taken into account when those informal consultations subsequently take place. If in fact his aim can be achieved and we can get something that we can all agree to, everybody should be happy. That is because we will be content that the Bill will be improved and the Government will find that they have a much easier ride on Report and Third Reading. If there is an agreed solution to this and other problems, I trust that the whole thing will go through Report and Third Reading like a dose of salts. Everybody could be satisfied with that outcome.

This group of amendments includes a clause stand part debate, and this clause raises two very important issues. First, I do not think that micromanagement is ever a good idea. You cannot run a business on that basis; when running a business you must appoint the best people you can find and let them get on with the job. It is exactly the same thing in respect of the armed services. Micromanagement is always a mistake in running or managing any human institution. That pretty much goes without saying.

The problem is that good management sometimes needs the ability to intervene very rapidly in a crisis, when things are going wrong. You cannot allow yourself-if you are going to have a well managed organisation-to be inhibited by bureaucratic procedures or rules from taking the necessary action to make sure that things are set right on the front line. That is probably more important for the NHS than any other human institution I can think of, because, literally, the activities of the NHS are a matter of life and death. Of course, that happens to be true of the armed services as well, but there are not many institutions of which that is true. The general principle is there.

My first point is that many of us are worried that, if the Bill is passed, there will be insufficient ability by the Secretary of State to take that necessary action, perhaps very dramatically, in a crisis. That is a matter of deep concern. There is of course-and I hope I do not offend either the noble Earl or others on the other side of the House by saying this; they know this perfectly well-a real concern out there in the public that the reason why the Bill has been drafted this way and why the Secretary of State's powers have appeared to have been, or some people feel they are being, emasculated, and the reason why autonomy is being emphasised, is that the Government think there is going to be a crisis in the NHS. The Government are not going to be funding the NHS at the same rate as the last Government did.

I accept that a lot of the money that we spent was not spent with enormously good value and probably too much was spent on paying more for inputs-perhaps excessive pay rises-rather than buying new outputs. A lot was spent on bureaucracy. Nevertheless, the bulk of it was spent immensely usefully. It was an incredible achievement to get maximum waiting times down from 18 months to 18 weeks. There is a general feeling out there that that progress is not going to be sustained and that this Government are not going to be committed to funding the NHS in the same way. They are trying to make savings of £15 billion to £20 billion, we hear. There is going to be a crisis and some nasty news coming through; hospitals are going to be closed and so forth. At that point, the Secretary of State is going to be able to turn round, because of the effect of this Bill if it becomes an Act, and say, "Don't talk to me-it's not my responsibility. Go and talk to the national Commissioning Board or your local clinical commissioning group. Go and talk to anybody. Don't talk to me".

We have that already. I am a total supporter of the independence of the Bank of England. I refused to vote with my then party, the Tory party, when it opposed that independence. However, an inevitable consequence of making the Bank of England independent is that when we have questions here on monetary matters, the Minister who is responding-quite normally and naturally-says, "Don't talk to me about it, go and talk to the governor or the Monetary Policy Committee. Don't talk to me". We do not want that situation to arise in relation to the NHS. That is the issue raised by this particular clause.

Secondly, I do not think that micromanagement or political management is actually the real problem in the NHS. I am sure there has been unfortunate political intervention and interference over the history of the NHS, and there is no doubt that is the case, but that is not the real problem. The actual, fatal tendency of the NHS-the besetting sin, if I can use a theological concept-is something quite different. Its fatal tendency is bureaucratic or producer capture: the tendency of any organisation that is in a monopolistic position to be run for the convenience and in the interests of those who are providing the service, whether doctors, nurses, managers or whatever. That is the problem we should really be addressing.

However, I am awfully afraid that the way this clause is drafted at present, far from acting as a barrier or corrective to that unfortunate tendency, may actually reinforce it. The text we have before us says that any person,

"exercising functions in relation to the health service"- must be,

"free to exercise those functions or provide those services in the manner that it considers most appropriate".

That seems almost an invitation to bureaucratic or producer capture.

I am not actually sure, with great respect to my noble friend Lord Warner-whose knowledge in this area I greatly admire-that his amendment fully addresses that. The amendment says,

"leave out 'manner that it considers most appropriate' and insert 'interests of the health service'".

That is a little ambiguous-the interests of the health service could indeed be what I define as the producer interest of the health service. I would much rather that it said "in the interests of the patient", or "according to the principles of the NHS". That would be clearer and would address the point that I am making.

Something needs to be done to redress the balance against this fatal tendency for the NHS to be run in the interests of producers, where the patient simply sits in line and then is grateful for what he or she receives. That is a culture we want to oppose and against which we must introduce long-term, structural, corrective mechanisms. That is a vital task for anybody framing a Bill to manage the future of the NHS.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat 4:30 pm, 9th November 2011

My Lords, as my noble friend the Minister points out, the autonomy clauses are to form part of the Government's discussions with other noble Lords about the Secretary of State's duties. These clauses are of considerable significance. In my judgment, Clause 4, relating to the Secretary of State's duty, and the new Section 13F, relating to the Commissioning Board, threaten the Secretary of State's primary duty to secure provision of services, however that is ultimately worded after discussions are concluded.

In principle, promoting autonomy is to be welcomed; so is avoiding micromanagement within the NHS, as my noble friend Lady Cumberlege so eloquently pointed out in her speech. One of the best features of this Bill is that it establishes a well-defined decentralised structure in which decisions about arranging and commissioning services are made at a local level in accordance with local needs and conditions. However, as the Government have recognised, it is also essential that final responsibility, both for the quality of the health service and for the very large sums of taxpayers' money spent in providing it, should rest with the Secretary of State, and that he or she should be accountable not only to Parliament for the exercise of that responsibility but answerable in the courts for failure to exercise it in accordance with the law.

I will say a few words now about how the difficulty arises in drafting provisions that strike the right balance between decentralisation and the Secretary of State's ultimate responsibility. As we all know, under Section 1(2) of the National Health Act 2006, the Secretary of State had a primary duty to,

"provide or secure the provision of services".

That was underpinned by a direct duty under Section 3 to provide a list of specific services such as hospital accommodation. That duty was in turn supplemented and buttressed by powers under Sections 7 and 8 to delegate and give directions to other NHS bodies. So there was under the 2006 legislation a simple linear structure down from the Secretary of State. Under the Bill, the position is more complex, because under Clause 10 the Section 3 duty to provide the specific services is devolved to the clinical commissioning groups, and the general powers to delegate and give directions are removed. That is why it is challenging to provide for an overarching duty on the Secretary of State to secure the provision of services under Clause 1, and to provide for the exercise of all his other functions to that end. It is that challenge that is principally to be the subject of discussions.

If the Secretary of State is bound by a duty to promote autonomy, as proposed in Clause 4, the force of his duty to secure provision of services is weakened, because his failure to intervene in any given case would be very difficult to challenge on judicial review, except in an extreme case. Generally, the Secretary of State could respond to any challenge regarding a failure to act on his part by claiming in his defence that he was declining to act pursuant to his duty to promote autonomy. It does not help that the Secretary of State would only be bound to promote autonomy,

"so far as is consistent with the interests of the health service", in the context of any such challenge. That is because the arbiter of what those interests were would be the Secretary of State himself. A court would not substitute its own view of the interests of the health service for his unless it was satisfied that his view was irrational; and that is too high a bar. It follows, in my view, that there is an inconsistency between the proposed duties to promote autonomy and fulfilment of the Secretary of State's overall responsibility, however it is to be expressed.

The problem with proposed new Section 13F is that it is proposed that the board, with regard to its autonomy provision, be similarly bound to promote the autonomy of the commissioning bodies and others. So the board can argue that it should decline to intervene with the commissioning bodies in accordance with its duty to promote autonomy. That could be relevant if the board were challenged by judicial review on its failure to exercise its intervention powers or, alternatively, relevant if the Secretary of State wished to exercise his powers in respect of the board on the board's failure to intervene where the Secretary of State thought that the board ought to intervene. Thus, while it is desirable- and I entirely agree that it is-for the chain of responsibility to allow plenty of slack as a general rule, when the chain needs to be tightened in the event of failure or threatened failure, the danger is that the chain will be found to be weak in two important links.

I look forward to the discussions to be held with my noble friend the Minister and pay tribute to his and his department's willingness to hold those discussions on a cross-party basis. I hope that we will see some way as to how this conundrum may be resolved, to retain a strong legal chain of responsibility without encouraging or permitting micromanagement of the bodies in the NHS, to which powers are rightly to be devolved. If we find a solution, that in itself will do a great deal to assist in the confidence that my noble friend Lady Cumberlege rightly points out is lacking among the public and the NHS in the political process.

I add only this. In my view, these two clauses could simply be deleted without doing any violence to the purposes of the Bill. That is because the principles of decentralisation and autonomy and the avoidance of micromanagement are defined and limited by the Secretary of State's powers woven into the very structure of the Bill and into the way in which the bodies relate to each other under the provisions of the Bill. I suggest that these clauses merely serve to muddy the waters.

Photo of Lord Mawhinney Lord Mawhinney Conservative

I noticed that the noble Lord, Lord Davies of Stamford, pointed to me when he talked about making a theological point about a besetting sin. Because I was going to compliment him and say how pleased I was that he did so, I will happily share that endorsement with the right reverend Prelate.

The noble Lord also made an extremely important point, and around that point I want to speak for a few minutes, with the House's indulgence. His second point was right; the problem with the health service is bureaucracy-it is not anti-liberation or shackles, but systems and procedures and a pressure coming from all sides that nobody should rock the boat. I listened to my noble friend Lady Cumberlege, and I shall come back in more detail in a moment on what she said, but I suspect that I cannot be the only one in this House to think that, for every case where outsiders did not like some political intervention, outsiders, including patients, did not like the lack of intervention from inside the health service.

On the whole, my experience of over 30 years at both ends of this Corridor has not been that patients come to me and say that the problem with the health service is the politicians. They more frequently say that the problem with the health service is the management or, as we discussed the other day, the doctors who will not admit when they have got something wrong, or the nurses who simply do not provide even the most basic care for the elderly in today's health service. So the noble Lord, Lord Davies of Stamford, did us a favour when he pointed out that bureaucratic point.

I remain extremely grateful to the Minister for the willingness that he expressed the other day to take away Clauses 1 and 4. Those in the House for that debate will know that it was a widely held view across all the Chamber-and the Minister not only agreed to do it but did it with a tone and spirit that was widely admired. I thank the noble Baroness, Lady Williams, for her contribution in support of that. I would not want anything that I or others say to make my noble friend feel as though the House was reneging on the request made to him to take Clauses 1 and 4 away, which he showed a willingness to do. My contribution to this particular debate is to suggest a few of the things that he might like to think about when he does so which may need to be clarified, resolved or excised, so that when we get back to this on Report he will have a much smoother run-one which I and I suspect other noble Lords hope that he will be able to enjoy.

When the noble Lord, Lord Warner, made his comments, I intervened to say that he is not the only one in the House who thought what he thought. I was referring to a very pertinent phrase which he used. He said that he was not clear whether the purpose of Clause 4 was for the Secretary of State to be engaging or disengaging. I think that is part of the problem of the drafting of this clause. Those of us with some knowledge of the health service are still unclear whether this is meant to help the Secretary of State engage or disengage.

That takes me to my noble friend Lady Cumberlege. She and I served happily together in the department. We conspired for the common good on many an occasion, both in public and over a cup of coffee in our offices. She knows it to be true that there are few people in the health service who I hold in higher regard for a lifetime of work. But I am going to add a "but". On this occasion, while I admired the tenacious adherence to what she read as the spirit of this clause, most of the rest of what she said left me wondering exactly where she was trying to go. Nobody is claiming that democracy is a clean and simple process. It can be messy. Part of my noble friend's argument was that Ministers were not to be trusted and that it would be much better to hand it over to the professionals. I respect my noble friend for that view but I do not think it carries a lot of weight. I, too, read the NHS Confederation's paper. In fact, I have it with me. Every time I read what it said on Clause 4, I thought to myself, "There is just the chance, Brian, that you are giving these people more credit than they deserve". Perhaps this is a politically incorrect thing to say, but I was reminded just a smidgen of Mandy Rice-Davies in the sense of, "Well, they would say that, wouldn't they?".

The problem with this debate is that you have the masses of the health service with their procedures and bureaucracy intermingled with outstanding professionals who, I know from my experience, feel as frustrated with their colleagues as sometimes Ministers feel with the bureaucrats. On the other hand, you have this messy democratic process that occasionally shifts Ministers. Listening to my noble friend, you would be amazed by the claim that the NHS is the envy of the world. I think it is only the envy of the world in certain aspects and that there are other aspects where the world thinks it can do a better job than the NHS. The health service is right up there competitively but given the history of the past 40 years, in which Ministers have played a leading role, it is hard to envisage the outcome that my noble friend talked about. Therefore, I have to say to her that I had a real problem with what she was trying to convey to the Committee. If you do not have democracy, you do not have any public accountability.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative 4:45 pm, 9th November 2011

Does my noble friend agree, however, that when I was putting forward the case, I said that we would not negate democracy but that this was a method whereby we could give the Secretary of State more discretion when he wished to interfere-or, rather, not to interfere but to let local people run the service? As a manager, I know that if you are going to achieve things you have to win the hearts as well as the minds of the people who are running the service. I sense that my noble friend is trying to ensure that I will be isolated in these arguments. When I proposed this, I said to your Lordships that I knew that the line I was taking would be unpopular in the Palace of Westminster. Of course it is, because the House is full of politicians. However, I would like to explain to my noble friend that it is not just my view.

Kevin Barron, the Labour MP for Rother Valley, who is a previous chairman of the Health Select Committee, told his colleagues-this was at the Labour Party conference, which understandably I was not at but I read the report-that he recalled looking at statistics for the east of England, some years ago, which were worse than for the rest of the country. The region had retained more local units, which corresponded with marginal constituencies and he said that it was his belief that health experts' advice, rather than party politics, should determine how and where facilities were provided.

In addition, Paul Corrigan, adviser to No. 10 when Tony Blair was Prime Minister, said that "the public want accountability"-we agree with that-"but are not very keen on the fact that the responsibility lies with elected politicians, who they do not altogether trust". I serve on a lot of committees, have been on a lot of platforms and have talked to a lot of people over the years in the National Health Service. The question that is often put to me is, "Can you not depoliticise the NHS?", because it is seen as a very real problem. I accept that we cannot, with this democratic process that we are in, but, as I was saying, there is a balance to be struck. At the moment, unless we have something similar to Clause 4, I cannot see that balance being achieved.

Photo of Lord Mawhinney Lord Mawhinney Conservative

I am grateful to my noble friend. The answer to her question is no. No, I was not trying to isolate or misrepresent her and no, you cannot run a publicly accountable health service without politicians-and without politicians being in charge. In her first speech, my noble friend prayed in aid the tendency of politicians to micromanage. There is one noble Lord in this House-who I will not name, for reasons that will become obvious very soon-who came to me when I was party chairman. He wanted to micromanage politically the hospital in his constituency. He was shown the door pretty quickly by me, precisely because that is not the sort of micromanagement that even politicians want to buy into, much less the medical profession, the nursing profession and all those who work in the health service. That is not micromanagement; that is pure political interference for self-interest.

I am not at all clear what micromanagement really is. Occasionally, as my noble friend pointed out, decisions are so difficult and tricky that they take quite a lot of time. I invite her to cast her mind back to those heady days when we shared Richmond House.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

That sounds very suggestive, my Lords.

Photo of The Bishop of Chester The Bishop of Chester Bishop

My Lords, perhaps the noble Lord, Lord Davies, was right to refer to besetting sins behind me.

Photo of Lord Mawhinney Lord Mawhinney Conservative

Moving on, I remind my noble friend of the times we sat with a cup of coffee and a private secretary or two-just to make her feel better-and we wrestled over some fairly difficult and complex issues. Either she or I would say, "We need a bit more information about that", the civil servant would say, "Yes, Minister", and in due course, when diaries permitted, we would sit down again with a bit more information. That can be said to be good ministerial governance-or it could be said to be politically motivated delay when others in the health service knew better, and if only we had got out of the way they would have done what they wanted, but they would do what those in power at the time happened to want, ignoring the contrary views of those who did not happen to hold the management positions at that moment.

I want my noble friend to accept that I still hold her in as high regard as I did before this debate started, but we part company fairly fundamentally on the issue of the accountability on a spend of £128 billion a year. As I said in an earlier debate-I have expressed this privately to the Minister, and my noble friend had the grace to say that he understood-my difficulty is that if you are spending £128 billion of public money, the public whose money are spending are simply not going to say when big problems arise, "Well, that's okay, we'll listen to him or her because he or she is chairman of a quango"-even a quango as highly thought of as my noble friend no doubt hopes the national Commissioning Board will be.

There is no debate in this House about the fact that the Secretary of State must be held accountable by Parliament. My noble friend Lord Marks of Henley-on-Thames made the point, which has to be right, that the Secretary of State must also be held accountable by the courts. However, the Secretary of State also needs to be held accountable by the public and the patients, who have not had a huge showing in our debates thus far. I have concerns about this clause because I am not at all clear how the Secretary of State is going to satisfy X billion people by putting in £128 billion that he is accountable to them for if they are absolutely determined that they want him to be accountable to them.

To help the Minister when he takes this clause away and thinks about it, I say to the noble Lord, Lord Warner, that I was not convinced by the amendment. I am happy that he has made that part of his contribution to the review that my noble friend will conduct, but I hope that he does not press it to a vote because I for one would not be able to support it.

There are parts of the clause that the Minister really needs to look at, such as the phrasing in new Section 1C(a):

"any ... person exercising functions ... or providing services ... is free to exercise those functions or provide those services in the manner that it considers most appropriate".

From that, I am not clear-I do not necessarily want the Minister to tell me this today, but I ask him to think about this-at what point these actions start to become health service policy in their own right. We quote precedent in here. If someone takes an action because they think it is right in the circumstances, does that become a policy or a guideline? Where does the Secretary of State play any role in developing a policy for the NHS?

New Section 1C(b) goes on to say,

"unnecessary burdens are not imposed".

I have to say to my noble friend that I do not understand what that means. Who decides whether it is a burden? Who decides whether the burden is unnecessary, and where can you challenge the decision whether a burden is a burden and when it becomes unnecessary? It is okay if you consider your action to be the most appropriate in the circumstances. My party occasionally gets criticised for being inclined to being a bit too individualistic, but you cannot run a health service in which everybody can make the decision that they think is most appropriate in the circumstances without a well defined political framework within which they would be expected to act.

I will tell my noble friend something that I have said to him in private but do not mind sharing in public. I spent 26 years at the other end of the Corridor. In all that time I never once voted against my party. Some in this House will see that as wimpish and craven, and some will see it as a fine expression of loyalty. Frankly, I do not mind how you see it. It is how I see it that is important to me.

I have not done a Committee stage of a Bill since I left the Cabinet in 1997, so I want Members of your Lordships' House to understand that I am not having much fun in these Committee sittings. This is not something that comes naturally to me, and I have tried to reassure my noble friend that my participation in these debates is because of my commitment to the health service and my desire that it should be as excellent as possible. This is for the sake of my former constituents, who are patients. In that spirit, I hope my noble friend will take away Clauses 1 and 4 and think about them again.

Photo of Lord Warner Lord Warner Labour

My Lords, I compliment the noble Lord on his speech and say that we hope to see him every day of this Committee.

Photo of Baroness Murphy Baroness Murphy Crossbench

My Lords, could I try to cheer up the Committee? We are getting very gloomy about this topic. To me, this is one of the most important clauses in the Bill and we must support it. I hope that we can reassure colleagues on the opposition Benches that there is no intention, as far as I can see, to withdraw any accountability, which we have discussed at great length. Nor is there any intention to interfere with the ability of the Secretary of State to intervene when necessary. It is clearly written in the Bill that the Secretary of State has a mandate and a multi-year setting of objectives, but he has to stay clear of interfering until something is really at crisis point, is going wrong or is urgent. There is plenty of opportunity for him to interfere.

I want to intervene because we have gone into the stratosphere with ideological and constitutional issues. We have certainly talked about political interference, and I agree wholeheartedly with the noble Baroness, Lady Cumberlege, about this. As a senior manager, I have a little list of Ministers around this Chamber who I can tell noble Lords did or did not interfere. I am delighted to say that the noble Baroness, Lady Cumberlege, was one of the least interfering of Ministers. Others around this Committee must wait for my judgment elsewhere.

However, we are forgetting the impact of the status quo on patients and their care. For me, this is the most important clause because it underpins the move away from the strangulation of the management chain from the centre to every part of the service, down to the healthcare assistant, towards a devolved, regulated system. What is more-and this is, I have to say, very irritating-this has been the intention of all Governments for the past 20 years. It was very strongly pushed by the Opposition when they were the Labour Government, and reducing this micromanagement has remained a key policy. I will tell the noble Lord, Lord Mawhinney, what micromanagement is because I have often experienced it.

Clause 4 is being called a hands-off clause but, as I have said, the mandate that is given over a multi-year period, with annually refreshed objectives, gives the Secretary of State a great deal of freedom to determine which policy objectives will be given priority. If the Secretary of State wants to interfere, he must come to Parliament to change that mandate and justify his reasons, but he can still do so.

The key role of autonomy will be given teeth-not just the autonomy of the Secretary of State and various bodies such as the national Commissioning Board and the foundation trusts, but that of the clinical commissioning groups. This goes all the way down through the system. To be described as autonomous, an NHS body must be responsible for strategic management, procurement, financial management, human resource management and administration. By strategic management I refer to defining the overall mission of the service or hospital, setting the broad strategic goals, managing the service or hospital's assets and bearing ultimate responsibility for the hospital's operational policies.

In the past few decades many countries have adopted various styles and degrees of autonomy, often giving autonomy to providers and to local purchasers and commissioners in public health systems. In countries as diverse as Thailand, New Zealand, Singapore and Spain, there have been a number of successful initiatives. In particular, I point to Catalonia, where, over the past 20 years, the public health system has been devolved to local commissioning organisations allied to the local authorities. This has freed providers from the predations of central government, which has had an enormously beneficial effect on the quality and efficiency of the public hospital system.

Let us look at the UK and the imposition of what the central chain of command does. It manifests itself in performance targets. Targets are always popular-they are brilliant and, what is more, the NHS always meets them. It may take some time but, usually, if you tell the NHS to manage something and hit a target, eventually it will get there. In practice, a project board forms. Some hospitals have as many as 500 projects going on at the same time. That was the number that was found by one consulting agency. It found an enormous number projects under way to deliver these targets, often with external consultant help from the centre or the assistance of external consultants such as the big five. It can be demonstrated very easily that when a project is going on it is possible to reduce admissions, for example, by 60 per cent, with positive effects on cost, quality of outcomes, follow-up and discharges. It is possible to reduce the proportion of beds occupied by patients who are medically fit for discharge by 25 per cent to 30 per cent and so on.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health), Shadow Spokesperson (Equalities and Women's Issues) 5:00 pm, 9th November 2011

I am sorry to interrupt the noble Baroness. I am listening carefully to her because she has great experience. Is she not talking about transferring the setting of targets, projects or whatever from the responsibility of Andrew Lansley as Secretary of State to Sir David Nicholson as head of the NHS Commissioning Board? If the problem, as she sees it, is the setting of too many targets and projects-although I do not know what that has to do with Clause 4- I am not sure what safeguards there are to stop that from happening anyway.

Photo of Baroness Murphy Baroness Murphy Crossbench

Perhaps I may respond. It is a direct result of that chain of command that goes from the Secretary of State, to Ministers, to Sir David Nicholson and to everyone inside the Department of Health. It is a direct result of the impact on the management system.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health), Shadow Spokesperson (Equalities and Women's Issues)

My point to the noble Baroness is that I do not believe that it will change.

Photo of Baroness Murphy Baroness Murphy Crossbench

I am sorry but I think it is the direct result of Clause 4. I shall continue my theme, if I may.

It is vital that we do not get lost in the impact of what the setting of targets does to the management structure. If the Government set goals and we have key performance targets, at the moment hospitals, services and local commissioners have no responsibility for their strategic direction or goals. I talk as someone who has been a strategic health authority chairman and I know exactly what micromanagement of health authorities and trusts means. I will come on to foundation trusts and why it has not worked entirely with them.

The targets are passed down through commissioning organisations without any understanding of the capacity to deliver. No sooner has one directive been issued than another set of politically interesting goals arrives as an additional directive-without removing the first. All this has no connection to how healthcare is delivered at the front line to patients and it creates a sort of parallel universe of management that never really touches operational patient care.

In mental health services, the care programme approach was an absolutely classic example of something that was implemented without any thought being given to how the service was really delivered and it therefore took 10 years to put in place. In successful businesses, managers focus their time and attention on operational realities-on how to help staff solve problems and improve day-to-day operational performance. This is the front-line machine that implements management decisions. However, in the NHS, managers are not interested in the front line. At every level, they focus upwards to the next level and, as a health authority chairman, I was pretty horrified to find that at least 25 per cent to 30 per cent of my CEO's time was taken up at meetings and other activities, to which we referred as "feeding the beast" of the Department of Health or of Ministers. I understand that in many trusts some 50 per cent of this time is taken up with managing the centre.

The preoccupation with satisfying the centre leaves front-line staff-unsupported and often demoralised-to cope with broken systems, unless they have a substitute in a charismatic clinician who leads them instead. That is why high-flying specialist units work exceptionally well and why everyday bog-standard services are often a disgrace. That is why meeting targets is often a game. Data are manipulated and money is diverted from one front line to another to achieve a target temporarily until the Minister's attention is diverted to the next enthusiasm.

The four-hour waiting time target at A&E is a very good example. This was an admirable target-some would say it was not tough enough-but it was achieved only with horrendous diversion of funds from other front-line areas and a reordering of clinical priorities, but with no real change in hospital behaviours or any understanding by staff as to why they were doing it. Metrics for the purpose of compliance are almost always different from those that one would wish to collect to understand and improve patient care pathways. A&E services targets were achieved at the cost of diverting increasing numbers of patients into medical assessment units and we have ended up with an 11.8 per cent increase in emergency admissions and vast numbers of patents being admitted from A&E who would not previously have been admitted-all in the interests of reducing a particular target, but without any fundamental change in the way that hospitals are run.

That is what this autonomy clause is meant to assist-we seem to me to be forgetting that. We must have organisations within the health service which set their own objectives, manage them properly and start concentrating on the front line of patient care. There is ample accountability in the Bill to ensure this along with the proper regulatory system. I know that autonomy can lead to machismo behaviour and that it can go wrong. We do need tough regulation, but we need tough light-touch regulation, with a mandate that has been agreed beforehand. With that, we will see that this autonomy clause is utterly vital to the way that we should be developing the health service.

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative

My Lords, I wonder whether I may contribute. It is perhaps rather rash of me as it will be obvious that I have not been here all of the time, partly because I had not anticipated that we would have such a lengthy debate after the agreement that I thought we had reached on Clauses 1 and 4.

It is perhaps appropriate that I should intervene, not least because I am the third former Conservative Health Minister to speak in the debate. I ought to make it clear to my noble friend Lady Cumberlege that it is 2:1 to my noble friend Lord Mawhinney, as indeed I made clear to her in a more private conversation yesterday. Nevertheless, I am unhappy to find myself disagreeing with her, and also, for the second time in two days, disagreeing with the noble Baroness, Lady Murphy. However, the fact is that I do disagree with them.

I cannot claim the record of my noble friend Lord Mawhinney of not having spoken against the Government since 1997. My record is much more sinful. I agree with every word that he said. I shall say that, rather than repeat it all. The problem with micromanagement is that what it means is to some extent dependent on the perception of the trouble that it is causing. Picking up the report published today, is it micromanagement for the Secretary of State to say that it is unacceptable to be leaving patients screaming all night, not to give them water, not to make sure that they are getting a proper diet and not to look after them or clean up for them? That could all be micromanagement, but the public will not regard it as micromanagement. They will say, "This is the NHS. You are responsible for the NHS. Get something done about it".

At the core of this is a point that my noble friend made and I made in different terms much earlier in our discussions. The notion that the Secretary of State can wash his hands of certain things is for the birds. Two of us here have been Ministers for Health and others in the Chamber have also had that position. If things went badly enough wrong, the Secretary of State could not go to the Dispatch Box and say, "Nothing to do with me, guv. Go and ask the Commissioning Board. Go and ask Monitor". It is nonsense, and we need to recognise that.

Photo of Lord Darzi of Denham Lord Darzi of Denham Labour 5:15 pm, 9th November 2011

My Lords, I enter the debate speaking as a professional working in the health service, but also as someone who has had the opportunity and privilege of serving in government. I might know something, therefore, about the accountability of driving quality and improvements. I also had to learn fairly quickly about the accountability in this democracy and the accountability, as the noble Lord, Lord Mawhinney, put it very clearly, about the expenditure of the health service.

I will use the example of a piece of work that I had the privilege of leading. Many noble Lords in the Chamber helped me through it. It was a review of the London healthcare services, called Healthcare for London: A Framework for Action. I led this piece of work with 150 clinicians, in addition to 100 Londoners-members of the public and also patients. The work took place in 2006, after a formidable amount of expenditure and growth in the expenditure of the NHS. As someone who worked and lived in London, looking at the quality of some of these services, the case for change was quite striking. Thirty-one organisations in London were providing stroke services but none of them was meeting the international guidelines and standards for stroke services. One-third of our primary care providers were single-handed and patient satisfaction was well below the national average.

I will put inequality in health on one side, but there are inequalities in healthcare not far from this building. If you take the Underground from Westminster to Canning Town, you will find that life expectancy there is about eight years worse. Those were striking issues that had to be dealt with. The question is who deals with that important issue-the accountability for quality in improving and changing services. That was a fairly long, democratic process. It had very important principles. It had to be clinically led, locally owned and evidence-based. We made a strong pledge: if change is to happen, an alternative needs to be described to the local population and patients before such change happens.

A year later, a significant amount of public consultation ended in an agreement to drive those fairly radical changes in a city that is competitive globally, whether considering its financial services, its scientific output or its universities. That was 10 years after another review by my noble friend Lord Turnberg in the same city, trying to address the same challenges facing us back in 1996-97.

I could not agree more about accountability. I say that having had the privilege of serving in government. Ultimately, accountability has to rest with the Secretary of State. It is important to recognise that. However, I support the noble Baroness, Lady Cumberlege, to a degree. I will mention the K factor. I am not sure how many noble Lords have heard of the K factor. It was well before "The X Factor" was invented. The K factor refers to Kidderminster, where something interesting happened. There was a significant change in a little hospital, for which the whole driver was quality and improvement in facing the challenges of that local health economy. A local MP lost his seat and was replaced for a decade in the other House by a retired physician, who is no longer there. The K factor created a huge amount of sensitivity within the political world-in all political parties in this country. The noble Lord, Lord Mawhinney, was a brave man to throw out the person who came to challenge him about that reconfiguration. I was not the Secretary of State; I was the most junior Minister; I was starting on the learning curve and I wanted to be the most junior Minister in the department. I cannot remember a single week in which I was not lobbied about a change. It was never written; it was all mentioned over cups of tea.

There is a challenge. On the one hand, the Secretary of State needs to be accountable-I could not agree more about that-but at the same time the Secretary of State must have regard to evidence, if independently proved by groups of professionals, to make change happen. There must be a clear red dividing line between what I call the politics of saving votes and the politics of saving lives. There is a fine line between the two. One deals with accountability to the public purse and expenditure; one deals with accountability for quality. I have seen Secretaries of State who have had the leadership and strength to balance those two. I do not believe that such balancing could be written into legislation. It requires political leadership and political strength to make some of those tough decisions.

Change is happening all around us. Scientific discoveries have meant that life expectancy has increased by about 10 years since the creation of the NHS. We should not contaminate that with our own local agendas. It is unfortunate that even up to now our consumers-our patients-have not been empowered with the knowledge that I and other noble Lords in this House have of what is good and what is not good. Transparency is extremely important. I see evidence of that being reinforced by the Bill that I had the privilege of taking through in the past. Transparency is one way of getting the balance right between the politics of saving lives and the politics of saving votes.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, I want to say only a few words. I cannot agree with the noble Baroness, Lady Cumberlege, that members of the public do not trust their Members of Parliament. Unfortunately, there have been a few problems, but surely we have moved on from there. I have just been to a meeting with about 20 Members of Parliament of all parties, who are supporting their constituents over the children's heart surgery unit in Leeds. They trust their Members of Parliament more than they trust the people doing the review.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I hesitate to join in this debate, because it has been fascinating and wide ranging, and I hesitate particularly to come in after the noble Lord, Lord Darzi of Denham. However, I would like to pull out two factors which are important here.

First of all, there are inherent tensions. Fears have already been expressed by the noble Lord, Lord Davies, in particular. One of the fears is whether we will have a National Health Service or a national health insurance, which will actually be an insurance programme. Those who belong to a GP and are part of a clinical commissioning group will then access those services which that clinical commissioning group determines to commission, irrespective of who the provider is, and there will actually no longer be a National Health Service.

That is linked to autonomy, because the worry in this clause-the second anxiety-is where the boundaries of that autonomy lie. This clause does not seem to stipulate any boundaries to the autonomy at all, nor indeed, whose autonomy overrules another's. Will it be the Commissioning Board, or the clinical commissioning groups? Where is the hierarchy? Health services are actually a spectrum. You cannot divide the actions of one from another, because they have a knock-on effect. A clear and very simple example is that delayed diagnosis in primary care results in later presentation and more expenditure in secondary care, but more importantly, in poorer outcomes for the patient, who has effectively been withheld from accessing expertise for too long.

Behind all that is a worry, because general practice per se is not an NHS employed service. GPs are individual contractors whose general medical services contract is remarkably poorly defined. It may be that the autonomy of the Commissioning Board will allow it to define very clearly what is in general medical services and what is out. The whole concept of GMS suffered hugely when the 24-hour responsibility went and out-of-hours services came in. That fragmented, to a large extent, what GPs did.

It is completely mistaken to believe that liberating the NHS depends on these clauses in the Bill. I have my name to one of the amendments to delete one of the clauses, but I do not see, from the debate that we have had today, how deleting the clauses will stop the changes to liberate the NHS that everybody has been arguing for.

Unfortunately for patients-and the NHS service is there for patients-the NHS has indeed become risk averse in a culture where the managers have become frightened, for whatever reason, of speaking out, and of taking patient-oriented decisions, and have often put pressure on clinicians to not do what they have wanted to do. I fear that behind that, too, there has been peer pressure and a mistaken view that it is unprofessional to show that you care. There has been a view that, if you step out from the local culture to do what is right for the patient, even though it may not be right for the service or the system, that can result in severe disciplinary action against an individual. We see the extreme of that with people who whistleblow and speak out for services. However, I do not think that any of that will be affected whether the autonomy clauses are in or out of the Bill.

In the past, I have argued with the noble Baroness, Lady Cumberlege, that the NHS should not be a political football and that there should be some distance between political interference and the way that the service is delivered on the ground. However, I must admit that I had never imagined that we might be discussing what could potentially be complete fragmentation of the service.

I should like to run through some of the boundaries that I think are very important in discussing this matter, and I know that we will be debating this further in relation to the role of the Secretary of State. Like others in the Committee, I commend the Minister for the way in which he handled the debate on Clause 1 and for his very positive approach to the discussions that we all need to have on these clauses at the beginning of the Bill.

Do the people with the autonomy have the skills and capabilities to exercise that autonomy, and how will those skills and capabilities be measured? How will autonomy interact, when you are trying to drive forward collaboration and integration and trying to drive performance management, with a decent level of services and consistency to improve quality if one part of the system decides, for whatever reason, that it does not want to provide a particular service or part of it? Will there be a requirement on these autonomous bodies to publish the evidence of their performance, or would such a request be deemed to be burdensome and to be impeding their autonomy?

I was particularly struck by a line in the impact assessment, which states that the reforms will create,

"a statutory basis for the NHS Commissioning Board and consortia, to protect them from interference in commissioning decisions at both a local and national level. To ensure their autonomy, both board and consortia remain solely responsible for their commissioning decisions, and neither are obligated to gain approval from local councils or health and wellbeing boards".

In other words, the K factor would not be able to function.

In the past, I have understood the concept of earned autonomy, where the power and ability to take decisions at a more local level come when there is proof that quality has been driven up. However, I fear that these clauses will not do that, and they may just give unfettered autonomy to organisations which may be ill equipped to cope with the range of responsibilities that will suddenly be thrust upon them.

Photo of Baroness Tonge Baroness Tonge Liberal Democrat

My Lords, I intend to be very brief because we have already had a long debate, but I am bursting to say something. We have heard very erudite and learned speeches, not least from my noble friend Lord Marks, who put the situation very clearly. However, I am a simple soul. I told your Lordships at Second Reading that I was a barefoot doctor trying to protect patients and my staff from the ravages of health service reorganisation, and I want to try to tell the Committee briefly how they see the combination of these two clauses.

If Clause 4 were adopted, that could lead to different sorts of health services all over the country. Provision would not be equal throughout the country and people would not like that. On the other hand, if Clause 1 were amended after discussion to make sure that the Secretary of State had a duty to provide certain services, that would rule out Clause 4-there would no longer be autonomy because, as I understand it, the Secretary of State would be able to say, "No, you must provide this tariff of services".

The noble Lord, Lord Warner, pointed out this afternoon-it was a long time ago now-that Clauses 1 and 4 do not affect just each other. They affect other clauses in the Bill, such as Clauses 17 and 20. An awful lot in this Bill is affected and it all interacts. That leads me of course to say: will the Government please go home, do a bit more homework, look through this Bill and take out all the clauses that are interdependent and cannot be decided until another one has been decided-in other words, start all over again? I fear that this Committee stage is going to degenerate into a sort of mad hatter's tea party and we shall end up with the noble Earl, Lord Howe, taking off his wrist-watch and putting it in his glass of water.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Health) 5:30 pm, 9th November 2011

My Lords, this has been an important and thoughtful debate which I am sure will inform the discussions which the noble Earl is about to embark upon with colleagues across the House. I rise to speak to Amendment 38 on a much narrower point. In the spirit of that amendment I will undertake not to impose any burden on the House in terms of taking a disproportionate amount of time to deal with it. The amendment refers to paragraph (b) of new Section 1C, which the noble Lord, Lord Mawhinney, also referred to in what I thought was a masterly and devastating critique of Clause 4 as a whole.

The amendment would replace "unnecessary" with "disproportionate" in terms of the relief of burdens on organisations within the framework of the health service. The noble Lord is quite right to say that "unnecessary burdens" could mean anything. He might think that "disproportionate burdens" could also mean almost anything, but at least it gives a sense of direction which would be more acceptable to your Lordships. The Government as a whole are somewhat obsessed with burdens in the belief that almost any duty-whether in terms of employment law or other issues, notional concerns about health and safety or even human rights legislation-is deemed to be somehow a dreadful burden. What is a burden to one set of people may be a perfectly reasonable duty in the eyes of others. In this particularly sensitive context of a key public service affecting everybody in the country as a patient or potential patient, it seems necessary to err on the side of caution when setting out a stall which could lead to great difficulty in any sensible degree of regulation. Of course one can overprescribe regulation. One can also underprescribe it. As it stands the clause appears to err very much in the direction of the latter. I hope therefore that the Government will look again at the drafting of the clause and that some move can be made in the direction set out in Amendment 38 in my name and in that of the noble Lord, Lord Rooker.

Photo of Baroness Wall of New Barnet Baroness Wall of New Barnet Labour

My Lords, I had not intended to participate in the debate because I did not arrive until it had started, but I have been here a long time now and want to share with people how it feels on the ground. What the noble Baroness, Lady Cumberlege, said is absolutely true. I do not envy the noble Earl because I think that the analysis that the noble Lord, Lord Darzi, gave is exactly how it feels. There is that dilemma. The noble Baroness congratulated us on now having a decision from the Secretary of State. We do, but the decision is bound up in another clause, which brings about another kind of action that we must take. It has not removed anything; it has just given us another dilemma and delay in what we must do.

I say to the noble Lord, Lord Mawhinney, that I only wish that everybody in his position did what he did. Though I have five years of experience, I am not medically qualified; I am just somebody who cares about the people that I have responsibility for as the chair. My experience from those years was often of political interference. I ask noble Lords to forgive me for being emotive about this, but it is absolutely true. We had consultation for many years, authorised by the independent review body. The Secretary of State at the time, Alan Johnson, said, "Whatever the review body says, we will go with it". That was perfect. Then we had a hold-up and a change of government. The new Secretary of State, Andrew Lansley, then came to our trust and said, "This isn't going to happen. We want people on the ground to be able to say, 'Yes, if I want this service, I can have it here, and, yes, if I want my baby here, I can have the baby here'". Both those services were questionable in terms of their clinical reliability. They were not unsafe, because we would not be doing it otherwise, but certainly questionable. And so we started all over again.

A year later, we have gone through not a consultation but the four tests, where the clinical members of the local authority team went through the same process as was involved in the previous consultation-is it clinically safe or is it not? It took a year or so for the Secretary of State to come back with another response to that. That was another stall, until, just a matter of weeks ago, we received a letter from the Secretary of State addressed to the local authority-because it had put the case to him-which said, "Yes, I think that the BEH strategy should go ahead, but, actually, I think that you should consider other things as well". Those things cut right through the BEH strategy.

Local MPs are very open about the fact that they have interceded and expressed their views. They are very proud to say, "I've spoken to Andrew about this and I'm not going to have that". This goes on all the time-I am not sure that this is inappropriate language to use in this House, so I ask your Lordships to forgive me if I am saying things that I should not; I am just trying to tell you what it feels like as somebody who is working in the health service on behalf of patients. That is how it feels. I do not know whether political interference by the Secretary of State, as I see it, can be removed by having the national Commissioning Board make the decisions, because my view would be that MPs will always go to whoever can make an intervention in Parliament. That goes for MPs from all parties; it is not about the present Government.

I do not envy the noble Earl in the decisions that he has to make about this, but the view of the noble Lord, Lord Darzi, is very much attuned to what I see in reality. There is a dilemma; there is that interference. But, on the other hand, there are major decisions that have to be made that can be made only by the Secretary of State in the sense of his or her national perspective. I have no words of wisdom, but I have a lot of feelings. Please can we get this right?

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health), Shadow Spokesperson (Equalities and Women's Issues)

My Lords, I have added my name to Clause 4 stand part. We have had a very good debate, to which my noble friends Lord Darzi and Lady Wall have brought an element of reality. However, their remarks do not take us from the point of wondering whether this is the right clause in terms of autonomy. They have both succeeded in pointing to the problem that exists, and I am not sure that the Bill solves it.

Autonomy, from the ancient Greek, means,

"one who gives oneself their own law ... In medicine, respect for the autonomy of patients is an important goal ... though it can conflict with a competing ethical principle, namely beneficence".

It might be thought that a health and social care Bill would reflect the second part of the above definition-culled, I have to say, from Wikipedia-given the concern for the interests and dignity of patients. However, such is not the case. Clause 4 seeks to insert a new section into the National Health Service Act 2006 under the rubric: "The Secretary of State's duty as to promoting autonomy". The clause requires the Secretary of State when exercising functions in relation to the health service, so far as consistent with the interests of the health service-not, it may be noted, in the interests of patients-to act with a view to securing certain things that the clause then goes on to list.

I had a discussion about this clause with the noble Baroness, Lady Murphy, yesterday or the day before. I say to her that the fact that we both seem to have completely different views of what this clause seeks to do actually tells us something about it and its drafting. We totally disagree about what we think this clause seeks to achieve. That alone should make us think that perhaps we need to go back to look at this clause.

Clause 4 places upon the Secretary of State a duty to promote autonomy, as we have said. We feel that this clause is part of the general shift of the Bill to denude the responsibilities of the Secretary of State, because-viewed alongside of the removal of the Secretary of State's current powers under Section 8 of the 2006 Act to give directions to PCTs and SHAs-it significantly dilutes the Secretary of State's powers to influence the provision of health services. Independent legal advice from Stephen Cragg QC, for example, commented on the consequences of Clause 4:

"If the Secretary of State attempts to use his or her powers to impose requirements on commissioning consortia, for example, then there could well be a judicial review challenge from a consortium which opposed the requirements on the basis that they infringed the principle of autonomy in the new Section 1C and could not be justified as necessary or essential. This approach replaces the, more or less, unfettered power that the Secretary of State has to make directions currently to be found in Section 8 of the NHS Act 2006 with a duty not to interfere unless essential to do so".

The emphasis on autonomy links to the change in the role of the Secretary of State, as was explained wonderfully and adequately by the noble Lord, Lord Marks.

Since the founding of the NHS, the Secretary of State has always had powers of direction and intervention over NHS bodies, which enabled him or her to control the system. While some providers such as foundation trusts could be given earned autonomy-as was referred to by other noble Lords-the Secretary of State retained control through commissioning and the nature of contracts with foundation trusts.

This is a very important clause, and nothing that has been said in this debate makes me think that I was wrong to put my name on behalf of these Benches to the Question relating to clause stand part of the Bill. I appreciate that we will be having a broad discussion of these matters along with Clauses 10 and 1 but, unless the Minister has something very significant to say about how he sees this clause evolving, I absolutely have to agree with the noble Lord, Lord Marks, that this can come out of the Bill because of all the other powers that remain in it, which we will look at in due course.

Finally, I thank the Minister for his letter to me, which was circulated around the House. I thank him and his staff and the noble Baroness, Lady Williams, and her colleagues for the fact that we are finding a way forward to having a discussion which I hope and trust will bear fruit.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 5:45 pm, 9th November 2011

My Lords, I, too, think this has been a very valuable debate and I thank all noble Lords for their contributions to it. I do mean that. Ministers always like to hear support, and I have had some of that today, but at the same time no self-respecting Minister would wish to brush aside the kinds of concerns that have been voiced this afternoon about the effect of this clause. I certainly do not wish to do that; hence my offer to engage in discussions with those noble Lords whose concerned voices have been heard.

Following the consensus that we reached at last week's Committee session on that proposal, I express the hope that noble Lords will feel able to withdraw their amendments at the end of this debate and that we will use the time between now and Report to reflect on the concerns that we have heard expressed about Clause 4-and, indeed, on Clause 1 last week. I recall from discussions in the Chamber on 2 November that the Committee had little appetite to hear me dwell on Clause 1 or the amendments to it. I am therefore going to keep my remarks brief. However, I hope that the Committee will find it helpful if I provide a bit of context to this clause.

As I said at Second Reading, our proposals for the NHS involve a fundamental shift in the balance of power, away from politicians and on to patients themselves as well as to doctors and other health professionals. This is not an abdication or divestment of power by politicians but a shift. I think that we all agree that empowering front-line organisations offers enormous potential to unleash innovation and to drive up the efficiency and quality of services. The noble Lord, Lord Darzi, to my mind, said it all. That is why the Bill retains the key powers that the Secretary of State needs in order to remain properly accountable but removes his current sweeping powers to delegate and give directions to other bodies.

Instead, the Bill sets out roles and responsibilities in primary legislation that local commissioning will be carried out by clinical commissioning groups-with their own distinct statutory duties, set by Parliament-rather than by PCTs acting under the direction of the Minister of the day. Ministers will have specific but extensive powers to set requirements for commissioners, in particular through the mandate to the NHS Commissioning Board and through regulations known as standing rules. As the noble Lord, Lord Warner, observed, I am sure that we will give some thought to the impact of the autonomy duty when, in future Committee sessions, we debate the clauses that give the Secretary of State these powers.

However, there is a clear need for Ministers to have sufficient flexibility to respond to changing circumstances in the health service. Given that, there is very little limit on what or how many objectives or requirements the Secretary of State can impose. That leaves open the risk that a Government-or indeed the board, which has an equivalent duty at Clause 20-could introduce process targets or burdensome rules that inappropriately interfere with front-line clinical decision-making. That is the last thing anyone wants. To my mind, this makes it vital to have some kind of countervailing force to establish the principle that Ministers should use their powers carefully. We believe that the autonomy duty provides this important safeguard, enabling organisations to act in the best interests of patients, free from the risk that Ministers or the board revert to a command-and-control style in order to achieve their objectives. The noble Baroness, Lady Murphy, put the point very well.

The duty is therefore an important symbol of the shift of power that the Bill seeks to achieve. I agree with my noble friend Lord Marks that the autonomy duty must be subsidiary to the general duties of the Secretary of State, including, in particular, his duties under Clause 1 of the Bill to promote a comprehensive health service and to exercise his functions so as to secure the provision of services. Although we believe that the duty of autonomy would not inhibit the Secretary of State in exercising his overarching powers and duties as set out in Clause 1, I recognise, as I say, that there are concerns about legal clarity. I therefore welcome the prospect of further discussions with my noble friend and other noble Lords outside this Chamber as to how we might put this matter beyond doubt.

Photo of Baroness Jay of Paddington Baroness Jay of Paddington Chair, Constitution Committee, Chair, Constitution Committee

My Lords, I apologise for interrupting during the Minister's conclusion but I hope this will be helpful. I want to explore whether he can just help me by describing what he sees as the scope of these discussions, in terms of the clauses to be discussed. As the noble Lord, Lord Marks of Henley-on-Thames, pointed out for example in his very helpful intervention when he made passing reference to it, the proposed new Section 13F of the 2006 Act, at Clause 20 in the Bill, is very relevant. It may be helpful to the House to know that the Constitution Committee was invited to look at this again. We have met since the last day of Committee and have agreed to look again at Clauses 1, 4, 10 and 20 precisely because of that interrelated matter. Could the Minister help us on that?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I am grateful to the noble Baroness. As she has indicated, there is certainly a read-across from Clause 4 into Clause 20, and I readily accept the suggestion that we should factor in issues that emerge from Clause 10.

I am clear that a successful process will be one that can take account of views from all political parties and the Cross Benches. As well as hearing in full from those Peers, many of whom have put their names to amendments and have become particular experts on this issue, there is also an implicit legal perspective to this and I believe that an important building block will be to engage with the Constitution Committee of your Lordships' House and other legal experts in this House on these points. To start that dialogue, I propose to meet next week with a number of noble Lords, if they are willing, to explore the process for going forward. Following that, I will write again to all Peers setting out the proposed process in more detail. I hope that that is helpful.

I have very clear answers for the noble Lords, Lord Patel and Lord Warner, and other noble Lords to the concerns that they have raised. However, for the reasons that I have set out, if they will bear with me, I shall refrain now from providing a detailed commentary on the amendments in this group. I hope that, with the prospect of future discussions that will factor in the valuable points in this debate, noble Lords will feel able, for the time being, to withdraw the amendments that they have tabled.

Photo of Lord Warner Lord Warner Labour

My Lords, there is a film showing in local cinemas called "We Need to Talk About Kevin"; I think that this excellent debate has shown that we do indeed need to talk about Clause 4. I do not intend to comment on all the excellent contributions that have been made. I just want to say two things in conclusion.

I think that the noble Lord, Lord Marks, has provided an excellent forensic analysis of what is wrong with this clause. My personal view is that he has holed this clause below the water-line. I hope that the Minister, in conducting these cross-party discussions, will really keep in the front of his mind the easy solution that the noble Lord, Lord Marks, has helpfully given to the House, which is that we simply drop the clause.

Secondly, I would say to the noble Baroness, Lady Cumberlege, that I do not disagree with her about many of the issues that she raised. However, if she is really concerned about reducing political interference in decisions on service reconfiguration, I would direct her towards Amendment 304 in the names of myself, the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy. There is room for another name on that amendment, which will indeed actually reduce political interference in this area. So I commend it to her. In the mean time, I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Amendment 38 not moved.

Clause 4 agreed.

Clause 5 : The Secretary of State's duty as to research

Amendment 39

Moved by Lord Willis of Knaresborough

39: Clause 5, page 3, line 16, leave out "have regard to the need to"

Photo of Lord Willis of Knaresborough Lord Willis of Knaresborough Chair, Science and Technology: Sub-Committee I (Higher education in STEM subjects)

My Lords, if I may, I will say to your Lordships' House that this group of amendments is about Kevin. It is also about Kate. This is perhaps the first time that we have had an opportunity to look at a group of amendments that will have an immediate and direct effect on the patients and patient outcomes. In moving Amendment 39, I will also speak to Amendment 41 standing in my name and those of the noble Baroness, Lady Morgan, and the noble Lords, Lord Walton and Lord Warner.

I should say from the outset that I am extremely supportive of other amendments in this group from noble Lords. Indeed, the fact that noble Lords from every quarter of the House recognised the importance of research and wanted to support this group of amendments demonstrates the real commitment that there is in seeing research at the centre of the new National Health Service.

I listened to the previous debate, and much of the debate on Clause 1, and so far a great deal of the debate has been about structures. Not one piece of empirical evidence has been brought forward that demonstrates that the proposed structures, either now or in previous health Bills, have been there with evidence that they will improve the service. On what we are about to discuss now, there is a mass of empirical evidence to demonstrate that putting research at the centre of the National Health Service will improve patient care and outcomes-and that, if I may respectfully say so, is really what this Bill should be addressing. How do we make things better for our patients and how do give clinicians the very skills, tools, drugs and procedures that they need to make it better?

Your Lordships received this week a lovely bound book by the British Heart Foundation entitled 50 Years at the Heart of Health. Throughout it there are a number of very interesting statistics. One that I draw to noble Lords' attention is fact number 24. It says that in 1961 somebody died from cardiovascular disease in the UK every 98 seconds; in 2009, it was every 174 seconds. The reason for that dramatic change was twofold: first, the clinicians dealing with those patients; and, secondly, the research they had at their disposal to make the treatments more effective. We celebrate the fact that we ended up with a significant drop of some 78 per cent in outcomes of deaths, but the reality is that far too many patients still die of cardiovascular disease, and we need the research and new techniques to be able to deal with this.

At the John Radcliffe Hospital, Oxford, an experimental new treatment using gene therapies to help prevent the onset of blindness is in its early stage of clinical trials. The use of gene therapies and of genomics and bioinformatics will make a radical difference to how we deal with our patients in future, offering them if not personalised healthcare at least far more targeted support for whatever disease they have.

Other noble Lords will speak from great professional and personal depth about the use of research and its importance. I declare two interests: first, my belief that training the workforce in giving access to research is the best way in which to improve patient outcomes-and I think noble Lords would agree with that; and, secondly, I chair the Association of Medical Research Charities, whose 127 member charities contribute more than £1 billion a year to medical research, some 30 per cent of all expenditure in this area.

We see daily the results of good clinical practice and research, but we also see the challenges that lie ahead. Of course, the UK starts from a very strong position. We are simply-and again there is clear evidence to support this-the most productive health research nation on earth when you judge the dollar input against research success. That fact was confirmed just last month by the global research report from Thomson Reuters. What we do not do nearly well enough is bring research to clinical practice quickly enough or exploit our advantage vigorously enough. To deal with that we require a quantum change in the regulatory framework and we need to use our NHS patient database far more effectively, which is why I am delighted that Amendment 40A in the name of the noble Lord, Lord Turnberg, who I will call my noble friend, begins the debate about how we use the National Health Service database much more effectively.

Patients want to be involved in trials and they want the NHS to be involved. In June 2010 the Association of Medical Research Charities commissioned MORI to ask people whether they wanted their local NHS to be encouraged or required to support research. Ninety-three per cent said yes. The National Institute for Medical Research in its work with INVOLVE got exactly the same results when asking patient groups whether they wanted to be involved. The public have a thirst to be involved in research and we need to take that up.

To be fair we ought also to congratulate the work that went on under the previous Government. The National Institute for Health Research, led by Professor Sally Davies, and the work that has been done since the Cooksey report on identifying NHS research resources and how to apply them has given us a huge start. We have recognised where the resources are. We know what the capabilities are. It is now a matter of using them. I welcome the fact that, for the first time in the history of the National Health Service, the Secretary of State will have a duty to promote research, as will the NHS Commissioning Board, the clinical commissioning groups and Public Health England. That is a huge step forward in putting research at the centre of the national health.

I welcome, too, and recognise the importance of the changes that have come to this Bill. The fact that none of these things was in it when it began its journey and yet, following the review, we now see that research is in the Bill is something to build on and to commend the Minister and the Secretary of State for.

The amendments that we are discussing today are probing, but they are the beginning of a process to elicit from the Minister how the duty of the Secretary of State will actually be carried out, because having a duty without defining that duty is a hollow gesture. What will be the extent of it? How will it be assessed, and who will assess it? How and to whom will it be reported? Crucially, how the culture of an organisation that is to see ever greater levels of devolution will retain the ability to require a research culture at the heart of everything it does is quite frankly beyond me, and we are looking for the Minister to explain how that will happen. These amendments seek to explore how far the research duty of the Secretary of State will compel him to lead the embedding of research across the National Health Service and public health systems at a national level.

Amendment 39 seeks to leave out the words,

"have regard to the need to".

They are totally unnecessary. The Bill should say simply, "The Secretary of State must promote". That is a clear definition, a clear statement of intent. Perhaps the Minister will explain the meaning of the words. Surely if this new duty is to have real meaning, the words,

"have regard to the need to", must be removed. Can the Minister provide more clarity on how this duty requires the Secretary of State to act to promote research and to use research evidence across the NHS? What powers will the Secretary of State have to make often overburdened clinicians, chief executives and governors put research at the heart of their own trusts, GP practices and commissioning groups? How will this duty extend to those who are private-sector or third-sector contractors? If a great deal of our services are to be delivered outside what we regard as the normal NHS structures, how will these people be encouraged to put research rather than profit or pure service delivery at the heart of their practices, or will it apply only to those organisations delivering NHS services within the NHS?

Can the Minister provide more clarity on the extent of the Secretary of State's duty to promote research and the use of research evidence contained in the very strange phrase,

"research on matters relevant to the health service"?

What does that actually mean? The phrase is incredibly broad. Virtually every aspect of health and social care that impacts on the treatment of patients could come within this responsibility. Surely that is not what is meant. Can the Minister provide further clarity on the research captured by this definition and reassure us that this will incorporate all research supported by the health service for the purpose of protecting the public in England from disease or other dangers to health?

Amendment 41 seeks to make the duty of using research in the field of public health more explicit by adding,

"research supported by the health service for the purpose of protecting the public in England from disease or other dangers to health".

This amendment begins to explore for the first time the duty of the Secretary of State to protect the public from pandemics or other national health threats. If there has been a devolution of those responsibilities to other boards, where does the Secretary of State's power begin and end, and what is his duty to ensure that there is adequate research in order to prevent those pandemics affecting the public as they have done in the past? It also begs the question of whether, if the Secretary of State is to lead and embed a culture change whereby no health research should fall outside his responsibility, this should include research in public health. Without rerunning the past debates about duties, I fully recognise that the Secretary of State will need responsible officers to help him perform or carry out his duties.

Can my noble friend explain who will be the executive officer responsible to the Secretary of State for research in the NHS and in Public Health England? In a recent Answer to a Written Question I put down the Minister said:

"It is not expected that Public Health England will, itself, directly hold funds to commission research ... the National Institute for Health Research (NIHR) will continue to take responsibility for the commissioning of public health research".-[Official Report, 7/11/11; col. WA20-21.]

But how will the NIHR, now to be wholly subsumed into the national Commissioning Board, carry out that function? Will the Chief Medical Officer, Professor Sally Davies, retain the equivalent of her current responsibilities as head of the National Institute for Medical Research, and by definition her responsibility for NHS research, or will that go to Sir David Nicholson as chief executive of the new national Commissioning Board? And what will happen to the £1 billion currently allocated and ring-fenced to NHS research, currently within Sally Davies's budget and the NIHR? I ask this because there is an obvious concern that the Nicholson challenge to save £20 billion in four years could seriously affect NHS research if, in fact, it were deemed to be part of the pot led by Sir David Nicholson within the board. What guarantee can the Minister give that current research budgets in the National Health Service will be protected? We have those guarantees within the research councils, particularly the Medical Research Council. We need to have exactly that same guarantee within the Department of Health.

I recognise, as I hope most people in the House do, the fantastic commitment we have seen through the CSR both for the Medical Research Council and the NIHR. We have seen the commitment to the new Crick centre in terms of basic and translational research. We can do nothing other than welcome the direction of travel of the Minister and the Secretary of State. This is not a carping set of questions; it is a genuine attempt to find answers. I do not expect my noble friend to have all the answers today. This is a probing set of amendments that seek to start a debate about the duties of the Secretary of State towards health.

I hope that by the time we finish this preliminary skirmish about research we will be a little bit clearer. It would be extremely helpful if the Committee could have an organigram, or at least some diagrammatic form, of where the responsibilities will actually lie so that we know what the research landscape will be. That would help us to concentrate our minds on finding productive solutions. I beg to move.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench 6:00 pm, 9th November 2011

My Lords, I warmly support this group of amendments, so ably proposed by the noble Lord, Lord Willis. The questions which he has posed to the Minister are of considerable importance. I do not propose to repeat them, but I look forward to hearing the answers.

In my professional lifetime, there is no doubt at all that research has transformed the practice of medicine. Research is the lifeblood of medicine. After all, antibiotics have been effective in depleting very many of the infectious diseases which I knew as a young doctor. Programmes of vaccination and inoculation have been successful in banishing smallpox from the world and, in the near future, it is probable that poliomyelitis will become a disease of yesterday as well-it is likely that there will be no such cases in the world in future. The conditions of childhood which so ravished children when I was a young doctor, such as diphtheria, scarlet fever and, to an extent, measles and German measles have been successfully controlled by vaccination. In particular, in relation to rubella or German measles, that programme has prevented the birth of children with many birth defects which resulted from infection with that virus in pregnant women.

There is no doubt, too, that the developments in diagnostic techniques, imaging, computerised tomography and other techniques, such as magnetic resonance imaging and so on, have transformed diagnosis. So, too, have many other techniques which have been introduced into medicine in the course of the last few years. Now, many painful and devastating operations have been prevented by interventional radiology, whereby under X-ray control, for example, in people with heart disease the passage of catheters into the coronary arteries can deal with that disease, even though in some cases there is a need for open-heart surgery. I could go on: there is hip replacement and joint replacement of all kinds, or the use of steroids in the management of autoimmune diseases. These have transformed the progress of medicine and, as the noble Lord, Lord Willis, said, today's discovery in basic medical science brings tomorrow's development in patient care. This is a lesson which we all have to recognise. That is called translational research; you translate the result of the basic research in the laboratory, or basic clinical research, into effective treatment of disease.

All of these things are happening all around us and, as the noble Lord, Lord Willis, said, the evidence is clear that when one looks at research citations and publications in learned journals, for instance, there are many more published in the United States but, if you translate those citations according to population this country, the United Kingdom, in its research productivity in the field of medicine, stands the highest in the world. Yet obstacles and problems which have been encountered over the years have to be overcome.

Fifteen years ago, on behalf of your Lordships' Select Committee on Science and Technology, I chaired a sub-committee inquiry into research in the NHS. From its very beginning, the National Health Service provided limited funds for research purposes and there was a locally operated clinical research scheme. It was helpful in that it helped many young doctors and medical scientists to take their first steps in research by receiving small grants to help them to conduct such investigations, but the actual amount of money expended in that way and the results of this research were very limited.

The outcome of the inquiry which I chaired was that the Culyer report followed, presented by the Government, and when my report was debated in your Lordships' House the Government of the day committed 1.5 per cent of the total expenditure of the NHS to research. Since that day, in fact, it has risen slowly from 0.7 per cent to 0.8 and 0.9 per cent, and has stuck at that figure. Nevertheless, as the actual costs of the NHS have escalated, so the money becoming available from that background has increased substantially and it is this that has led to the establishment of the National Institute for Health Research which, as the noble Lord, Lord Willis, said, is so ably chaired by Dame Sally Davies, who is also the Government's Chief Medical Officer.

We must not of course forget the contributions that have been made by the Medical Research Council. I was involved with the MRC for 16 years and was on the council for four years, and so got to learn a good deal about its productivity. It had a series of priorities, many of which related to the incidence of disease in the community in which it promoted research. Fundamentally, however, it looked to support research in the universities and in research institutes which were often orientated to specific problems.

Alongside that, as the noble Lord, Lord Willis, said, we must not overlook the contributions of research charities such as the Wellcome Trust, the Cancer Research Campaign and very many more, with many of which I have been specifically involved. They have made a tremendous contribution and, as I have often said in teaching medical students and young doctors, not only does research nurture patient care development but the resultant research has meant that although there are still many incurable diseases in medicine, there is none which cannot have its effects modified to a greater or lesser extent by pharmacological, physical and psychological means. These have made a major contribution and I have to pay tribute to the work of the pharmaceutical industry in the United Kingdom which, despite problems which it has encountered, nevertheless in my view remains the jewel in Britain's industrial crown.

These are crucially important issues, but why is research in the NHS so specifically important? It is because the availability of excellent records and very well defined populations has meant that, for instance, in epidemiological research and in research into the effects of drugs as tested in clinical trials the NHS has been a wonderful source for such activities. In the course of the last few years, however, clinical trials have been prejudiced, not least by the complexity of requirements for ethical approval-particularly in the case of multicentre trials, where a whole series of different organisations have been required to give ethical approval. There has also been a more recent problem from the European Union directive on clinical trials, which has to some extent had a difficult effect.

However, the recent report of the Academy of Medical Sciences on research governance and support-a review chaired most ably by Sir Michael Rawlins-has brought clarity and extraordinary new developments into this field. I am happy to say that the Minister and the Government appear to have recognised that this report is one of great importance and that, when implemented, as the Government propose, in a health research agency, which will be created as a new special health authority, it should streamline the process of research in the United Kingdom and make clinical trials very much easier to carry out.

Leaving aside clinical trials, though, NHS research involves other activities such as operational research, research into how health procedures can be carried out, research into their effectiveness and a whole series of research activities that have a sociological context-looking at the care of the elderly, for instance, or the development of new drugs and management mechanisms for dementia. I was delighted that recently a major grant from the Department of Health went to the Institute for Ageing and Health in Newcastle, in which I have personal interest and which is one of the most outstanding research depots in the world, examining the effects of ageing upon the human population and bringing up ideas to overcome some of its most devastating effects.

So, developments are happening. I seek support in principle from the Minister for the amendments, which are intended to put flesh on the bone. Clause 5-strengthened, I hope, by Amendment 39, which was moved by the noble Lord, Lord Willis-is actually all right so far as it goes, but it is crucial in my opinion that there should be more detail. I would also like an assurance from the Minister that when the National Institute for Health Research is absorbed into the National Commissioning Board, as it will be, its funding, based upon the Culyer and Cooksey reports of long ago, will be preserved and indeed ring-fenced. I support the amendments most warmly.

Photo of Lord Warner Lord Warner Labour 6:15 pm, 9th November 2011

My Lords, I shall speak to Amendments 40 and 42 in my name and those of other noble Lords. I also support Amendments 39, 40A, 41, 74, 89E and 199ZA in the names of other noble Lords and to many of which I have added my own name.

The noble Lord, Lord Willis, did us a great service in setting out the argument for strengthening these provisions regarding the Secretary of State's duties on research. There is a bit of a conundrum, as he put it very well, about how a Secretary of State and indeed the NHS protects research and development in a devolved NHS. That is a difficult issue, and it is not good enough simply to have a general duty on the Secretary of State. As the noble Lord, Lord Walton, says, we need more flesh on the bone that gives some comfort to the idea that the Secretary of State, whoever he or she is, will actually take an interest and pursue some other aspects around the duty of promoting R&D. It is difficult to see how that duty could be protected without some degree of capability to intervene and ensure that the NHS pulls its weight in co-operating with R&D.

I turn to Amendments 40 and 42 in my name. I speak from the background of having been for two years the Minister responsible for NHS R&D when we started the reforms of the structure of R&D in the Department of Health and the NHS to produce much more focus to the R&D programme, to streamline some of its approval processes and to improve the translation of research to clinical care-the so-called movement from the lab to the bedside.

I, too, pay tribute to the work done by Dame Sally Davies-she was just plain Sally Davies in those days-and the leadership and persistence that she has shown in this area. The ideas that we were putting forward then for a National Institute of Health Research, which to some extent was based on the NIH model in the US, were not uniformly welcomed, if I may put it that way, by everyone across the NHS. It was deemed to be a bit too interventionist in some of the activities that were going on in the name of research and development in some of the dusty corners of the NHS. We have come a long way in that period. That is the background from which I speak, because I am keen to ensure that we do not go backwards in this area as we devolve more autonomy to the NHS.

It is relevant that I was also a member of this House's Science and Technology Committee, where I had the privilege of working on the inquiry into genomic medicine under the extremely skilful chairmanship of the noble Lord, Lord Patel. That experience has convinced me that we need to feature R&D much more prominently in the Bill, particularly the issue of translating R&D findings into clinical practice that benefits NHS patients. That is what Amendment 40 attempts to do.

However, Amendment 40 goes further in two other aspects of successful development of research findings and their application in clinical practice: the back-up of information technology and the informatics skills, which are often inadequate to back up basic scientific discoveries. One of the things that the-in my view much maligned-national programme for IT did was to make it easier for researchers to access the very important patient database that the NHS provides for them, and it makes it easier for them to collect the kind of patient samples, if I may put it as crudely as that, that they need for their research. However, the genomic medicine report also showed that we have some serious problems in this country about informatics skills in carrying forward R&D in the health and life sciences area. That is why those parts of the back-up services get a special mention in Amendment 40.

I turn to Amendment 42. The noble Lord, Lord Willis, put his finger on it: if the NIHR disappears into the maw of the National Commissioning Board, how will its budget be protected? Will there not be a temptation, if times are hard, to dip into that pot and use it for operational matters such as the delivery of services? As a Minister and a civil servant who has worked in this field for many years, I can say that there is a great temptation when the going gets rough financially to-I shall put this as kindly as I can-reach into the pot of R&D, and indeed the pot of education and training, which we will be coming to later. I have watched people, who shall remain nameless, find themselves unable to resists that temptation. That is why I feel strongly that we should put something in the Bill along the lines of Amendment 42 to try to ensure good conduct.

Sometimes R&D is a bit slow in spending its budget. That is quite convenient if you are running into a bit of financial difficulty during the financial year. What happens is that money gets held back because of some pressing need and it will not really matter if we take a bit longer to get on with this bit of R&D. I assure the House that I have observed a Chancellor who managed to announce the same NHS R&D budget increase in two successive Budgets, and he was not spotted by anyone in the media. It is possible for some of this "peas under the pot" manoeuvring to take place. We are talking about political temptation, and Amendment 42 would provide some encouragement to resist it. The temptation to dip into R&D budgets is of course not confined to the NHS, but we have an opportunity with the Bill to ensure better behaviour in the NHS regarding R&D.

Photo of Lord Turnberg Lord Turnberg Labour 6:30 pm, 9th November 2011

My Lords, I rise to speak to Amendments 40A and 199ZA in my name. I also want to comment on some other amendments in this group. I speak as a one-time medical researcher, a trustee of a number of medical research charities, and as a scientific adviser to the Association of Medical Research Charities. In that I work closely with my friend, the noble Lord, Lord Willis.

Research, as we have heard, is not an optional extra. It cannot be added on to the NHS as and when someone thinks it is needed; it is a vital and integral part and it is good to see an acknowledgement of that in the Bill, even if it falls a little short of full endorsement. Research is no cottage industry, with more than £1 billion coming from the research charities every year and almost the same amount going in from each of the Medical Research Council and the NIHR. That is a total of around £3 billion a year. As for the Department of Health's contribution of almost £1 billion, I want to say how much Dame Sally Davies's role in securing that is appreciated, as indeed is that of the noble Earl who has been a great ally. However, Amendment 42 raises the question of whether this funding is secure for the future.

I can only re-emphasise what the noble Lords, Lord Willis and Lord Warner, have said. Even though research funding amounts to less than 1 per cent of the NHS budget-a pitifully small proportion in an organisation of this size-can we be reassured that it will not fall easy victim to the cuts we are going to see over the next few years? Is it really essential for this to be distributed through the Commissioning Board? Is it possible that it could come more directly via the Department of Health? I hope that the noble Earl will give us some comfort on this amendment. This is clearly of some importance and we almost certainly will have to come back to it at a later stage.

As we have heard, medical research in the United Kingdom punches way above its weight. By any measure, our outputs of research findings come high in any international league table and the fruits of our research are having a major impact on our health. We are living longer and healthier lives and one has only to look around your Lordships' House to see evidence of that. I suspect that there are few of us who are not taking one or more pills, keeping us in fine fettle. As the noble Lord, Lord Willis, said, the public at large is well aware of the benefits. According to a number of surveys, more than 90 per cent of patients and the public want us to do this research and, furthermore, want to be engaged in it as patients. They want this even if it does not benefit them directly but benefits only future generations. However, they also know that any patient who is part of a trial incidentally gets a better deal and better care as part of the research process.

They are enthusiastic supporters but that is not the only reason why we should be supporting research. There are considerable economic benefits too. The most recent of several studies that have shown this, Medical Research: What's it Worth? supported by the Rand Foundation and the Wellcome Trust, clearly showed that we gain between 35 and 40 per cent return per annum for every pound we put in. Although it takes several years for research done now to bear fruit-today it is coming from research done some years ago-the returns come from less sickness and absenteeism from work, greater productivity and less sickness benefit payments.

Research is a good thing all round and this Bill is a great opportunity to make sure we gain its full benefits. Amendment 39 emphasises the need for the Secretary of State to take his expressed desire to support research seriously and I strongly support that amendment. Amendment 199ZA, in my name, brings the same pressure on to the clinical commissioning groups and alters the wording in exactly the same way. It is at this level where I fear we have seen one of the biggest obstacles to promoting clinical research up to now. The same survey I mentioned earlier showing that patients are keen to be involved in research also showed that GPs by and large were antipathetic and at best uninterested in research. Few GPs engage in research directly themselves, but that is not the main problem. It is their unhappiness at having to spare any time, for example, in seeking the approval of their patients for them even to be approached by researchers and asked for their consent.

Researchers have to ask patients for consent but can do so only if the GP asks the patients for them first, and they are not at all keen. They say that there is not enough time. Yet their role is critical, not only to facilitate clinical research performed by others but to be responsible, through the CCGs, for commissioning those extra support costs that arise when research, funded by charities, the MRC and so on, is carried out. Research on patients supported, for example, by the British Heart Foundation or Cancer Research UK, often results in additional costs due to extra visits or more routine blood tests. Traditionally these should be funded by the commissioners of services. This Bill provides just the opportunity we need to make sure that those at the coal face, responsible for commissioning, can facilitate and fund this research.

I hope the Minister will consider the need to accept this or a similar amendment and examine how we might provide the inducements necessary to GPs and CCGs. A failure of CCGs to take on responsibility for creating the right environment in which we can gain the full value of external funders will be damaging.

I come now to the difficult issue of the use of patient data. How can we make sure it is possible to use clinical information about patients for research purposes? New Section 14X, to be inserted by Clause 23, describes the duties of clinical commissioning groups to promote research and includes the need to promote the use of evidence obtained from research for improving the health service. That is very good, but it says nothing of the other way round; of how we can use patients' data for research purposes. The amendment in my name, Amendment 199ZA, emphasises this point. The difficulty has been well rehearsed: how does one gain access to identifiable information about patients for research into their diseases while at the same time protecting their confidentiality and giving them all the reassurances that they need? It so happens that well over 90 per cent of patients are happy for information about them to be used for research, but the current system of safeguards goes well beyond the requirements of the Data Protection Act and is stifling much important research.

When data about patients are fully anonymised-a horrible word-and it is impossible for anyone including the researchers to identify a patient, then there is little or no trouble. However, when it is necessary for the researchers to know who the patients are, we get into problems. If, for instance, a researcher needed to use the cancer registry to look at whether patients with a given cancer were subject to some factors in their environment-for example, whether they lived near electricity pylons or some hazardous waste plant-then they would need to seek consent from each patient. But what if many have died in the mean time or are untraceable because they have moved away or gone abroad? It becomes impossible to do the research. The National Information Governance Board was set up for this purpose, but it is no more. I know that the Government intend to try to help with this now. I know that as a first step the patient information leaflet produced by the UK Clinical Research Collaboration, explaining how data about them can be used, has gone out to GP practices in Scotland and soon will be sent out in England and the rest of the UK. That is an excellent start. The Clinical Practice Research Data Link has also been set up, but I wonder whether the Minister can say how far we have got with that? Will it achieve what is needed: the rapid access to data for researchers with the approval of patients? Meanwhile this amendment seeks to flush out the need to address this hurdle to some important research.

Amendment 41 brings up the important issue of funding for public health research. Here I speak as a former chairman of the Public Health Laboratory Service, the forerunner of the Health Protection Agency, which is also disappearing. I cannot speak too highly of the marvellous work it did and does in protecting the public's health. It is a fantastic organisation. It works on outbreaks of food poisoning, epidemics of flu and immunisation programmes against a whole host of infections, to say nothing of its work in radiological protection and on all sorts of biohazards. The point is that this organisation is at the forefront of its field and is the envy of the world because it is able to do fantastic world-leading research. It is highly dependent on a continuing research effort to keep ahead of the infections and other hazards that are continually evolving. It is vital that it continues to have access to research grant funds, particularly external grant income from the whole range of potential funders to which it has access now, such as the Medical Research Council, the Wellcome Trust and so on. I hope the noble Earl will reassure us on this. His Written Answer to the noble Lord, Lord Willis, yesterday did not give any confidence that the Public Health Laboratory Service will be able to apply to external bodies for funding.

Then there are the directors of public health and their teams. They, too, should be enabled to conduct high-quality research. The amendment makes that clear. How will they receive the necessary support and encouragement when they transfer into the local authorities? It is not at all clear that local authorities are keyed into this, so some reassurance on this point would be helpful. Most of these amendments are probing-I think they all are-and seek simply to gain a greater understanding of the ways in which I hope the Government will support the research effort.

Photo of Lord Ribeiro Lord Ribeiro Conservative

My Lords, I shall speak in support of Amendments 40 and 42, which, as the noble Lord, Lord Willis, said, are very much appreciated and welcomed. They reflect the Government's acceptance of the importance of research and making this an express duty on the Secretary of State.

Some years ago, Professor Sackett made the medical profession aware of the term "evidence-based medicine". I should like to think that we have all adopted it in our clinical practices over the years. As a surgeon, I speak from a surgical perspective. In the 18th century John Hunter was approached by Edward Jenner with his dilemma about children in Gloucestershire who were being afflicted by cowpox. He wrote to John Hunter, saying, "I'm thinking about doing something about this and would like to cure the children in this area with a vaccination made from cowpox". John Hunter replied, "Don't think about it, do the experiment". We in surgery consider Hunter the father of scientific surgery but our problem is that we are, perhaps, not quite as cerebral as our physician colleagues. All they have to do is learn the discipline, acquire the knowledge and prescribe the tablets. On the other hand, we not only have to learn but must then apply our knowledge in carrying out the operation. There are two skills that we must acquire. For us poor surgeons, it is often a long sentence-spent not only in a laboratory but in the theatre, putting into practice what we have learnt.

Earlier, a noble Lord-I think it was the noble Lord, Lord Warner-used the term "from the bedside to the bench", which is very important. The whole concept behind translational research has been to get our trainees and doctors away from idea that all they have to do is stay in the lab, beavering away. It is about the patient. One of the things that surgeons try to do is take a problem from the bedside into the lab, apply stringent tests to it and then bring it back in the form of treatment, which might be by medication or an operative technique.

The problem for surgeons is that research and the assessment of research often lead to new innovations, treatments and operations, which have to be learnt. Time must be put aside for them to be learnt. Surgery has, in many ways, been the Cinderella of medical research. I say this with some feeling because of the NIHR budget of £1 billion, some of which goes to medical research, plus all the other funding that comes in from charitable causes. The share of the NIHR budget that goes to surgery is less than 2 per cent. Twelve million people a year are treated medically in this country. One-third of them will be exposed to surgery somewhere along the line. Yet look at the pittance of research money that goes to surgery.

I know that I will hear from my noble friends, as I am often rightly told by Dame Sally Davies, that you will not get anywhere unless you put the right papers and research in, and you get the quality of research that is published in Nature and Science. However, that has been a real problem for us. There have been many ways of assessing research. The research assessment exercise was a brilliant exercise in universities but it looked at the criteria of publication and scientific worth. Surgery is about patients and clinical research. In surgery, that has led to a reduction in academic surgical professorial posts from 30 to 15 in the past 10 years. The number of clinical academic posts has been reduced and, despite the wonderful work done by Sir Mark Wolpert in getting clinical academic posts, there are not enough. Many of our surgical trainees are not getting the training in research that they should have. Therefore, it is very important that surgery and all aspects of medical practice should be underpinned by an ethos of research.

I shall tell noble Lords one little story that perhaps explains some of the problems that can arise if you do not do this. I am sure noble Lords will recall, from the 1990s, a terrible scandal in the newspapers about a lady who had a laparoscopic operation and developed a major bowel complication. I think her name was Silverman. At that time there was a big newspaper campaign about the botched surgery that was undertaken by surgeons who were ill trained. The reason for this was that it happened at the time of the introduction of laparoscopic keyhole surgery. I am a general surgeon. Give me a knife and fork and I can operate, but to use a telescope with long, thin instruments while looking at a television screen you need hand-eye co-ordination. Nowadays all our kids are brought up on Playstations and so on. They can do it; it is not a problem. Go to any fairground in the country and you will see kids who could be surgeons. However, my generation had real difficulty in converting from open surgery, where you look at what you are doing, to operating through a television screen with your hands moving independently. Quite a few of those surgeons who tried to take on this new operation did not realise that they did not have the hand-eye co-ordination to do it. The net result was disasters and complications, and patients suffered.

As a direct result of the fallout from Silverman, the Government of the day-I am sorry to say they were the party on this side-agreed with the Department of Health to set up a national training programme. This was based at three centres in London, Leeds and Guildford. They set up the Minimal Access Therapy Training Units. The idea was to teach doctors-not just trainees but consultants as well-how to perform this operation properly, and for them to be properly scrutinised in doing so.

I am sorry that he is not in his seat, because the noble Lord, Lord Darzi, was our college's first laparoscopic tutor. He was the person given the responsibility of rolling out this training programme. With some money and help from the department at the time, we were able to kick-start this programme, which has become a national programme whereby nearly every hospital has access through a regional network of some sort or another. I declare an interest, in that I am proud to say that I was president at the time when we opened our own much bigger minimal-skills training unit at the college. I have come from the college where we are running a military operative surgical training course in those facilities.

We are benefiting many people who need the practical skills to do surgery. Therefore, in answer to Amendment 42, which addresses funding, it is essential that the ring-fencing suggested by the noble Lord, Lord Willis, in the context of the NIHR is absolutely essential. We have a situation that I am sure the noble Lord, Lord Warner, remembers well-in fact he referred to it. In 2006, when I was president of the college, I remember quite a few of my pronouncements in the newspapers about my absolute horror that the training programme for junior doctors was being raided by the Department of Health. I am not sure if the noble Lord was there at the time.

Photo of Lord Ribeiro Lord Ribeiro Conservative

I rather suspected that the noble Lord did. That is why I felt able to make that reference. None the less, I launched a big campaign at the time because here was a budget-part of the NPEC budget-for nurses, doctors and so on that was being raided. It should have been a ring-fenced budget for training, yet the money was taken out of that budget to meet the NHS deficit. There is a real danger for the present Government if a situation should occur whereby the £1 billion budget-and there is no reason why it should be more than that-that has been set aside for research, particularly as the Secretary of State has taken responsibility to promote research, was found to come under the auspices of the chief executive of the NHS Commissioning Board, and that at times of trouble and trial that that money could be used.

I wanted to speak in line with what I said yesterday, although some noble Lords may doubt that I have spoken briefly. However, I speak in strong support of Amendments 40 and 42.

Photo of Lord Patel Lord Patel Crossbench

My Lords, my brief is brief-and I shall be brief. First, I congratulate the Government on putting the need to promote medical research at the centre stage of the Bill. We have criticised a lot of things and we may criticise some more, but the recognition that medical research is important to improve healthcare has been stated throughout the Bill.

It would be surprising if I said that I do not support these amendments-I support every one of them. By the way, I say to the noble Lord, Lord Ribeiro, that he was lucky that the noble Lord, Lord Darzi, was not in his place when he said that surgeons do not do research. He might have given the noble Lord, Lord Ribeiro, a tour around his department.

Photo of Lord Ribeiro Lord Ribeiro Conservative

I gave a historical perspective. We started research in the 18th century. We may not have done it as well as the physicians, but that is when we started.

Photo of Lord Patel Lord Patel Crossbench

I should also tell the noble Lord that his laparoscopic training is also historical because robots are used now.

I have brief comments, but I shall focus particularly on the amendment in the name of the noble Lord, Lord Warner, that refers to the need for informatics to be properly established to promote research in healthcare. One of the key areas in biomedical and clinical research in the UK is focused on translational research, as other noble Lords have said, to try to get research into clinical care.

Informatics plays a key role in our ability to do translational research. There are three domains of informatics in biomedical research-biomedical informatics, medical informatics and translational research informatics. Translational research informatics is about getting multidisciplinary research into clinical practice, with clinical trials being the first step to it. As we have heard, we have notable successes from our medical research into clinical translation. I say with hesitation that we think we are leaders in the world, but we are not quite the leaders-although we come pretty close. However, we can do better, and to do so we have to have what is required to promote research and its use into translation. Therefore, we will have to develop all three domains and incorporate what we already have-health information involving the medical records to which the noble Lord, Lord Warner, referred, and the development of electronic medical records. I know that other amendments address that issue. We should also be able to carry out statistical analysis.

The noble Lords, Lord Willis and Lord Warner, referred to the rapid sequencing of the genome-whole-genome sequencing-that will impact on the whole of medicine. Recent rapid developments in DNA sequencing technologies have dramatically cut the cost and the time required to sequence a human genome to a point that it will soon be easier and cheaper to sequence each patient's genome and keep it in their notes. Every time they are diagnosed with or treated for a disease, a genome will be used to extract information. By combining that with our advancing understanding of genes and diseases, whole-genome sequencing is set to change the current clinical and public health practice by enabling more accurate, sophisticated and cost-effective genome testing.

Understanding the health impact of individual genomic variance presents a considerable challenge for analysis, interpretation and management of data. Managing that data will require bioinformatics to be established. The NHS should urgently develop clinical bioinformatics expertise and infrastructure to ensure clinical technical support for medical analysis and interpretation of genomic data. The amendment of the noble Lord, Lord Warner, that includes informatics is crucial in identifying that. If we are to succeed in applying the results of our research to patient care, we need to establish all these issues.

I should briefly mention Amendment 74 in my name. The noble Lord, Lord Willis, mentioned research in public health, as did the noble Lord, Lord Turnberg. My amendment relates to Clause 9 on,

"Duties as to improvement of public health", and the functions of local authorities and the Secretary of State as to improvement of public health. The amendment merely tries to,

"establish promotional research, and acting on research evidence into the causes of ill health".

It is important that local authorities recognise that public health directors should be involved in research in the agenda that is being developed in the prevention of disease. Those are my brief comments.

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour

My Lords, I was really pleased to see Clause 5 extend the duties of the Secretary of State with regard to research and its use. Clause 5 is a necessary acknowledgement of the extremely important role of medical and scientific research in ensuring that we deliver high-quality healthcare. The noble Lord, Lord Willis, and other noble Lords have spelt out graphically the dependence of improvements in treatments on research.

In his response to questions raised at Second Reading, the noble Earl, Lord Howe, repeated the Government's assurance that a culture of research and innovation would be embedded in the structural changes to the NHS proposed in the Bill. It is a fine promise, but I am concerned as to whether the Bill in its current form is able to deliver this in practice. The lack of detail or clarity across the Bill about the role of and commitment to research in the reformed NHS has been noted by a number of noble Lords. For this reason, Clause 5 needs to be stronger and more explicit.

Embedding research across the complex NHS system requires proactive, top-down, leadership. Clause 5, as it currently stands, does not define how the Secretary of State would provide such leadership. Acknowledging that such research needs to be promoted stops short of an active commitment to promote research, or indeed of saying what that action would look like.

We need a clearer indication of the strength of the research duty on the Secretary of State. I therefore support the amendments to Clause 5 which are in the names of the noble Lords, Lord Willis, Lord Walton and Lord Warner, and the noble Baroness, Lady Morgan. I applaud their call for more clarification of the extent of the Secretary of State's duties towards research.

Amendment 40 takes an important step in explicitly introducing a responsibility on the Secretary of State to promote the development of research findings for clinical application in the health service, and to ensure that we develop the necessary information skills and technology to support this application. Developing an environment in the NHS where research findings are taken up in support of the development of clinical applications is vital if we are to integrate innovation genuinely into the fabric of the NHS. Only with this happening will we ensure that the best care is provided quickly to patients and that we have more cost-effective health services. Only by embedding a research culture in the NHS which is driven from the top will we continue to attract commercial investment and R&D into the UK.

As the Association of Medical Research Charities has observed, having one of the largest single healthcare systems in the world should offer us a unique strategic advantage in terms of resources for medical research and innovation. Yet we know that in practice the adoption and spread of innovation within the NHS can be slow and unsatisfactory. The innovation review being carried out by the NHS chief executive is exploring how we can accelerate the adoption and diffusion of innovations in the NHS, but I have no doubt that strong leadership from the Secretary of State will be required to support this.

I also strongly support Amendment 42 in its attempt to establish an explicit responsibility on the Secretary of State to safeguard the funding of research and its application to health services. This amendment seeks to clarify how the bodies within the new structure of the NHS-the clinical commissioning groups and the NHS Commissioning Board-will take responsibility for treatment costs currently incurred for patients taking part in research funded by the Government or by research charity partner organisations. These excess treatment costs are currently distributed via PCTs' commissioning budgets, but the Department of Health has no enforcement powers to ensure these are paid. We need more clarity on how the CCGs will be supported to build expertise in this area.

In addition, the duties of the NHS Commissioning Board regarding research are unclear. I believe it is necessary to toughen up the board's commitment to promote research, rather than require it merely to,

"have regard to the need", to promote it. I know that amendments to later clauses in the Bill have been tabled to address both these points.

The new duty on the Secretary of State to promote research reflects the core role of research in the NHS and is a very important step. The overriding aim of these amendments is to achieve a clearer commitment from the Government on the extent of the duties of a reformed NHS towards research. We need stronger, clearer language, and more detail as to what these duties will mean in practice. I hope the Minister is able to give us answers to the comprehensive range of questions raised by the noble Lord, Lord Willis.

As has been noted in this debate and at Second Reading, medical research in the UK-through our universities and hospitals, our health research charities and our medical science industries-has been a long-standing success story. Its importance to a world-class National Health Service is not in doubt. Embedding a culture of research and innovation in the new structures of the NHS is one of the key challenges to be met by this Bill, but we have some way to go yet before that is achieved.

Photo of Lord Rea Lord Rea Labour 7:00 pm, 9th November 2011

My Lords, I have a short question, on a subject mentioned by my noble friend Lord Turnberg and others. The National Institute for Health Research is now directly related to the Department of Health. Is it going to stay there, or is it going to be moved over, as was suggested, to the NHS Commissioning Board? Is the funding going to be assured? I do not think that we are quite sure about these things.

Photo of Baroness Morgan of Drefelin Baroness Morgan of Drefelin Crossbench

My Lords, I was delighted to lend my name in support of these amendments. We have had a tremendous debate, which is a sign that the Committee stage of the Bill is starting to get down to business and focus on some of the nitty-gritty, now that we have moved on from some of the more extremely high-level principles about whether or not we should see Clauses 1 and 4 in the Bill.

I very much support the opening remarks of the noble Lord, Lord Willis. He is chair of the Association of Medical Research Charities. I declare an interest myself as chief executive of a medical research charity, Breast Cancer Campaign. We are members of the noble Lord's association, and are very grateful to him for the leadership that he gives.

There are very few points I want to add to the debate, as it has already been very comprehensive. In thinking about this, I want to stress how incredibly important it is that we understand the role of research in the NHS as a driver for quality and improving outcomes for patients. Only today at the AMRC AGM, I heard someone describing research as one of the three pillars, alongside service delivery and education, and stressing the role that research plays in driving up quality and outcomes for patients.

We know that this is something that is not lost on the public. We have already heard what importance the public place on research delivery in the NHS-93 per cent of people asked by the AMRC in a MORI poll said that they wanted their local NHS to be encouraged or required to deliver research locally. That is an enormous vote of confidence in research in the NHS.

The public do not just say this in answer to surveys. They vote for research through their wallets, as we have already heard from a number of noble Lords. Medical research charities contribute £1 billion to research in this country. That is an enormous achievement.

The contribution that the NHS makes to medical research worldwide is very special indeed. It is quite simply a no-brainer that research has consistently delivered real progress for patients. I believe it is agreed that the NHS has a special and unique role to play, which is unparalleled in the world. We have already agreed around the House that in this country we punch above our weight, as the noble Lord, Lord Walton, said. As the noble Lord, Lord Turnberg, said very eloquently, we know that the UK generates over 10 per cent of the world's clinical science and health research outputs and has created nearly a quarter of the world's top 100 medicines. That is a great achievement. Now that the noble Lord, Lord Darzi, is back in his place, I can remind the House that in the earlier debate he commented on how life expectancy continues to rise, following on from the success of medical research.

As I said at Second Reading, there are many examples where the special nature of the NHS has contributed to progress. I mentioned particularly the million women study, supported by Cancer Research UK in partnership with the NHS, a collaboration that revealed the role of hormone replacement therapy in breast cancer risk-an enormous study, made possible by the NHS. I also talked about a project that my own charity is involved in. It is a real challenge. Noble Lords have already made many points about the difficulty in establishing informatics systems. We are working to establish a tissue bank, to look at breast cancer specifically, and to drive forward the vital role that genomics plays. This is also made possible by the NHS. There are many examples, as I have said.

I welcome this duty. It is the first time we have seen a duty of this nature on the Secretary of State, and it is a very important step forward, but if the duty is going to be meaningful we need to know-so I would like to hear from the Minister-what the Government will see as success in executing that duty. I want to understand what success will look like-what will be the benchmarks that the Secretary of State will use to know whether his duty has been executed successfully.

Will we continue to evaluate the contribution that NHS research makes to GDP? How will the NHS research duty play in to the research assessment exercise that is undertaken in higher education? Could that be used to show how effective partnerships work in the NHS, because it is often those partnerships between NHS trust and academic institutions which are so important? What could Monitor or the Care Quality Commission do to help us understand the contribution that research has made to improving outcomes in various settings? Will we have an impact rating for NHS foundation trusts relating to their promotion of R&D? Will we be considering the number of patients in clinical trials as a measure-that is something that many people are worried about at the moment? Should we be looking at the number of clinical fellows or clinical professors in surgery?

What will success look like for the Secretary of State? I have heard talk that a research tariff is being developed; that has been referred to in correspondence. I would be grateful if the noble Earl could explain whether it is and what the consultation process might be. There has been a suggestion that a diagram or an organigram might help us here when looking at how the funding streams might work. We had a meeting with Dame Sally Davies when that was on the agenda. We have been reassured that funding will work in the same way as in the past. I am not sure whether it can, so I should be grateful if the Minister could reassure us on how that would work and perhaps produce a diagram for us.

Photo of Baroness Emerton Baroness Emerton Crossbench

My Lords, I have appreciated all the contributions on the amendments on research. There is just one thing that I take issue with: the contribution of the noble Lord, Lord Ribeiro, who said that his profession was the Cinderella of research. Other professions would describe themselves as being Cinderellas in terms of research funding. Obviously, I speak for nursing and midwifery, but also for the other healthcare professions, which are all graduate professions and which are concerned to give evidence-based practice wherever they are in the NHS. Perhaps the noble Earl could re-emphasise that it will be multiprofessional research. All the contributions this evening have been on medicine and scientific research, but the other professions can contribute an enormous amount. Nursing is very reliant on charitable, voluntary funds for its research and has done some tremendous research exercises in clinical procedures, as have the other professions-midwives and physiotherapists. Will the noble Earl consider this being a multiprofessional research board?

Photo of Lord Darzi of Denham Lord Darzi of Denham Labour

My Lords, I add my support to Amendment 42. I declare an obvious conflict: I am a recipient of funding from the National Institute of Health Research; I am also a senior fellow in the NIHR.

We should all be very proud that huge investment has gone into research in the NHS. The reforms of the past decade have been significant. We have been used as the exemplar across the globe not just on funding but on the structure and the processes, driving research within the NHS.

I should like to cover not just the health gains but the economic gains of research. Whichever way we look at it, the life science industry is worth about 4.3 per cent of our GDP. That is a significant contribution. The life science industry employs between 170,000 and 180,000 people. We are still very attractive to the pharmaceutical companies, which come here because some of the best brains are coming out of our universities. We need to work on making the NHS as attractive as the university sector. That is why safeguarding of funding within the National Institute of Health Research is vital for that important mission if we are to contribute to future economic growth.

Many noble Lords have already mentioned one of the most exciting disruptive innovations around the corner: the concept of stratified, personalised medicine. The NHS in the UK is in a unique position to attract funding into that area. Having a single patient record, if we have the right informatics, the right genotype and phenotype, we can drive innovation in that very important field, which will completely transform not just healthcare but the way that we deliver healthcare in future.

To do that, we need not just to incentivise the NHS with funding but make it more attractive by driving through research. It is a well known fact that there is a very strong correlation between organisations that do research and the quality of healthcare that they provide. That is well established, and that is why it is extremely important to ensure, when the CommissioningBoard may be inundated with different challenges-a significant amount of effort is going into this under the leadership of Dame Sally Davies-that we maintain and protect research funding in these turbulent times as the NHS refashions itself.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench 7:15 pm, 9th November 2011

In intervening in this interesting debate, I shall be very brief. I simply want the Minister to explain where the levers will be in the commissioning decisions to make sure that the principle of research that is being embedded across all the professions happens, given the multiplicity of providers and, as the noble Lord, Lord Turnberg, clearly outlined, the relative paucity of research in primary care but an increased push for more people to be cared for in the community across all the disciplines involved. A simple example of that is the problem that we now have with antibiotic resistance. There is potential overprescribing, but much of that prescribing is going on in primary care in the management of relatively simple conditions. If those are not researched into, we miss a fantastically important opportunity.

Photo of Lord Kakkar Lord Kakkar Crossbench

My Lords, I support many of the amendments in the group. I do so as a biomedical research and clinical academic, therefore benefiting from many of the opportunities that the current systems for biomedical research in the National Health Service provide.

I start by congratulating Her Majesty's Government on having included for the Secretary of State for the first time in a health Bill responsibilities to promoting research. That is hugely important, because it allows us to secure what has been achieved to date in structures and funding going forward in the National Health Service.

There are, of course, anxieties, which we have heard in this important debate, which need to be addressed. Can the noble Earl provide clarification in three areas, notwithstanding the fact that the Bill already emphasises the responsibilities of the Secretary of State for Health? First, how is it is envisaged that the funding for biomedical research will be protected when that fund moves to the NHS Commissioning Board? Secondly, how will the clinical commissioning groups be responsible for promoting research in future, how will that be supervised by the NHS Commissioning Board, and will any form of instruction or performance measure be included in the supervision that the Commissioning Board provides for clinical commissioning groups?

Finally, how, within the proposed structure of the Commissioning Board, will there be encouragement and support for academic health science centres, as they currently exist, and in the future, potentially, academic health partnerships? They provide the opportunity both to drive forward opportunities for biomedical research to improve healthcare and the health gain for our population, and to drive forward the economic opportunities that attend the biomedical sciences industry in our country. However, they also drive forward opportunities for a broader population health gain through a focus on the tripartite mission of improved clinical care, education, training and research.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Home Affairs), Shadow Deputy Leader of the House of Lords, Shadow Spokesperson (Cabinet Office)

My Lords, this has been a very interesting debate, and I am very grateful to the noble Lord, Lord Willis, and other noble Lords who have spoken in it very persuasively about the importance of research.

At heart, there are three particular questions that we put to the noble Earl, Lord Howe. First, how is funding for research to be protected? Secondly, how are we to ensure that strong leadership will be given from the centre? The third is the question of levers. What levers are there in this system to ensure that research is given a prominent place?

First, there can be no doubt whatsoever, as the noble Lord, Lord Willis, said, of the direct link between research and the quality of patient care. That must be at the forefront of our consideration. Secondly, he is also right about public health. Research into public health, evidence and epidemiology is vital if we are to improve the overall health of people living in this country. Thirdly, we have the contribution that research makes to UK plc, and specifically the contribution of the pharmaceutical industry.

When I chaired the competitive taskforce with the industry some years ago, we found that out of the 100 most important branded medicines at the time, 30 had been developed in the UK. Although the UK share of global spend on pharmaceuticals was about 2 per cent, our R&D contribution, including that of the industry, was about 10 per cent. I suspect that those figures have slipped a little since that report, but there is no question that the pharmaceutical industry in particular makes a huge contribution to our economy. We cannot be complacent about that in the future.

On the question of leadership, I was fortunate to be present at the recent annual conference of the NHS Confederation. I take the point made by the noble Lord, Lord Mawhinney, that, "They would say that, wouldn't they", when it comes to this rather foolish idea that somehow if you just leave it to them everything will be all right, but I recall a speech made by Dame Sally Davies in which she talked about the importance of research. She argued that the NHS itself has to make a greater contribution to research. This was not about funding; this was about NHS organisations recognising that research was important. It was a brilliant speech. It is essential that we continue to have that kind of national leadership in research funding.

There is a big question about what exactly the duty of the Secretary of State will be with regard to research if we end up with a highly devolved structure in which the levers left to the Secretary of State will clearly be limited. It is clear that the day-to-day concerns of most people in the NHS are going to be diverted into a market-orientated culture, where, frankly, the kind of collaboration that research requires across NHS organisations may well be regarded as collusive behaviour by economic regulators and the competition authorities.

I speak with some experience of economic regulation. Ofgem was the last economic regulator with which I had regular dealings as Minister for Energy. What struck me was that regulators' concerns are much more about day-to-day issues than they are about the long-term viability of a particular industry. We found, with Ofgem, that we had to change the law to make sure that it had some regard to future customers rather than simply being concerned about the actual price of energy to the customers of today. If we have regulators whose main concern is about driving day-to-day competition, I wonder where issues of research come into play.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, the primary duty of Monitor, as the noble Lord will have observed, is to patients. That is its overriding duty.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Home Affairs), Shadow Deputy Leader of the House of Lords, Shadow Spokesperson (Cabinet Office)

Yes my Lords, but so was the overriding duty of Ofgem to the customer. The problem is how a regulator defines that responsibility. Since the Government are intent on this very foolish drive into competition, I believe that the risk is that the regulator will also be driven into thinking that that is its most important aim.

There are some real questions here, which I put to the noble Earl, about ensuring that there is sufficient concern, investment and leadership on the question of research. I would also ask the noble Earl how we protect and ring-fence the research budget. I ask him to think of the national Commissioning Board, faced with a hard winter, huge public concern and political pressure about funding, and the temptation to dip into the research budget. We all know that that happens. My noble friend Lord Warner and I were debating earlier who was responsible when there was real pressure on the training commissions. I thought it was my noble friend, actually, but we can continue to debate that.

Photo of Lord Warner Lord Warner Labour

My Lords, things went downhill when I left at the end of December 2006.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Home Affairs), Shadow Deputy Leader of the House of Lords, Shadow Spokesperson (Cabinet Office)

My Lords, with the greatest respect, I will not go into who left me the junior hospital doctors issue. He will recall that my first day as a Minister was actually the first day of Committee on the glorious Mental Health Bill, and that was a blessed memory, I must say.

My experience was that the health service let us down on training commissions, because at the time they were facing a financial difficulty and it was all too easy to cut those commissions. The result was that Ministers essentially took it upon themselves to put central controls back into the system. My concern is that if the NCB simply has research in its budgetary responsibility and there are severe pressures, it is just too easy to dip into it. The problem is also, as my noble friend Lord Warner said, that, as we know, sometimes research budgets take a little time to kick in, but once you do it you are funding for three, five, seven years. Again, in each financial year, an amount is probably available in the winter that had not been spent. The problem is that you will never get that resource back again.

The second point that I would like to put to the noble Earl is about clinical commissioning groups. How do we ensure that their commissioning decisions support research? My noble friend Lord Turnberg said that research is no cottage industry, but clinical commissioning groups are the epitome of a cottage industry. He also referred to the fact that GPs have little history of undertaking research and commitment to it. Yet we are handing them billions and billions of pounds, quite remarkably, on the basis of no evidence whatsoever that I can see that they are fitted to discharge that responsibility. I ask the noble Earl where we can have assurance that clinical commissioning groups will be prepared to invest in services where there is a strong research base.

The third challenge is to NHS trusts and NHS foundation trusts. The noble Lord, Lord Ribeiro, put his hand on it when he talked about the reduction in the number of clinical academic posts. I believe that NHS trusts have a great role to play in encouraging their clinicians and in encouraging joint posts with universities. Again, I worry that the focus on job plans and the productivity of clinicians will discourage research because the emphasis will be on patient throughput. How are we going to ensure that that does not happen?

I take the point made by the noble Lord, Lord Ribeiro, about surgeons' practical skills. What about simulation centres in training to help surgical teams to work together and the research base involved in that? What about nursing and AHP research? Also, what about clinical trials? There is a real risk of losing clinical trials to other countries. If the pharmaceutical industry feels that clinical trials are not encouraged in this country, there is a risk that it will take some of its R&D work abroad as well.

I listened with great interest to what the noble Lord, Lord Walton, said about the need to streamline the approval process. I welcome the Government's proposals and commitment to improve and streamline that process, and it is something that we on this side of the House very much support.

Above all, we need to deal with the question of implementing research. Earlier, we talked about besetting sins. It has long been a besetting sin that the NHS has been very slow to implement proven research, and I am very concerned about this. The pharmaceutical industry continually makes a point about the UK's slowness to take up new medicines. Although the PPRS puts a cap on profits, it allows the industry to set a price for each medicine, and the industry has always regarded this as a good situation in which to be because that price can then be set in other countries.

The noble Earl talked only two days ago about the proposed introduction of value-based pricing. Without going into the methodology, I should like to ask him whether, through such pricing, the industry is going to lose the flexibility to set prices. Is there not a risk that we will make the UK a less attractive place for the industry to develop R&D in the future?

That brings me to the Department of Health. Although it was there to sponsor the industry, there was always a risk that, because of its concern about NHS budgets, ultimately it would be much more concerned about holding down prices. In the great endeavour to ensure that this country continues to have a strong research base in the health sector, I should like an assurance from the Minister that, in its sponsorship of the pharmaceutical industry, the department will be as concerned to ensure that the industry is strong as it will be to hold down prices.

I know that this has been another long debate, but I think that nothing is more important in this country than health-based research. Tonight, our concern is not so much about the wording of the amendments as about hearing how the Government will ensure that we continue to prioritise research in the future.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 7:30 pm, 9th November 2011

My Lords, I agree that this has been an absolutely excellent debate and I have listened very carefully to all the contributions.

Clause 5 places a duty on the Secretary of State, for the first time, to have regard to the need to promote research within the health service. It also places equivalent duties on the Commissioning Board and clinical commissioning groups. The duty applies to research into matters relevant to the health service-I shall come on to that phrase later-and the use within the health service of evidence obtained from research.

I turn straight away to the amendments, beginning with Amendments 39 and 199ZA together, as they make the same changes to the research duties on the Secretary of State and clinical commissioning groups. Amendment 39, tabled by my noble friend Lord Willis and the noble Baroness, Lady Morgan, would require the Secretary of State to promote research within the health service and to promote the use of the evidence obtained from that research. The Bill as drafted requires the Secretary of State to have regard to the need to promote research in the health service. This means that the Secretary of State must bear in mind the importance of research when exercising any of his functions and consider how the exercise of those functions might in itself promote research or how it might influence the promotion of research by others. I have reflected on these two amendments and I can tell noble Lords that I sympathise with the arguments behind them. Of course, I fully recognise the importance of ensuring that research is promoted within the health service. Therefore, I now give a commitment, following this debate, to undertake a closer consideration of this duty.

Amendment 40, tabled by the noble Lords, Lord Warner and Lord Patel, requires the Secretary of State to have regard to the need to develop research findings for clinical application in the health service. I agree with the noble Lords that this emphasis is important. We need to ensure that, wherever possible, research outcomes are translated into clinical practice. This is how the health service moves forward. The noble Lord, Lord Walton, as so often, was completely right in all that he said on that subject. As the duty is currently drafted, the Secretary of State is already required to have regard to the need to promote the use of evidence obtained from research. Therefore, we believe that this amendment would duplicate the existing duty.

Amendment 40 also refers to the need to ensure that staff have the relevant training and support where new technologies are introduced. We have brought forward an amendment to introduce a duty on the Secretary of State to exercise his functions so as to secure an effective system for education and training within the health service. The word "effective" is there for a purpose. Similarly, the NHS constitution makes a public pledge that all NHS providers should provide all their staff with access to appropriate training for their jobs, together with line management support to succeed. Therefore, again, in my view this amendment is unnecessary.

It may also help to reassure noble Lords if I refer to our consultation document, An Information Revolution. In this, we state that information management and IT capability are essential if we are to achieve improved healthcare outcomes. Our forthcoming information strategy will recognise the importance of informatics skills within the health service, and I hope that this will reassure noble Lords-in particular, the noble Lord, Lord Warner-that we are fully aware of the need to ensure that staff are able to maximise the benefits that new technologies can offer.

I now turn to Amendment 41, also tabled by my noble friend Lord Willis and the noble Baroness, Lady Morgan. This amendment would place an additional requirement on the Secretary of State to promote research into public health issues. Again, I agree with the principle behind the amendment-it is indeed true that advances in public health are shaped by research and evidence, and the noble Lord, Lord Turnberg, gave us a number of examples. In fact, this amendment can be dealt with quite simply. The duty on the Secretary of State, the board and clinical commissioning groups to have regard to the need to promote research applies to "the health service". That phrase encompasses both the NHS and public health services, and therefore the duties already apply to public health.

There are other clauses in the Bill that focus specifically on research into health protection. Clause 8 lists research and other steps,

"for advancing knowledge and understanding", as examples of action that the Secretary of State may take under his wider duty in relation to protecting public health. Clause 14(13) expressly gives the Secretary of State, the NHS and local authorities the power to commission or assist research.

My noble friend Lord Willis asked me how the duty on the Secretary of State would be fulfilled in practice. It may be helpful if I briefly set out the work that is going on beyond the Bill to ensure that research is embedded in the new system. The department has recently published a document setting out initial proposals for the NHS Commissioning Board. Among other things, it emphasises that, to fulfil its purpose, the board should support,

"a culture which promotes research and innovation".

There is also a clear indication in the department's document, Developing Clinical Commissioning Groups: Towards Authorisation, that clinical commissioning groups will be expected to demonstrate how they will promote research. These documents can be found on the Department of Health's website. I should be very happy to expand on this in a letter to my noble friend and other Lords.

In this area the noble Baroness, Lady Finlay, asked what the levers for research would be, and that question was echoed by a number of other noble Lords. I will expand on this in writing, but there are a number of parallel levers across Government that will do this, ensuring that the UK's commercial and industrial landscape is, as the noble Lord, Lord Hunt, rightly emphasised, an attractive place to do research, and that we do not neglect any aspect of research-basic, translational and clinical-so it is about research across the piece. It is also about the pricing of medicines, about our skills base as a country and about encouraging the concept of clustering, linking universities and the NHS and industry. We have announced recently a large sum of money which will go towards biomedical research clusters and units. It is also about deregulation, streamlining research and creating the Health Research Authority to do that, the drivers in the NHS such as the tariff and, not least, holding bodies in the NHS-CCGs no less than others-accountable for the duties that are in this Bill. Accountability is the counterpart to the concept of autonomy.

I cannot say much to the noble Baroness, Lady Morgan, about the tariff. We do not envisage a separate tariff for research, but we will ensure that the systems and processes that the board and CCGs use for commissioning patient care ensure that research is supported and that treatment costs are funded by the NHS. This will specifically include a tariff. It is essential that the tariff for patient care incorporates the costs of patients who are taking part in research, and we will ensure that it does.

I turn to Amendment 42, which was tabled by the noble Lords, Lord Warner, Lord Patel, and my noble friend Lord Ribeiro. This amendment seeks to safeguard the funding of research by placing a requirement on the Secretary of State to ensure that there is adequate funding for research and the application of that research to the health service. The amendment also aims to ensure that clinical commissioning groups will fund the treatment of patients involved in research. I share the desire to protect research funding-as Minister for research, how could I not do so? My noble friend Lord Willis need have no fears about our intent in this area. The Government have signalled their clear and strong support for research by increasing the research budget of the Department of Health in real terms over the current spending review period.

I heard from many noble Lords the concern about the research responsibility for the NIHR transferring across to the NHS Commissioning Board and how the budget could be protected in that event. I do not know where this idea has come from, but it is not accurate. The budget for the National Institute for Health Research is centrally held within the Department of Health and will remain so. The budget for research commissioning will not transfer to the NHS Commissioning Board. Dame Sally Davies, the Chief Medical Officer, retains a responsibility for the National Institute for Health Research and for the budget that is allocated to it to commission research. I hope that that reassures my noble friend and the noble Lords, Lord Walton, Lord Warner, Lord Turnberg and Lord Rea, and all others who have expressed worries on that score.

With respect to the research that takes place within the health service, alongside the Secretary of State's duty to have regard to the need to promote research, Clause 14(13) already gives him the powers to commission research or assist any person conducting research, including by providing financial assistance. An equivalent duty and powers are conferred on the board and clinical commissioning groups. We therefore believe that there are robust arrangements for safeguarding the funding of research already in place.

Amendment 74, proposed by the noble Lord, Lord Patel, would add the promotion of research and acting on research evidence to the list of steps that local authorities may take when exercising their new functions in relation to health improvement. The importance and value of high-quality research and evidence to public health are clear and well understood. We agree entirely that local government should make evidence-based decisions and we expect that Public Health England, the new executive agency, will help them to do that. We also agree that local government should be able to undertake or support research of its own. While this is not listed in Clause 9, because that list was drawn from the current functions of the Health Protection Agency, it is included in Clause 14(13) of the Bill. This clause gives local authorities a specific power to conduct, commission or assist research that is connected to their functions as part of the comprehensive health service. The list in Clause 9 is not prescriptive. As a rule, it must be for local authorities themselves to decide how best to use their own resources as autonomous bodies. Therefore, including research in Clause 9 would not make it mandatory. For that reason, we believe that this amendment would not add anything to the existing provision in Clause 14 and it is therefore unnecessary.

Amendment 89E, tabled by the noble Lord, Lord Hunt, would remove the power of the NHS Commissioning Board, clinical commissioning groups and local authorities to conduct research in relation to their health service functions. It would leave intact the existing paragraph 13 of Schedule 1 to the NHS Act 2006, which confers the power to conduct or assist research solely on the Secretary of State. I am taking it now that the noble Lord did speak to that amendment. I confess to a measure of confusion over its intention. Currently, the Bill recognises that research and evidence-based care are needed throughout an effective health care system, a principle I would hope that all noble Lords would agree with-

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I am most grateful to the noble Lord. In that case I shall not dwell on it at great length.

Amendment 40A, tabled by the noble Lord, Lord Turnberg, and other noble Lords, would require the Secretary of State to have regard to the need to promote the use of information derived from patients for research purposes while taking full account of the confidentiality of information. I welcome the intent behind this amendment, but it is in fact unnecessary. We recognise the important role that patient data, if treated carefully and confidentially-and that I hope goes without saying-can play in improving the quality of health research. I spoke earlier about our consultation document AnInformation Revolution, in which we propose that the most important source of data is the patient's or the service user's care record generated at the point of care. Information in these records also provides much of the data needed for other secondary purposes: for commissioners, for managers, for care professionals and, importantly, for research. We are using the responses that we received to the consultation, together with the findings of the NHS Future Forum, to develop an information strategy for health and social care in England. This will highlight how increased transparency and greater access to information supports improvements in care and research. It is the major work stream. I can reassure the noble Lord that we value the use of patient information where confidentiality is appropriately protected as a source of research and that we are looking at ways to embed its use in our information strategy.

Photo of Lord Turnberg Lord Turnberg Labour

Can the noble Earl give us any idea of the timescale over which we might see something emerging from this? It has been on the agenda for a very long time and we really need to move on it.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I hope that I am not putting my neck on the block, but within a month the noble Lord should hear news that may cheer him on this front.

A great many noble Lords have asked me questions, some of which I have covered, but I suggest that in the interests of time it might be helpful if I followed up this debate in writing and in a way that will enable me to answer the questions in greater detail than I would now in any event.

Photo of Lord Warner Lord Warner Labour

My Lords, in doing that will the Minister clarify what "health service" means? As I read the Bill, it sometimes looks as though public health is not included in that definition. It would be helpful if the Minister could give us some clarity on that and point us in the direction of an authoritative definition.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I should be very glad to do so. The noble Lord may not be surprised to hear that, when I was being briefed for this Bill, I had to ask myself that very same question. The definition is there, but I think that it would be helpful if I set out the import of that phrase in its fullest sense.

I hope that I have said enough to encourage noble Lords not to press their amendments, but, in doing so, I reiterate my thanks to all noble Lords who have made such an excellent contribution to this debate.

Photo of Lord Willis of Knaresborough Lord Willis of Knaresborough Chair, Science and Technology: Sub-Committee I (Higher education in STEM subjects)

My Lords, I thank the Minister for, as ever, a very courteous and thoughtful response to many of the issues which have been raised, in particular his response to Amendment 39 and his undertaking to reconsider "have regard to the need to", which appears to be a little bit of clumsy draftsmanship that would be unworthy of the Minister himself.

The Minister raised a number of important issues, including that to which the noble Lord, Lord Warner, referred. We have now had a definition of "health service" which includes public health. That means that public health research could lie within some local authorities, because a significant amount of public health will be devolved to local authorities. While I was pleased to hear the Minister say today that those people moving from the National Health Service to local authorities for public health matters would retain National Health Service terms and conditions, the reality is that they will be working under a local authority aegis and that research would therefore be an issue for local authorities rather than Public Health England-or so I understand, but we will probe that later.

On protecting funding, I was particularly grateful for the way in which my noble friend the Minister responded to the idea of ring-fencing. He spoke not of ring-fencing, but said that there had been an increase in budget. It would have been good if he could have made that comment. However, he did say that NIHR would remain a stand-alone organisation. That was news to me; I thought that it was going to move into other organisations. Quite frankly, that is good news. It has a reputation which demonstrates that research is very important and we can track how it is used and when. I thank the Minister for that.

I apologise profusely to the noble Baroness, Lady Emerton, for indicating that "research" meant the work that is coming out of universities and being translated for use at the bedside. She was quite right to remind us that "research" for the purposes of this Bill was all research, and that what should underpin all public policy, in the NHS or anywhere else, is research which gives you evidence to inform policy decisions. I thank her for that rebuke.

Photo of Lord Warner Lord Warner Labour

I do not want to prolong this debate. I will read very carefully what the Minister said about protection of finance. We may want to come back to this issue to be reassured that all is well.

Photo of Lord Willis of Knaresborough Lord Willis of Knaresborough Chair, Science and Technology: Sub-Committee I (Higher education in STEM subjects)

I beg leave to withdraw the amendment.

Amendment 39 withdrawn.

Amendments 40 to 41 not moved.

Amendment 41A

Moved by Lord Willis of Knaresborough

41A: Clause 5, page 3, line 19, at end insert-

"( ) the proper conduct of research by establishing such structures and procedures as he deems necessary to prevent, detect and impose sanctions on research conduct"

Photo of Lord Willis of Knaresborough Lord Willis of Knaresborough Chair, Science and Technology: Sub-Committee I (Higher education in STEM subjects)

I shall be very brief. In simple terms, the Secretary of State now has a duty to promote research. Clearly, that research must have integrity, and this amendment is about protecting that integrity. I think that we all agree that medical research is crucial to the UK's healthcare system, the economy-as the noble Lord, Lord Darzi, made clear in our previous debate-and our standing as an international research community. I make it clear to the Committee that the claim that the incidence of malpractice is widespread is wrong-there is not widespread malpractice in health research or in any part of our research base-but it would also be wrong to say that we have a perfect system and there is not some malpractice.

While peer review is an extremely robust method for assessing the quality of the science and the research, it was never intended as a mechanism to detect fraud. There is an assumption when you peer-review a piece of research that the data are accurate and that what you are doing is looking at the methodology, the evidence and the conclusions to see whether they stand up to scrutiny. You do not simply go back and look at the whole of the data.

We know that there are a number of irregular goings-on at various levels of research, particularly at junior level, from ghost-writing and guest authorship to plagiarism and falsification of data. As science, particularly medical science, relies on trust, it is important that we have a robust system in place which guarantees research integrity as far as it is possible. Andrew Wakefield, who built the case against the use of the MMR vaccine, based his evidence on a very small sample, falsified the data and manipulated patient records. It is clear that we need a system that would prevent that happening again. The reality is that it took seven years before that research was fully retracted and, to this day, the level of MMR vaccine uptake remains below the 95 per cent that we would regard as sufficient to confer immunity on the population. In other words, that incident of malpractice continues to have an effect. Children are being affected as a result and mothers in particular are worried.

The House of Commons Science and Technology Select Committee recently looked at peer review in scientific publications and reported on 18 July. One of its recommendations was:

"Oversight of research integrity in the UK is in need of revision. The current situation is unsatisfactory. We are concerned that the UK does not seem to have an oversight body for research integrity that provides 'advice and support to research employers and assurance to research funders', across all disciplines".

Interestingly, the Government said in response:

"The Government agrees that action on assurance of research integrity is required".

They went on to say, quite rightly, that it was the responsibility of employers, whether they be universities, research laboratories or private organisations, to guarantee the integrity of their research. They said that they did not want there to be a new research integrity agency or an equivalent, but, instead, a "Research Integrity Concordat", which brought together universities and bodies involved with research and which the Government would oversee.

My reason for this amendment is to ask my noble friend the Minister what progress is being made to form a research integrity concordat. When do we actually expect that to be finalised? While there is evidence in Australia, Norway and the United States, where there are defined offices of research integrity, the Government have said that they do not want to go down that road; they actually want a concordat. For what it is worth, I support the Government on this; I think that that move is right. It is only right, however, if that concordat becomes a reality, so my real question to the Minister is when it is going to become a reality. When can he assure the House that we do not need to have a different organisation in order to ensure that the duty of research-which is now going to be imposed on the Secretary of State-does not blow up in his face at some future date? I beg to move.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench 8:00 pm, 9th November 2011

My Lords, I am glad that the noble Lord, Lord Willis, has raised this extremely important matter. Research misconduct is rare, but it happens. Several years ago, there were a number of quite cogent reports produced by Dr Frank Wells of the British Medical Association, Dr Stephen Lock, who was the editor of the British Medical Journal and his successor, Dr Richard Smith, which actually demonstrated that in a number of rare cases research results had been fabricated. This issue has been highlighted by a number of similar events in the United States and elsewhere. The universities, the research councils and a number of other bodies have looked at this matter and made a number of recommendations. I am not at all certain that this is the right place in this Bill for this issue to be raised, but the question needs further consideration by the Government-for instance, to decide whether this important issue should be in any way part of the remit of the proposed new medical research agency.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health), Shadow Spokesperson (Equalities and Women's Issues)

The noble Lord raised a very interesting and important point, but I do not intend to delay the House by expanding on it.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, Amendment 41A, tabled by my noble friend Lord Willis, will require the Secretary of State to set up a system to ensure that research is conducted properly and ethically and that there are sanctions in place in cases of misconduct. Let me say straight away that I am in agreement with the intention of my noble friend in tabling this amendment; the proper conduct of research is very important, just as proper conduct is critical in clinical practice. All my noble friend's comments on that theme were extremely pertinent.

Looking at the amendment as it is worded, I can assure my noble friend that there are already systems in place to ensure that research is conducted ethically. Research, as he knows, cannot proceed without ethics committee approval. I realise that this is a probing amendment, but equally, as it is worded, it overlooks an important element in the current system of accountability, because it would risk undermining the clear responsibility in research, as in clinical practice, that employers have for the conduct of their employees and that professional councils have in regulating their members. Both can impose sanctions on researchers if their conduct is found to be inappropriate. I do not see that it is the responsibility of the Secretary of State to impose sanctions on clinical professionals, and it should not be their responsibility to do so for researchers. In the future, the Health Research Authority will continue the good work of the National Research Ethics Service, working with others to prevent misconduct by ensuring that the ethics of research is independently reviewed by research ethics committees.

This evening, I am able to give a new commitment to my noble friend. I am happy to tell him that we intend to publish the draft clauses on research for pre-legislative scrutiny in the second Session of this Parliament. That scrutiny will enable my noble friend and other noble Lords to comment on the detail of our proposals for the Health Research Authority and, in turn, enable us to ensure that future legislation is fit for purpose. I hope my noble friend will welcome that pledge.

If I may, I will cover the question my noble friend asked me about the concordat in a letter to him following this debate. I hope I have reassured him that there are systems in place to ensure good conduct in research. Nevertheless, his points are well made and I shall reflect fully upon them. I can only say at the moment that the Health Research Authority intends to build on these systems. In the light of what I said, I hope my noble friend will feel able to withdraw his amendment.

Photo of Lord Willis of Knaresborough Lord Willis of Knaresborough Chair, Science and Technology: Sub-Committee I (Higher education in STEM subjects)

I am grateful to my noble friend the Minister for that response. In view of it, I beg leave to withdraw the amendment.

Amendment 41A withdrawn.

Amendment 42 not moved.

Clause 5 agreed.

Amendment 43

Moved by Earl Howe

43: After Clause 5, insert the following new Clause-

"The Secretary of State's duty as to education and training

After section 1D of the National Health Service Act 2006 insert-

"1E Duty as to education and training

(1) The Secretary of State must exercise the functions of the Secretary of State under any relevant enactment so as to secure that there is an effective system for the planning and delivery of education and training to persons who are employed, or who are considering becoming employed, in an activity which involves or is connected with the provision of services as part of the health service in England.

(2) In subsection (1), "relevant enactment" means section 63 of the Health Services and Public Health Act 1968 and any other enactment under which the Secretary of State has functions which could be exercised for the purpose of securing that there is such an effective system as is mentioned in that subsection.""

Amendment 43 agreed.

Amendment 44 not moved.

Amendment 45

Moved by Baroness Wheeler

45: After Clause 5, insert the following new Clause-

"The Secretary of State's duty as to national workforce structures

After section 1D of the National Health Service Act 2006, insert-

"1E Secretary of State's duty as to national workforce structures

The Secretary of State has a duty to maintain a national pay and bargaining system for healthcare staff, to cover those staff providing NHS services and services for the improvement of public health.""

Photo of Baroness Wheeler Baroness Wheeler Opposition Whip (Lords)

My Lords, I am pleased to move this important amendment, supported by my noble friends Lady Thornton and Lord Hunt. The amendment would provide some much-needed morale and security at a time of great upheaval for NHS staff. In turn, it would reassure patients that the morale of those treating or caring for them will not impact on the quality of care they receive. Let us just imagine how NHS staff must be feeling now, no matter how dedicated or determined they are to carry on providing the best care possible. There is the Nicholson challenge to implement £20 billion worth of savings, which they know will seriously impact on patient care, they are facing huge disruption to services and patient care as primary care trusts and strategic health authorities are abolished under the enormous upheaval of reorganisation, and there is massive uncertainty about the future bargaining arrangements for their pay and conditions.

The amendment calls on the Government to commit to the continuation of national determination of pay and national collective bargaining for terms and conditions for NHS staff under the reorganised NHS, leaving employers and trade unions nationally to agree what local flexibilities should operate. The Government have so far failed to acknowledge the need to retain national workforce structures for terms and conditions, pay and bargaining. The Bill prescribes nothing on the pay systems that clinical commissioning groups should adopt, giving them greater leeway to break away from the existing long-established and well-tested pay systems for NHS staff.

Agenda for Changeis the single, national pay system in operation for the NHS and applies directly to all staff, excluding doctors, dentists and some very senior managers. It is well established, much respected by employers and staff and delivers equality-proof pay and grading schemes. However, the Liberating the NHSWhite Paper threatened the viability of a stable, national collective agreement, potentially undermining the NHS pay review body, which makes recommendations on the remuneration of all staff paid under Agenda for Changeand employed in the NHS. The current Bill applies only to England, but the implications for national pay determination across the UK are significant.

We know that most staff do not work in the NHS to get rich, despite the constant, distorted picture in some parts of the media about the levels of public sector pay and pensions. Nurses' pay starts from £21,000 a year and healthcare assistants from as little as £14,000 a year. The average public service pension is around £7,800 a year, but the average pension for a woman working in the NHS is only around £3,500 a year. If staff do not work for the NHS to get rich, what do they value? Job security is no longer the public sector staple employment motivator that it was: 13,000 redundancies have resulted from the current reorganisation. A recent survey by the Royal College of Nursing showed that an estimated 15,000 nurses and healthcare assistants expect to be made redundant in the next 12 months. Staff are not able to value job security any longer, but they do value fairness. Agenda for Change has delivered that, as well as equal pay.

In the uncertain environment caused by the reforms, having some guarantee about access to a fair, national pay system would at least provide an element of security. If, in the future, foundation trusts, with the heavy financial pressures they will face, start to abandon established pay rates and conditions, we fear that this will lead to the rapid downward spiralling of pay for staff, which will be particularly hard in these economic times. Staff morale and motivation are already suffering, and local pay bargaining would make it harder for the NHS to recruit and retain the best available staff, so in turn affecting patient service. Undermining staff pay and moving to local pay bargaining would also have a detrimental impact on patients. We must have an equitable spread of doctors, nurses and other professionals across the country. If local pay bargaining leads to many health staff moving away from a particular area, we could see the quality of service reduced there or patients having to wait longer because vacancies have not been filled. Agenda for Change is generally considered across the NHS to be a vast improvement on the previous fragmented and complex arrangements. It is seen as providing a firm basis for taking forward important, substantive issues, particularly equal pay, new ways of working and workforce reprofiling.

The amendment also explicitly refers to public health staff, because this is one of the major concerns for the NHS public health workforce, who continue to operate in limbo, unsure of exactly who will be employing them and on what pay, terms and conditions. The Government have promised a detailed public health workforce strategy in the autumn to support effective transition to the new system. When is the strategy to be published and what will be the consultation arrangements for all stakeholders? All we know now is that the directors of public health will transfer to local authorities, but precious little else is known yet about the arrangements for the remaining public health workforce, a factor highlighted by the House of Commons Health Committee last week. The committee stressed that,

"uncertainty has inevitably been created by the transition to new structures; this is undermining morale and causing people with valuable skills to leave the profession. Uncertainty around staffing issues must be resolved as quickly as possible. It is also important that the public health specialty is fully integrated into the Government's forthcoming proposals for healthcare workforce planning, education and training".

The amendment would give the Government a chance to provide some much-needed solace for public health staff by committing that they should be covered by the same pay system as other health workers. It would also give hope and reassurance to all NHS staff about their future pay bargaining arrangements. I urge the Minister to respond positively.

Photo of Lord MacKenzie of Culkein Lord MacKenzie of Culkein Labour

My Lords, I rise to support Amendment 45 and to follow on from my noble friend Lady Wheeler. I have spent quite a lot of my working life negotiating pay and conditions for staff in the National Health Service. I sat on four NHS Whitley councils for a very long time-one of them for 21 years. As a nurse, I was privileged to lead negotiations on behalf of Britain's nurses and midwives for quite a few years as chairman of the staff side of the Nursing and Midwifery Staffs Negotiating Council. So I know a little about the subject of this amendment and the possible consequences of any breakdown in national pay and conditions of service for National Health Service staff.

We have had nationally agreed pay and conditions ever since the inception of the National Health Service, with occasional attempts to break this down, particularly in the late 1980s. The Government of the day thought better of it and backed away. The old Whitley system stood the National Health Service in good stead for many years, but it was far from perfect and there was not always peace and harmony. There were problems in some years, going back, for example, to 1972 for ancillary staff, 1974 particularly for nurses and 1982 for most staff groups. The most recent that lingers in my memory was the ambulance dispute, which I think was in 1990.

Not all staff unions in 1983 agreed that the Government should set up a pay review body for nurses and midwives and professions allied to medicine. However, it was in my view an entirely sensible move, which by and large took a lot of heat out of relations between management and staff organisations for these two groups of staff. Why was the pay review body the right solution? The review body was independent and the staff unions were forced to undertake very detailed research into their pay claims. We used to spend many months getting that evidence right. The management side and government put in evidence as well. The Office of Manpower Economics, which provides the secretariat to the review body to this day, also carried out its own research. The review body took oral evidence from all of the parties. I led that for a number of years on behalf of the staff side. The members of the review body-academics and professionals-put us through the hoops, and any half-baked evidence would have been very quickly exposed. There was no question of any staff side taking inflation, doubling it and-metaphorically at least-banging the table. That clearly would not work.

The pay review body provided, for the most part, fair uplifts in pay. Sometimes we were disappointed but often the real anger from nurses and professions allied to medicine was more often directed at Governments, who had a habit of staging pay awards-except of course in election years. Other pay groups were brought into the purview of the review body in 2004 following the very long and detailed work to bring in the new pay structure, Agenda for Change, to which my noble friend Lady Wheeler referred. In 2007, all the remaining groups of NHS staff except doctors and dentists were brought into the National Health Service review body. The plethora of NHS Whitley councils-I think there were 10 when I was involved-has now been reduced to one.

Staff unions, NHS employers and the Department of Health have invested very heavily in making Agenda for Change work. The structure is underwritten by comprehensive job evaluation, a knowledge and skills framework and the national pay scales. Particularly importantly, it is equality-proofed. It provides some built-in local freedoms for employers, one example being to allow for recruitment and retention payments. It is supported, as my noble friend Lady Wheeler said, by staff, employers and trade unions. The worry is that we have already seen some efforts by some foundation trusts to impose alterations to Agenda for Change outside of the agreed local freedoms. Instead of the relative harmony that has existed over many years now, we have had unnecessary local hotspots with the inevitable problems of distrust and effects on morale.

The pressures on National Health Service staff over the next few years are going to be enormous. The most important focus should be-must be-on improving quality and driving efficiencies. We do not need that focus upset by employers and unions doing battle over local pay and rations. The last thing we need is fragmented and inconsistent systems of pay and conditions of service. The ratcheting up or down-probably mostly down-would in my opinion lead to equal pay litigation issues if the equality-proofed Agenda for Change structure breaks down.

This amendment will ensure that clinical commissioning groups and foundation trusts are not able to break down the systems so painstakingly put together in the past few years. Let us not move away from that tried and tested system where staff unions and employers can put their energies into giving evidence to an independent pay review body rather than expend these energies on local bargaining, which could create disharmony, industrial disputes and issues of morale. I hope we hear from the Minister that we will continue to have national pay bargaining in the National Health Service.

Photo of Baroness Murphy Baroness Murphy Crossbench 8:15 pm, 9th November 2011

My Lords, by now it will be no surprise to the Opposition that I do not support this amendment. It seems to be an extraordinary pedalling-backwards amendment. I ought to remind colleagues that foundation trusts already have the ability to negotiate local terms and conditions of service, so at least two-thirds of mental health trusts and half of all acute trusts already have it. They have not used those freedoms for very sound reasons, but there will come a time when gradually they will want to do so. It seems extraordinary that we would seek to remove those freedoms. I say to those who are anxious about pushing pay downwards that that has not happened at all with consultant grades of pay, where freedoms have led to much greater flexibility and a real and genuine recognition of the rarity of some consultant specialties in some areas, so it is not a good idea to remove that pay bargaining and that flexibility locally.

I do not see the Agenda for Change as being successful. Yes, it was better than the Whitley Council, which had 250 different scales and you did not know where you were; it was pretty grim. However, Agenda for Change has not been implemented with the learning and skills framework alongside in any more than 50 per cent of trusts. It has not led to productivity gains. It led to an uplift of pay but did not actually deliver what employers wanted it to deliver.

In my view, a good employment framework for local organisations must take account of local economic circumstances, the social demographic mix and the skills available in the local communities. Therefore, it must give local employers greater flexibility, as part of the autonomy of those organisations, and the ability to move away gradually from the situation that we have at the moment of profound skill shortages of nurses in some areas and an oversupply of some skills in other areas. If we could be more sensitive to local circumstances, we would get better values and rewards for staff in the NHS. I therefore very much support the Government's approach to this and do not support this amendment.

Photo of Lord Rooker Lord Rooker Labour

My Lords, I intervene briefly in this debate. It also gives me the opportunity to apologise to the House. I removed Amendments 35 and 36 at 10 pm on Monday because I could not guarantee to be here at 3.30 pm today. I apologise if it caused confusion, but I could not be here today at that time.

On Amendment 45, I would like to know the Government's position, because the noble Baroness said that the Government maintain their position. In some ways, the temptation for fragmentation is enormous. I am not sure whether the NHS is still the largest employer in Europe. As a totality, I think it probably is. However, we are talking here about England-or are we? The issue of devolution is crucial. I served for 12 months as a direct rule Minister in Northern Ireland, and I came across problems there relating to people doing the same job here. Also, of course, moving around Whitehall, as the Minister probably discovered himself, you go into departments and meet people doing more or less exactly the same job on vastly different salaries. The temptation of fragmentation was accepted at the centre of government, and that has led to significant problems of mobility for people moving even around Whitehall.

I am no expert on the NHS-I only know it as a patient and a family member of patients-but as far as I am concerned, it is a team effort. It is a bit like the argument we had with the firefighters. You are sending people out on a team to do a job, and they are not going out on different rates of pay, different pensions and different contracts. The one way to keep it cohesive is to maintain national pay bargaining. It does not mean that one size fits all, but the fact is, as my noble friend who kicked this off said, the industrial relations implications are enormous, given the potential for disputes that nobody wants. A dispute is created because of a festering sore on something else. The facility is not there if you have a system of national pay bargaining for healthcare staff.

The amendment refers to,

"services for the improvement of public health".

Quite clearly, there will be transfers of public health staff who are working in local government and who are perhaps working to and with NHS rates of pay. That in itself will be a difficulty if people are going to work with colleagues in local government under a different scheme. While the Government take account of that, the temptation will be to level down to local government to get one size fits all at the local level. I do not think that that temptation that ought to be accepted.

As for the issue of regional break-up, there was an argument about this many years ago when there was an attempt to pay teachers more who were prepared to go and work in the inner cities. You can have a local premium, and you can do some local work where there are factors, but in the case of nursing staff, particularly the lower-paid, and their ability to move around the country for career opportunities and to move their family, they are working within one service. Everybody knows that it is the NHS-the "N" is still there-but they are faced with the issue that, for the same job in the next region or the next but one region, they may be paid up to 10 per cent less and their pension and terms and conditions may be different. That could cause enormous problems.

I only spoke in the mental health debate last week, but the overall theme of the Bill and the many allegations that have been sent to noble Lords, of which the Minister will be aware, are that this is a grand plan-not now, but in the end-to fragment and break up the National Health Service, a plot hatched in the 1980s by Members of the other House who are currently members of the Government. The introduction of market forces into both the provision of care and other providers, and the temptation then to break up national pay bargaining to fit the new regime, which is supposed to be patient-orientated, is an enormous pressure on the Government. Ministers will be told that this will make sense at the local level. It may be asking a lot for the Minister to give a definitive response to this tonight, but the issues of industrial relations and pay bargaining in the NHS have to be settled well before the passage of this Bill, if only because during the period of implementation we do not, as my noble friend said, want discord among the staff as they implement what will be, I accept, many positive changes in the Bill.

The other issue that has to be raised, because we are talking about services to patients, is the pay and bargaining within service providers as the issue gets broken up. There will be some debates about charities, the third sector and social enterprise involvement where industrial relations and pay bargaining may be affected. However, there are other issues relating to the private sector doing jobs using NHS staff. It offers mobility as teams move. People do not have one place of work but may move between two or three different establishments, one of which may be the NHS, in which they may be based. They are expected to perform as part of the team locally, providing the services to patients in the round. What happens to pay bargaining in those situations?

If we allow fragmentation at a local level, it would be wise for the Minister to say that the status quo will be maintained. I accept that the status quo has flexibility built in, as the noble Baroness said, but it is a flexibility that does not appear to have been used. This is a bit like the Scottish Government. They had the flexibility to put up income tax by 5 per cent, but it has never been done. This is the reality. You put in that flexibility but for various reasons there are barriers to actually using it. In this case, the evidence is that the flexibility has not been used except perhaps in extreme circumstances. I do not think that it would be a good idea if we went down this route. I think there is enough evidence to keep people working together as a team with a national perspective that allows job mobility and promotion without people being afraid of moving within the same service because of the pay and conditions. I do not think that it is a good idea, and I hope the Minister will be able to take a more positive approach to this issue, even if he can only state it in general terms.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, Amendment 45, tabled by the noble Baroness, Lady Wheeler, seeks to impose on the Secretary of State,

"a duty to maintain a national pay and bargaining system for healthcare staff, to cover those staff providing", both NHS and public health services. This would cover not only existing NHS organisations but any organisation providing services to the NHS. The amendment, as worded, goes against the Government's view that employers are best placed to determine the most appropriate pay and reward package to ensure that they recruit and retain the workforce that they need.

Our clear view is that it would be inappropriate to require independent and voluntary sector providers to adhere to NHS pay when NHS foundation trusts, as the noble Baroness, Lady Murphy, rightly pointed out, already have such freedoms. The Government believe that to deliver the best care for patients, this freedom should be extended to all NHS organisations. I also take the noble Baroness's point that while foundation trusts have the power to apply local terms and conditions for all staff, medical, clinical and administrative, very few trusts exercise those freedoms. There are around 400 trusts, and only one foundation trust-Southend-has departed from Agenda for Change, and the differences that it has negotiated are marginal.

Employers can continue to use national pay. I would just make it clear that nothing that I have said means that the Government see no role for national contracts and negotiating mechanisms. We believe that many providers will want to continue to use national contracts as a basis for their local terms and conditions. However, employers, not government, should be in the lead on negotiations on national contracts. Of course, employers who move away from national terms and conditions would need to ensure that any new system did not expose them to equal pay challenges by delivering a fair and objective pay system, as Agenda for Change has achieved nationally. We do not intend to abandon the national pay frameworks, and we will expect them to be maintained for those employers who want to continue to use them. We will discuss with the staff side and the employers in the sector the appropriate approach to the national pay frameworks.

The noble Lord, Lord MacKenzie of Culkein, spoke about the pay review bodies. The Government recognise that the review bodies bring an independent and expert view, valued by the Government and those representing public sector staff and employers. In the longer term, we will work with NHS employers and trade unions to explore appropriate arrangements for setting pay. He also highlighted the risks of local pay bargaining. The Agenda for Change pay system includes all the right checks and balances-for example, the national online job evaluation system-so employers locally can ensure equal pay for work of equal value, which is of course important. When employers decide to move away from national pay frameworks, they must of course continue their legal obligations under equalities legislation.

The noble Lord, Lord Rooker, spoke about the implications of pay devolution and enlarged on the theme begun by the noble Lord, Lord MacKenzie. I understand that the NHS Staff Council is engaged in constructive discussions with NHS trade unions about the challenges facing the NHS across the UK and the scale of the financial problems facing employers and their staff. NHS employers and trade unions recognise the contribution that national pay frameworks have made to the development of a modern and effective NHS and agree that it needs to be fit for purpose for employers, staff and patients in the short and longer term. Talks are continuing between the unions and employers; my understanding is that they want to work within national pay frameworks.

The noble Baroness, Lady Wheeler, asked specifically about the public health workforce strategy. We have been discussing with the NHS local authorities and others how the transition for public health can be managed most effectively for staff. We are working hard to get this right; we do not envisage applying a top-down approach to determining public health teams within local authorities. We will expect good employment law principles and practices to apply and any transfer that is a relevant transfer under the TUPE regulations will engage the TUPE principles. Additionally, the principles of the Cabinet Office statement of practice may apply.

I hope that, with those comments, noble Lords are reassured, although I cannot go as far as the amendment would invite me to go on imposing mandatory national arrangements across the piece. However, I hope that I have said enough to encourage the noble Lord to withdraw the amendment.

Photo of Lord Rooker Lord Rooker Labour 8:30 pm, 9th November 2011

For the public health directors, who will be the employer? Will it be the local authority? In the sense that you can pay a director of education or children's services market rates around local government, will that be the same for the directors of public health, so that their salaries vary around the country? It would be the beginnings of a new service, in that sense. Do we know the answer to that?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

They will be employed by local authorities. It is too soon to say to the noble Lord what the pay grade of those people will be, but clearly they will be very senior officers within the local authority. Yes, strictly speaking, if there is freedom to set pay locally, there could be some variations around the country, but I would envisage that the pay grade of directors of public health will gravitate towards a certain figure, whatever that may be.

Photo of Lord MacKenzie of Culkein Lord MacKenzie of Culkein Labour

The Minister spoke about the value of the pay review body being independent, but I was not clear whether he saw a future for that body. Could he clarify that first?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, we value the pay review bodies, and there are no plans to disturb them at the moment. I sought to indicate that we continue to look at how pay arrangements are best structured. The pay review bodies do an extremely valuable job at present, as they have done for many years.

Photo of Baroness Wheeler Baroness Wheeler Opposition Whip (Lords)

My Lords, I thank the Minister and other noble Lords who contributed to the debate, particularly my noble friend Lord MacKenzie for his reminder to us of the history of the establishment of the pay review bodies and the contribution that they have made, particularly to improving pay and industrial relations in the NHS.

I also thank my noble friend Lord Rooker for a number of comments that he made in support of the amendment, particularly the point that he made about operating the same job in a nearby locality for different pay and conditions, which would be likely to cause serious detriment to industrial relations. We are very concerned about that.

I deeply disagree with the noble Baroness, Lady Murphy. This is not a pedalling-back amendment. The foundation trusts, I would contend, have not implemented local pay bargaining because they know the implications for industrial relations and local employment rates and so on. Agenda for Change has introduced equal pay, as the Minister said, and provided a good framework for addressing issues of equal pay for equal value. It has certainly proved its worth.

I regret that the Minister is unable to offer any real comfort to those in the House who believe that honouring the long-standing pay and bargaining arrangements for NHS staff at national level is not only the fairest thing to do but the wisest course if we are to ensure that NHS staff morale does not plummet even further. It is an important issue and I give notice that I intend to raise this matter at a later stage. I beg leave to withdraw the amendment.

Amendment 45 withdrawn.

House resumed.