Committee (10th Day)

Health and Social Care Bill – in the House of Lords at 3:07 pm on 5 December 2011.

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Votes in this debate

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

Clause 27 : Appointment of directors of public health

Amendment 225

Moved by Lord Patel

225: Clause 27, page 55, line 33, leave out "acting jointly with" and insert "with the approval of"

Photo of Lord Patel Lord Patel Crossbench

My Lords, while the House settles down, I thought I might tell your Lordships what a hazardous journey I had here today. The temperature difference is only 12 degrees.

The amendments in this group relate mostly to issues concerning public health. It is to be commended that the Bill places a duty on the Secretary of State to take steps to protect the public from diseases and other dangers to health, putting public health at a high level of government responsibility and particularly that Public Health England, once established, will be accountable to the Secretary of State. I look forward to the public health outcomes framework. It is none the less disappointing that, while the Bill places a duty on the Secretary of State to pay regard to reducing inequalities in health, it does not do so for public health. None of my amendments will alter the thrust of the policy in the Bill; nor will they alter the structures for the delivery of public health locally or nationally. I hope that they will be seen as genuine attempts to improve the Bill and improve the chances of the delivery of the public health agenda. I am pleased that the amendments have such widespread support among noble Lords on all sides and I look forward to their contributions.

I will speak to Amendments 225, 226, 229 to 232, 233A, 234, 259 and 339. Amendment 225 deals with the appointment of directors of public health. Amendments 226, 229 and 231 allude to their training and qualifications. Amendment 228 applies to their accountability within the local authority and Amendment 230 concerns registration criteria. Amendment 234 applies to duties regarding the termination of employment of directors of public health and Amendment 259 concerns employment conditions. Amendment 339 deals with the regulation and registration of public health specialists.

As regards Amendments 228, 229, 230 and 231, the director of public health will be the strategic leader for public health in his or her local authority, providing expert public health advice and guidance across health protection, health improvement and health services. In order to provide effective strategic leadership, the director of public health must be able to influence all aspects of the work of the local authority in the wider determinants of health, such as housing, employment, access to services and education. He or she will also work with other organisations, including local health and well-being boards, HealthWatch England and clinical commissioning groups.

The director of public health must be an appropriately qualified and registered public health specialist. He or she must report directly to the accountable officer of the local authority, the chief executive. That is important because if the director of public health is not directly accountable to the chief executive but to some other person and, therefore, is subordinate, their authority will be diluted. The majority of directors of public health are now appointed jointly by the primary care trusts which employ them and local authorities to which they are seconded. Under the new system, all directors of public health will by law be jointly appointed by local authorities and the Secretary of State. That function will be undertaken by Public Health England and they will be located within and employed by local authorities.

As it currently stands, the Bill simply states that a local authority should "appoint an individual" without any specification of the required skills, expertise or stipulation of how these appointments should be carried out. A local authority could, for instance-indeed, there is some evidence that some are actively seeking to do so-tack the public health responsibilities onto, say, the duties of the director of adult social services or even the director of education. Most of them of course are wise and will not do that but it is possible.

Perhaps I may allude to some of the core competences that will be required of directors of public health, although this is not an exhaustive list. They will need to ensure the proper design, development, implementation and utilisation of the major information systems to underpin public health improvement and action for the population across disciplines and organisations. They will need to interpret and advise on highly complex epidemiological and statistical information about the health of populations to the local authority, the NHS and voluntary organisations, and to develop a strategy for reducing health inequalities. As executive directors, they will need to take a leadership role in specified areas with local communities and vulnerable hard-to-reach populations. They will have responsibility for dealing with infectious diseases and threats, including food and water-borne diseases. They will also have responsibility for preparing for emergencies, including pandemic influenza, and for safeguarding the health of the population in relation to communicable diseases, infection control and environmental health, including delivery of immunisation targets.

There are a lot of tasks and they are much more exhaustive than the list I have given the House. Therefore the person appointed as director of public health must have the appropriate qualifications and experience to carry out those tasks. The statutory requirement to have an appointments advisory committee that appoints directors of public health is therefore necessary. When appointing public health specialists, it provides a system which exists in the NHS now for all consultant appointments of monitoring applications for specialist public health posts. Through this system, candidates' qualifications, training and experience are scrutinised by experts in the field of public health, usually the UK Faculty of Public Health advisers, to ensure that only appropriately qualified and trained people are appointed. Therefore it is important that all directors of public health and consultants in public health are appointed through a statutory appointments committee.

I turn to Amendment 234. Directors of public health will not only have many tasks, but they will have other accountabilities apart from the local authority. While their primary accountability is to the local authority, they will also be accountable to the director of Public Health England and have regional or national responsibilities in the wider public health service and for health protection. Yet while any authority that wishes to dismiss a director of public health will be obliged under statute to consult the Secretary of State, the Secretary of State will not have a veto over any dismissal, although he will be approving the appointment of a director of public health. I believe therefore that it is essential that any local authority wishing to terminate the appointment of its director of public health must be required in statute to have the Secretary of State's approval and not merely to consult him or her.

In my view, the director of public health's ability to report independently on the health needs of their community and population is important and critically on how well or not these needs are being met. He or she may be compromised if there is no protection against being sacked at the request of powerful local influences. The need for the Secretary of State's approval is therefore necessary to reduce this risk. My amendment seeks to address this exceptional-I believe it will be exceptional-but nevertheless quite real possibility where the director of public health's ability both to define and implement a local health strategy comes into conflict with other strong local interests seeking to dilute the impact of this strategy and compromise the health of the local population.

Amendment 259 will ensure that as public health specialists move out of existing NHS structures into Public Health England and local authorities, they will be guaranteed equivalent national terms and conditions of service to those in the NHS. That is important to ensure continued workforce capacity in public health, cohesiveness and skills and that public health remains an attractive career path. Clarity over the terms and conditions of employment for public health specialists would provide some measure of assurance that the profession will continue to be developed as an attractive one on a par with other medical specialties. The move of public health away from the NHS could potentially make it a less attractive career choice, particularly for young clinicians. That is an important factor. There is a real risk that without national terms and conditions, at parity with existing NHS terms, the public health workforce will become fragmented. As we saw in a report published last week, morale at the moment among the public health workforce is very low because of uncertainties about their role and the employment situation in the future.

Amendment 339 deals with regulation and registration of public health specialists and directors of public health. As Professor Scally concluded in his Review of the Regulation of Public Health Professionals, a review commissioned by the Chief Medical Officer of England and which investigated whether statutory regulation was needed for individuals operating at consultant level in public health,

"public expectation is such that, without the introduction of mandatory regulation of public health consultants and specialists by statutory health professional regulatory bodies, confidence would be lacking in public health professionals engaged at a high level in public health policy, planning and actions".

Currently, we have a system whereby all medically qualified public health specialists working as consultants or directors of public health must by law be registered either with the General Medical Council or the General Dental Council if they are public health dentists. Specialists with a nursing or midwifery background are regulated through the Nursing and Midwifery Council. However, that is not the case with public health specialists from non-medical backgrounds, even though they will often carry identical responsibilities to their medically trained colleagues. A voluntary system of regulation, operated by the UK Public Health Register, is currently in place for those from backgrounds other than medicine. At the present time, in order to work at consultant or specialist level in public health in the NHS, a person must be on a specialist register such as that held by the GMC or the GDC. Non-medical specialists must be registered on the UK Public Health Register. With the move to local authorities of the majority of the public health workforce, the danger of a two-tier system of regulation or, worse still, no system of regulation could prevail. That is a risk.

Doctors trained as public health specialists have to undergo five years of training as specialist registrars and obtain a certificate of specialist training to be on the specialist register of the General Medical Council. Subsequently, they have to provide evidence of involvement in continuous professional development and be re-evaluated every five years. Similar mechanisms exist for dentists. The role of director of public health in a local authority carries a level of responsibility in relation to the health and well-being of the local population. It requires public confidence and credibility from other organisations. The person who holds such a post should be properly trained and qualified and be on a register. That would be appropriate.

The amendment would establish that all public health specialists not on medical or dental registers should be registered and that the Health Professions Council should establish such a register. I beg to move.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench

My Lords, I warmly support this clutch of amendments relating to the future of the public health service in the UK, so ably proposed by my noble friend Lord Patel. No doubt the Government have taken full account of the House of Commons Health Committee's detailed report on public health, 12th Report of Session 2010-12, which raises a number of crucially important issues.

There are three principal domains of public health: health protection, which addresses environmental threats to population health; health improvement, tackling health inequalities and lifestyle issues impacting on health and well-being; and healthcare public health, which applies public health expertise to the provision of healthcare services. It is a significant omission in the Bill that it does not include any statutory duty on local authorities to address health inequalities in discharging their public health functions. That is a serious omission in the Government's plans.

As my noble friend said, all directors of public health will by law be jointly appointed by local authorities and the Secretary of State, with the latter function being exercised through Public Health England, but they would be located within and employed by local authorities. Does this mean that directors of public health who hold medical and dental qualifications will, as at present, hold honorary consultant appointments, with all that that implies, as indeed my noble friend raised in his proposals? I agree entirely with his proposal that the appointment of such individuals should involve an advisory appointments committee accredited by the Faculty of Public Health, as is currently the case in respect of directors of public health within the NHS. Can the Minister confirm that that will be the case?

As my noble friend Lord Patel said, young doctors and dentists training for a career in public health undertake a programme of training for five years as specialist registrars. Who is going to employ them in the future? Will it be Public Health England? Local authorities do not understand what a registrar is, and for that reason it seems extremely difficult to consider that those people training for careers in public health will also fall under the ambit of the local authorities. Perhaps the Government can give us an assurance on that point. I agree with my noble friend Lord Patel that it is crucial that the director of public health be appointed at chief officer level, reporting directly to the council chief executive, and that any local authority wishing to terminate the appointment of its director of public health must be required by statute to have the Secretary of State's approval.

Another important issue is to recognise the fact that healthcare public health, the third domain, is a core part of the public health service. Its role is to bring public health skills and knowledge to bear on the commissioning of health services, helping to ensure their quality, safety, efficacy, effectiveness, value for money and accessibility. The Government's initial proposals were seen as downgrading the role of public health in the commissioning of healthcare services, but, happily, it has been clarified. The directors of public health and their teams will provide public health expertise, advice and analysis to commissioning groups, health and well-being boards, and the NHS Commissioning Board. This will be one of the mandated public health services that local authorities must commission or provide. However, this is not enough. Can the noble Earl give us an assurance that the local director of public health will be a member of the board of each clinical commissioning group? There should be a qualified public health professional on the NHS Commissioning Board; and the board should routinely take advice from qualified public health professionals when commissioning decisions are taken. We seek assurances from the Minister on that particular point.

Finally, I support very strongly the comments made by my noble friend Lord Patel about the regulation of public health specialists, including directors of public health who do not hold a medical or dental qualification. Those who are in possession of medical and dental qualifications are of course regulated by the General Medical Council and the General Dental Council. What about the specialists in public health who are not so qualified? Is it the Government's intention, as Professor Gabriel Scally has indicated, that these individuals should come under the Health Professions Council for their registration? In my opinion and that of many professionals, some form of formal registration rather than voluntary registration is very important and, in fact, absolutely essential. I support these amendments.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I would like to support these amendments generally from the point of view of the tremendous focus that comes on the local public health official when there is an outbreak of ill health-for example, E.coli-which gives people tremendous anxiety. They look for leadership to deal with it; they look to the local official, the local member of the public health team, to do that. The amendments proposed by the noble Lord, Lord Patel, have an important part to play in assuring that the people who are put in that position are adequate to deal with such a situation if it comes along. Fortunately, from time to time there is a quiet spell. Then, all of a sudden, something breaks out that causes tremendous anxiety in the local community. They like to feel that the person who is put into the front line to deal with it has a capacity to know what he is doing and to express himself in a way that enables the community to deal with the thing without excessive scaremongering-but, on the other hand, effectively.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative 3:30, 5 December 2011

I support a number of these amendments. Indeed, my name is harnessed to them. When the Minister wrote to us after Second Reading, he answered the noble Baronesses, Lady Eccles and Lady Gould, on the subject of the importance of the director of public health and their status. He said that the Government would expect them,

"to be of Chief Officer status with direct accountability to the Chief Executive for the delivery of local authority public health functions. We are currently considering the best approach to ensure that directors of public health have appropriate status".

How far has my noble friend got along that road and does he see any of these amendments, which so many of us support, as going some way to enhancing that status?

I agree with my noble and learned friend Lord Mackay of Clashfern. These people have to be extremely brave and courageous and should be confident enough to open any door. They need to poke their nose into all sorts of areas and issues on which the local authorities will not want them to do so. Their annual report should be challenging. But they must have a proper status and be supported so that they cannot be fired just because they are awkward, uncomfortable and difficult people. That is why I very much support the idea that the Secretary of State should be involved in this, because I think that these people are exceptional, or should be-and I am sure that many of them are at the moment. They are moving into a very different type of culture.

I have served in local government and I just know that in local government what is really most important is the idea of place. It is knowing your communities very well, the streets and the houses where people live-all sorts of intimate details about your voters. What really matters is that you get re-elected at the next election, so you are grounded in place. Directors of public health will be much more evidence-based, and they have to be analytical. So this is really a very different discipline that they will use to expose some of the difficulties in communities' health in that area. They need the confidence and some sort of security so that they can be very uncomfortable-so that they can be difficult and say things that nobody wants to hear. Their annual report should be free from pressures from local authorities and those who employ them.

These are very important amendments, and I hope that my noble friend will consider them seriously and see how in this very important area he can enhance the status, security and confidence of directors of public health.

Photo of Baroness Jolly Baroness Jolly Liberal Democrat

My Lords, I rise to underpin much of what has already been said, so I will say it very briefly. The appointment of a DPH to a local authority will be critical. Not only will he or she play a key role in something like an outbreak of E. coli, when that sort of expertise is looked up to and expected from the community. They will be absolutely pivotal in delivering and making health plans, both through the health and well-being board and working with the CCGs. There is no way that the DPH could be a shrinking violet; as my noble friend Lady Cumberlege has just said, they really have to be able to mix it and get in there, but what they do has to be totally evidence-based. So it is a really interesting balance for someone who has their hands on all the facts but is not necessarily an introverted individual. One key thing that they really have to have is the support of the chief executive of the local authority. Furthermore, they have to report to them and have exactly the same status as, say, the director of adult social services so that they have that level of authority when going out and talking to various people in the health and social care community. That will be absolutely critical if the localism and local decision-making built into this Bill is going to work.

I have attached my name to Amendments 228 and 229. The person described in the amendments really should be seen as a person of standing, so they should have director status and be responsible to the chief executive of the authority. I was a bit alarmed when talking to my own MP this weekend. He was saying that he had learnt from his conversations with the chief executive of the local authority that the authority was not at all minded to do this with the appointment. That would completely undermine any sort of position that the director might have. They have the key role and need to be a person of standing. Without them having such a position within the council, many of the plans will be totally undermined.

Photo of Lord Warner Lord Warner Labour

My Lords, I support the thrust of most of the amendments in this group and have added my name to Amendments 226, 259 and 339. As others have said, it is essential to have in the Bill a clear commitment from the Government, and indeed from Parliament, that three things are very clear when it comes to directors of public health. First, we have to make sure that they should be registered public health specialists, with appropriate qualifications and expertise. That seems to me a given if these people are to have standing in the local communities and, perhaps, even in a wider area. Secondly, the director should be accountable to the local authority's head of paid service and be able to report directly to the local authority itself, particularly when there is an area of great concern in that local community. One does not want people intervening between the director and local authorities' main committees when a serious incident is taking place locally.

Thirdly, for the reasons that everybody else has mentioned, we have to ensure that a director of public health cannot simply be fired on a whim because they are doing something which is uncomfortable or unpopular, or has brassed off a local interest of one kind or another. That is particularly critical when we see the difference of approach that the noble Baroness, Lady Cumberlege, put very well: between the evidence-based approach of a director of public health and the commitments that local authority members, quite reasonably, have to seek re-election from time to time. That is how the system works, but a different approach is likely to run through some local areas when something is uncomfortable for the local authority but is backed up by the evidence that the director of public health can put in the public arena.

Directors of public health need to be seen to be capable of doing the job and to be able to deliver bad news-as well they may have to. They should be able to expect to be supported and protected locally when they have to deliver uncomfortable news. Amendment 226 is part of that package of armour that we need to wrap around directors of public health. There may be better ways to do that in these amendments than in Amendment 226, but its purpose certainly ought to be in the Bill.

Amendment 259 is an important part of the protective armour that I have mentioned for directors of public health, in that it aims to ensure that they simply do not lose ground financially over time in their pay and conditions of service with NHS medical equivalents. I am not a supporter of creating situations where there are bidding wars between local authorities and the NHS. We have seen that with occupational therapists over the years, where one side decides that it can secure some advantage by upping the ante a bit for a specialist group when there is a degree of local competition for a sometimes scarce resource, so I am not in favour of doing that.

However, my experience-and I have worked six years in local government-is that where there are these bidding wars, usually the NHS specialist is further up the greasy pole in terms of pay and conditions of service, and the specialist at the local level is trying to catch up with what has happened. That is why Amendment 259 is important, in that it ensures that there is a catching-up process. Much more importantly, it tries to ensure that it is not necessary to have a catching-up process, because there is an agreed alignment between the pay of those specialists who are employed by the NHS and those who are employed by local authorities.

In speaking to Amendment 339, to which I have put my name, I should declare an interest, in that my daughter is a non-medical public health specialist, although I hasten to add that I have in no way discussed this with her, so she should not be held responsible for the views I am about to express. It is vital that public health specialists are brought within the purview of the Health Professions Council and that there is a separate register for non-medical public health specialists which comes under the purview of that council.

Increasingly, the behavioural aspects of successful public health policies and their implementation are absolutely critical. This is not an area where we should be relying only on personnel with medical or dental qualifications. If we are to have successful public health policies, it is vital that we have people with the kind of background where they can communicate, understand, and do research on the emerging areas of the behavioural sciences. I hope, therefore, that we can have a register which has public standing and is supervised by the Health Professions Council.

Before I sit down I would like to start this session with a mild chastisement of the Minister. I said at Second Reading that I had a benchmark for the Minister's flexibility in accepting amendments to this Bill. However, he has been uncharacteristically inflexible in responding to many of the noble Lords' concerns in their amendments. Of course, he has always been very polite; but we have not seen much evidence of the Government being willing to take away some of these issues and come back with amendments at a later stage. I would say to him that this set of amendments gives him a good chance to turn over a new leaf. They do not affect the Government's policies in this Bill. However, they strengthen the ability of the Government to deliver those policies in the way that they have strengthened the arrangements around the appointment, the pay and the safeguarding of the independence of the directors of public health. I do hope, therefore, that we will see a different type of Earl Howe appearing in relation to these particular amendments.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat

I, too, support this suite of amendments. I shall speak only briefly, not in favour of a reinvigorated Earl Howe but in support of Amendments 234 and 234A, which are to the same effect and concern the termination of the appointment of directors of public health.

The Bill provides for joint appointment of the directors of public health, by the local authority and the Secretary of State, and it is right that it does so. I entirely agree with the noble Lord, Lord Patel, that it is therefore essential that the Secretary of State should also have a crucial vetoing part to play in the termination of such an appointment. It is not only that it is logical and sensible that he should do so. It is also that it is more important upon termination that the Secretary of State has that power of intervention. It is important because the director of public health has to have a sense of independence and security. As my noble friend Lady Cumberlege and the noble Lord, Lord Warner, have pointed out, there is considerable potential for disagreement between the local authority and the director of public health. It is therefore crucial that, in the event of friction, the director of public health can act with confidence to disagree.

This is exactly the kind of decision in which it is the Secretary of State, having ultimate responsibility for the health service, who should have that role. The Secretary of State's role is therefore the best guarantee of the independence and the freedom of action that directors of public health ought to have.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, my name is to Amendment 339. The other amendments have been spoken to most eloquently, having been introduced fully by my noble friend Lord Patel. One additional point, and the reason for having these directors of public health on a register, is that the person appointed may be fit to do the job today but they need to be fit to do the job tomorrow as well. By having them on a register, issues of revalidation, continuing professional development and so on would be maintained, and a level playing field would be maintained in an upward direction.

We have heard today about infection, but the greatest threat to public health may well come not from infection but from issues such as cyberterrorism around our major utilities and the havoc that that could cause. These directors of public health will have an enormous amount on their shoulders, and they need to be linked into the national and international disaster planning groups. Some of those aspects of their work will be ill understood by those in local authorities, who may feel that such things are remote and unlikely to happen. In the event of a disaster, those skills will have to be drawn on immediately, and the directors of public health have to be prepared and able to take the leadership role.

I urge the Government to consider carefully any good reason why not to register directors of public health. I cannot see any reason not to register these people who are trained specialists. You have to have a really good reason not to, in the face of all the evidence that they should be registered.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Health)

My Lords, there is clearly a broad and deep consensus in the House that the general direction of the Government's proposals for public health is on the right lines. We welcome in particular the restoration to local government of many public health functions.

There are still some areas of potential difficulty, though, which may well account for the recently published survey of the Faculty of Public Health, which showed great concern among 1,000 members of the profession who responded to a survey. Some 71 per cent of them disagreed that the new system would create a safer and more effective response to emergencies, and we will be looking at the situation regarding emergencies in a subsequent group. Eighty-one per cent disagreed with the proposition that the proposals would reduce inequalities in access to health; 83 per cent disagreed that the new structures would reduce bureaucracy; and 79 per cent feared that they would lead to fragmentation. I do not necessarily concur with those views-I think they are too pessimistic-but they disclose a degree of concern that some of the amendments that we are now discussing would allay.

Underpinning some of those concerns is the issue that is not part of the Bill: funding. We cannot ignore the real concerns about that-they have been voiced before and no doubt they will be again as we continue to debate the Bill-but in particular there is concern that, whereas the department apparently estimates the cost of public health services at £4 billion, which presumably is to be used as the basis for ring-fencing the grant that would go to local government, the BMA's estimate is £5 billion. If that is right, it is a significant difference that would impact on local authorities. Of course, we are awaiting next year's revenue support grant settlement. In addition, there are concerns about how the health premium would operate and how it might disadvantage areas that suffer from significant social and economic disadvantage. They would find it harder to improve the health of their communities than other, better placed authorities and might, therefore, lose out. In looking at the Bill, particularly the provisions that relate to public health, these concerns must be borne in mind.

Having said that, it is clear that many of the amendments that have been spoken to this afternoon address very serious issues. While I do not necessarily accept the entire burden of the criticisms made by the members of the Faculty of Public Health, I am sure Ministers in this House would not describe those with such concerns in the terms that Simon Burns used in another place when he described critics of the Bill as "zombies". They are not zombies; they are dedicated public health professionals whose concerns have to be addressed. I am sure that the noble Earl and the noble Baroness would not descend to language of that kind.

The amendments that have been moved and spoken to by the noble Lord, Lord Patel, and supported by Members across the Committee, deal in particular with the position of directors within local government. They begin with the question of how they should be appointed in the first place. On appointments, Clause 27 refers to an authority,

"acting jointly with the Secretary of State".

This is a slightly curious formulation. I suppose it should not be detached from the later provisions about Public Health England. In the words of Mr Burstow, the Minister of State for Health, Public Health England is deemed to be the Secretary of State. For the purposes of this clause, it may be that that is what is envisaged: Public Health England, as the Secretary of State, would be involved jointly in the appointment.

I am not convinced that it is necessary for an appointment to be made jointly but I concur with the view of the noble Lord, Lord Patel, that a procedure is needed for the approval of the Secretary of State of such appointments, and for the approval of any dismissal. I may be risking my status as an honorary vice- president of the Local Government Association when I dissent from its views on these matters. It takes the view that a director of public health should be treated in exactly the same way as any other chief officer of an authority. Respectfully, I disagree profoundly with that; they are not in an analogous position. Their position is much more analogous to that of a head of paid service, the chief finance officer or the monitoring officer, who have separate roles because they are not simply departmental officers; they have a wider responsibility, which impinges on the roles of other officers and other departments. A director of adult services or a planning officer does not have the same relationship with his colleagues. He is on level terms, as it were, and would not necessarily be expected to take the kind of stance that a director of public health might have to take in relation to failures of other parts of the authority. It is therefore essential that the position and independence of the director are protected. Therefore, I strongly support amendments to that effect.

What I am not clear about is how the appointment should be couched in terms of responsibility. Certainly, I agree with Amendment 229, which suggests that the director should be able to report directly to the local authority. However, to say that the director should be responsible to the chief executive is too narrow a definition. Not all authorities may choose to have chief executives. Fortunately, under the Localism Act, we have been spared the notion that the position of chief executive could be combined with that of the leader of a council or an elected mayor. Councils are not required to have a chief executive; they are required to have a head of paid service. The appropriate mechanism is that promoted by Amendment 229. That should be the line of accountability and the directors should certainly be part of the authority's management team. They should have the status of a chief officer and the ability, if necessary, to report to the council. They ought also to be qualified.

The Opposition endorse entirely the proposals for a statutory registration system along the lines to which noble Lords have referred, not a voluntary system which I think is envisaged by the Bill. The statutory system should have external quality control, particularly of non-medical public health professionals. This would certainly strengthen the position and maintain the quality of the service. The noble Lord, Lord Warner, referred to comparable status with NHS professionals and made a significant point in that respect. This could, of course, place directors on a higher salary level than other officers within a local authority. That might create some difficulties and might also be something of a new burden. I think that that is the phrase we use in local government. Therefore, it perhaps ought to be reflected in the way that grant is distributed. Perhaps the Minister will undertake to have a look at this. Perhaps some portion of the salary should be specifically contributed to by the department in making its allocations. This would facilitate an acceptance of a differential within local government. However, Amendment 259 talks about making terms and conditions,

"no less favourable than those of persons in equivalent employment in the National Health Service".

I am bound to say that I am not entirely clear how to define that equivalence. That may need to be explored further. No doubt the Minister will want to look at that aspect.

I think that the noble Baroness, Lady Finlay, referred to what might be described as public health emergency situations. One of the difficulties to which we will have to return in the next group of amendments is the absence of a fully fledged regional structure under the new system. As I say, we will no doubt return to this. However, there is concern about resilience and about how matters that transcend local authority boundaries-and public health problems do transcend local authority boundaries in many instances-will be managed and how these can be addressed, in particular under the proposals around the Health Protection Agency and the current local pattern of provision. I agree strongly with the noble Lord, Lord Walton, about the desirability of the director of public health being a member of the commissioning groups and, indeed, of the national Commissioning Board. We have discussed this before. The noble Earl, Lord Howe, indicated that the boards should be relatively small. However, there seemed to be a possibility of ensuring that if a director was not a member of the board, one could at least be appointed as an adviser to the board and, presumably, if it is the national Commissioning Board, also to the clinical commissioning group at local level. That would certainly be helpful.

However, there remains the issue of the position of directors in relation to district councils. As other noble Lords have pointed out, the responsibilities relating to public health are not confined to principal authorities at county, metropolitan district or London borough levels. There are housing issues and other significant issues around food safety and the rest which are district council responsibilities. It is not clear how directors of public health would operate in two-tier areas where district councils have those responsibilities. A mechanism might have to be developed to ensure that directors are able, for example, to report directly to those authorities where the exercise of the district council responsibilities may not be sufficiently addressed to public health issues. I am not inviting the Minister to give a definite indication at this moment but I would hope that this matter can be taken away and looked at further.

It is clear that there is considerable consensus around the House on the direction of government policy and the need to make improvements along the lines of these amendments. The noble Lord, Lord Warner, invited the Minister to turn over a new leaf and asked for a different type of Earl Howe. For my part, I would be quite happy to settle for the noble Earl, Lord Howe, that we know and love from previous incarnations. I just hope that he is given scope by the Secretary of State to respond positively to this positive debate and to the positive suggestions that have emerged.

Photo of Baroness Northover Baroness Northover Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development) 4:00, 5 December 2011

My Lords, I think that, one way or another, I am going to disappoint: I am going to disappoint the noble Lord, Lord Beecham, that the response is not coming from my noble friend Lord Howe, whom he is so fond of, or-

Photo of Baroness Northover Baroness Northover Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development)

I am absolutely delighted.

In answer to the noble Lord, Lord Warner, it may be that the version of my noble friend Lord Howe that he is seeing now is slightly different from the one that he usually sees, but I am surprised at his comment about my noble friend having made little movement. The noble Lord will know-

Photo of Lord Warner Lord Warner Labour

I thank the noble Baroness for giving way. I encourage her to reflect on what she might experience in terms of surprise on Report if we do not see a little more flexibility.

Photo of Baroness Northover Baroness Northover Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development)

As a former Minister, the noble Lord, Lord Warner, will be familiar with how-much more familiar than I was when I came into this position-change is discussed and then moves forward. I can assure him that the Government are very much listening and discussing the issues that have come up in your Lordships' House. As he will know well, it is usually in Committee that noble Lords probe issues and flag up concerns, and usually on Report that shifts occur. I hope that the noble Lord understands that we are indeed listening. Perhaps noble Lords will bear in mind the fact that there has already been much discussion of issues such as ministerial accountability, education and training, research, HealthWatch England and patient involvement, among other issues. Public health is undoubtedly one such issue. I can assure him that that is the case. As the Bill moves along there will undoubtedly be open discussion. I have certainly seen that from the inside.

As noble Lords will know, we previously discussed the high-level provisions relating to the public health powers and duties of local authorities and those of the Secretary of State. We are now focusing on the process of local engagement whereby health improvement responsibilities will return to local authorities. When discussing Clauses 8 and 9 I briefly referred to the role of the director of public health, but I should like to take this opportunity to highlight the importance that the Government attach to the role of director of public health and local government within the new system.

The director of public health will be ideally placed to embed public health across the work of the local authority, acting corporately but exercising the appropriate professional autonomy where necessary, to advocate for the health of the local population. As the noble Lord, Lord Patel, put it, he or she indeed needs to be the strategic leader on public health in the local authority. Other noble Lords echoed that view. We understand that there are a number of concerns about the status of the director of public health but I hope that I can reassure noble Lords on the points they have raised. We are indeed seeking the kind of status that they referred to.

Amendments 228, 229, 232, 233 and 233A relate to the status of the director of public health. As my noble friend Lady Cumberlege noted, given the importance of their leadership position, we would expect a director of public health to be of chief officer status with direct accountability to the chief executive. We hear what noble Lords say about the importance of that.

We have progressed this important issue-the noble Baroness, Lady Cumberlege, wanted an update-and we expect to make a formal announcement in the new year about how we will ensure the senior status of the directors of public health. We are committed to addressing that further. I hope that noble Lords will be reassured by what I have said.

Amendments 229, 231, 233 and 233A relate in particular to the qualifications and experience of the director of public health. The director of public health will be jointly appointed by the Secretary of State, who will be able to ensure that only appropriately qualified individuals are appointed. The fact that the Secretary of State, in the shape of Public Health England, will play an active part in directors' appointments will help to bind the system together and help to ensure consistency of approach to the role without infringing unduly on local authorities' independence.

In the National Health Service, some standardisation is imposed by the NHS (Appointment of Consultants) Regulations. The joint appointments process for directors of public health would allow the Secretary of State and local authorities to agree similar standards for local government.

Amendment 225 would require the Secretary of State to agree the appointment. I can reassure the Lord, Lord Patel, that the joint appointment process would already involve the agreement and active participation of the Secretary of State. The local authority and the Secretary of State could not properly imply with their duties and conduct a fair appointment process unless the individual chosen was suitably qualified with appropriate professional expertise. The joint appointment gives the Secretary of State more involvement in the Bill as it stands than under the amendment, which would limit his role to approval.

Amendments 234 and 234A would require the local authority to obtain the agreement of the Secretary of State before dismissing a director of public health. Under new Section 27(2) of the 2006 Act, the director of public health is an employee of the local authority, although any local authority wishing to dismiss its director of public health would have to consult the Secretary of State. Directors of public health will also have the full protection of employment law. Given that their employment relationship is with the local authority, we believe that this provides an appropriate level of protection.

I thank the noble Lord, Lord Patel, for Amendment 236. The amendment would allow the Secretary of State to issue guidance to which local authorities must have regard in relation to the appointment and termination of the director of public health. My noble friend Lord Howe and I will commit to considering this further.

Amendment 339 inserts a new clause which would require the Health Professions Council to establish a register for currently unregulated public health specialists. This links to Amendments 229 and 230, which would require that all directors of public health are on a register. I share the desire to assure the quality of all public health specialists in a way that is robust and effective.

The consultation on Healthy Lives, Healthy People and the NHS Future Forum identified a number of options for assuring the decision-making of public health specialists, including assured voluntary registration and compulsory statutory regulation, and we have sought further evidence from the public health profession to demonstrate whether compulsory statutory regulation is needed. We want to assess this evidence carefully before making final proposals. I assure noble Lords that we are listening.

I also reassure noble Lords that if compulsory statutory regulation of all public health specialists is introduced, we would seek to ensure that the bodies responsible for regulation would be subject to oversight by the Council for Healthcare Regulatory Excellence, which is renamed the Professional Standards Authority for Health and Social Care in the Bill.

Amendment 259 would place in the Bill requirements in relation to the terms and conditions of public health staff working in Public Health England and local authorities. I reassure the noble Lord, Lord Patel, that employees who are compulsorily transferring with their current work function from the NHS to a local authority or Public Health England will-by virtue of either the Transfer of Undertakings (Protection of Employment) Regulations, TUPE, or a statutory transfer scheme under Clause 294, where the Cabinet Office statement of practice on staff transfers in the public sector, COSOP, applies-have their pay, terms and conditions protected.

The Government are currently working with stakeholders to develop a public health workforce strategy, and a formal consultation will be published in due course. We are now beginning the detailed work of developing a new set of terms and conditions for Public Health England and we have started work with trade union colleagues to negotiate a package on that.

The noble Lord, Lord Walton, asked about health inequalities. This is an issue that we covered when we talked previously about public health. I reiterate that we intend to encourage local authorities, through the conditions that we attach to their new funding, to consider the need to reduce inequalities when they discharge their public health functions. The noble Lord also asked whether the CCGs and the board will have duties to obtain appropriate advice. Again, this is an issue that has come up before. They will explicitly need to do that. He also asked whether they should be on these boards. We intend to require local authorities to have a core offer of public health advice to the NHS and we will publish more information about that shortly.

Coming back to the question of local authority terms and conditions of transfer, work is currently under way on a concordat, which will provide principles and standards relating to the transfer, selection and appointment processes affecting public health staff moving to local authorities. This is expected to be published shortly.

Various noble Lords made reference to emergencies. As the noble Lord, Lord Beecham, said, we will be talking about that when we come to a later group of amendments, so perhaps we can postpone consideration of that subject until then, when I can answer any questions that have come up.

In conclusion, I commend noble Lords for their great expertise in this area-expertise in public health and right across the domain, and also, as the noble Lord, Lord Beecham, showed, in local government. It is very important that this is put together effectively. Many have welcomed the move of public health to local authorities, and this should, as noble Lords have previously noted, present many very useful opportunities to put public health centre stage. We hear the concerns that noble Lords have flagged up as these changes take effect but I hope that they will note that we are taking back many of the issues for consideration. I see scepticism on the face of the noble Baroness, Lady Thornton, but I hope that noble Lords will have listened to what I have said in the key areas that they have flagged up. On that basis, I hope that the noble Lord will be prepared to withdraw his amendment and that noble Lords will continue their constructive engagement with the department in this area.

Photo of Lord Warner Lord Warner Labour

Can the noble Baroness write to us about central government approval of people who are employees of the local authority? There are three areas where I should certainly like to be a lot clearer. The first is what the position with medical officers for health was in the past. My memory is that they were approved by the then Health Secretary. The second is the position of directors of social services. In the past, as I recall, they used to be approved by central government and were employees of the local authority. The third is the current position of chief constables. As I recall, they certainly had to be approved by the Home Secretary and I think may technically-although I am not sure-be employees of the local authority. It would help us to understand the Government's position on this if we could have more clarity-certainly on those three examples.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Health)

Perhaps the Minister, if not today then subsequently, could address her mind to the significant issue that I raised about the positions of directors of public health and district councils. Her assumption, which is fair enough at the present stage of the Bill, is that to all intents and purposes Public Health England and the Secretary of State are one. It is a political version of the theological concept of consubstantiation. I understand that, but that assumes that Amendment 260, which calls for Public Health England to be a special health authority, will not be approved. If it were approved, what would the Government's position be on the question of joint appointments and consents that under the Bill at the moment would lie in the hands of the Secretary of State? At that point, Public Health England would not be the special health authority. I am not asking for an immediate answer, but if the amendment were to be approved-and I certainly hope it will be approved in due course-would it be Public Health England in those circumstances or would it be the separate Secretary of State's role to adjudicate on those matters?

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

I thought we were going to debate Amendment 260 later today and I would like to take part in that debate when we come to it in the groupings.

Photo of Baroness Northover Baroness Northover Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development)

I thank noble Lords for being so willing to receive letters about the areas that they are concerned about. I found myself retrieving what I learnt in my history degree, and I suppose this then becomes the Reformation. I will ensure that we write to noble Lords about these areas.

Photo of Lord Patel Lord Patel Crossbench

I thank the Minister for her detailed answer. I know that this is a complicated group of amendments, each one referring to different aspects of public health. As I said in my opening remarks, it is extremely important that we realise that if we want a strong, reliable, effective, qualified, properly trained and accountable public health workforce, we need to address their accountability, employment status, registration and regulation. I did not put these amendments down lightly. They in no way seek to change the policy or structures of the Bill; they merely seek to strengthen the role of public health directors and public health consultants.

I do not know whether the noble Baroness passed the Warner test, but I listened carefully and I know she said a couple of times that the Government were looking at it and will produce a plan in early January. We will look at that carefully and carefully read what she said. I am very willing to engage with her because the public health faculty out there has great concerns. It is not concerned because it wants to be difficult; it is concerned that it will be asked to deliver something while its hands are tied behind its back. It would much rather come out into the open, to be told its status and to have that status put into the Bill so that it can begin to do the work that it is being asked to do. On that basis, I beg leave to withdraw the amendment.

Amendment 225 withdrawn.

Amendment 225A had been withdrawn from the Marshalled List.

Amendment 226 not moved.

Amendment 227

Moved by Lord Patel

227: Clause 27, page 56, line 4, at end insert-

"( ) the exercise of the authority's functions in relation to the control of any outbreak of disease or other public health emergency"

Photo of Lord Patel Lord Patel Crossbench

In this group of amendments, Amendments 227 and 235 are particularly concerned with accountability in handling emergencies. It is essential that there is clarity about who, within the radius of local agencies involved, has the lead responsibility for managing the response in an emergency or an outbreak. I do not think the Bill makes that quite clear. There is a lot of ambiguity about it in the Bill, and my amendments merely seek clarification and to require it to be put into the Bill so that everybody is clear about who leads on it.

It is important to establish that at the local level this responsibility lies with the local authority and, on its behalf, with the director of public health. The director must have the experience, expertise and qualifications to make decisions about outbreaks and other health emergencies affecting the area. As we know, wrong decisions in the early stages of an outbreak-for example, failing to appreciate the seriousness of the situation, taking inadequate control measures or offering inappropriate advice-can quickly lead to a public health catastrophe. I will not go into the details of the E. coli outbreak, but it would be quite interesting to follow it. The Chinese pretty rapidly finally sequenced the E. coli that was affecting countries in Europe this summer, and that is a good case in point as to who takes the lead.

The Bill is unclear about the lines of responsibility or accountability for ensuring co-ordinated action. This lack of clarity about who is operationally responsible at the local level for ensuring that an effective response is put into place will result in delay and confusion. As the Bill currently stands, there is a great risk that emergencies, outbreaks and epidemic situations-for instance, the flu epidemic or recent outbreaks of E. coli- will not be properly managed or responded to and may quickly escalate and harm the health of the population.

The amendment makes it clear that the local authority will be required through regulations to ensure not only that plans are in place for responding to outbreaks or emergency situations but that an appropriate and effective response is made. Of course the local authority will not normally deliver the response itself; it will normally be provided by Public Health England, supported by the NHS and others in the local community, but the local authority will be responsible for ensuring that an effective, appropriate, integrated response is delivered. It will also then be able to hold Public Health England to account for the local services that it provides.

I inquired whether there had been any discussions between public health directors and Public Heath England about this, and I am encouraged that they met recently and that the relationship between the directors of public health and public health units-because Public Health England will have regional units-will be built on the fundamental assumption that the two arms of the public health system, the local authority through the director of public health and Public Health England, must work together and support each other to deliver an integrated service and to ensure that the population is effectively protected using all appropriate resources locally and nationally. Neither of them will duplicate the other's functions.

There are four complementary principles that will define the working relationships. The local authority and the director on its behalf must be, and must be seen to be, responsible for the health of the local population. This will ensure that all aspects of public health are delivered in a locally coherent way. Under the Bill, the Secretary of State has a duty to protect the health of the population, which he or she will discharge through Public Health England. This will ensure a clear line of sight to the front line and the integration and consistency of health protection services across the country from national to local.

A principle of subsidiarity needs to be put in place, which is that the responsibility for health protection will be kept as close to local communities as possible. Public Health England will employ in local units the specialist expertise that it would not be cost-effective to replicate in every local authority. For instance, the Health Protection Agency currently has 25 units across England and national centres. The local authority through the director of public health will provide leadership for the public health system locally and must be responsible for ensuring that the system is prepared and delivers an effective health protection service.

I understand that more detailed work will define the range and scope of the core services that Public Health England will provide to the local authority. I know that we will come to a discussion about public health, and I do not wish to engage in discussion about Public Health England or my Amendment 260 at this stage. I merely refer to this in relation to the local authority's responsibility for dealing with emergencies. I beg to move.

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

My Lords, I have a number of amendments in this group as well, in particular Amendments 238, 237B, 237C and 237D. It is, as always, a pleasure for me to follow the elegant moving by the noble Lord, Lord Patel, who speaks from the Cross Benches. He spoke in a very restrained way about the need to try to create a co-ordinated response to any emergency. I would like to pursue this a little further in my own amendments.

The first of the amendments that we put down supplements the proposal of the noble Lord, Lord Patel, that local authorities and the CCGs should,

"have regard to any document published by the Secretary of State".

On thinking about that, I assumed that any responsible clinical commissioning group certainly would have regard to a document from the Secretary of State. I thought that, in the event of an emergency, especially where a co-ordinated response among the CCGs was required in the way suggested by the noble Lord, Lord Patel, we would need a little more than simply to have regard to a document produced by the Department of Health. So, along with my colleague the noble Lord, Lord Marks, I put down Amendment 238, which requires rather more, as it requires consultation with the Secretary of State.

On further consideration, looking very closely at Clause 43, we were not sure that even that was quite enough. Clause 43 deals not just with local emergencies but with emergencies wherever they may come from. I must say to noble Lords that I am inclined to agree with the noble Lords, Lord Newton of Braintree and Lord Mawhinney, who in a debate last week specifically said that they felt that, in the event of an emergency, it would be very difficult indeed for the Secretary of State not to be brought into the response, notably if a co-ordinated response was required perhaps at regional or even at national level. When we thought about recent emergencies of this kind-for example, the danger of swine flu in the United States some 10 years ago and, more recently, the danger of avian flu, which was moving very rapidly through Asia, with outbreaks of avian flu being established within days in areas which had not at first been affected by it-it seemed more and more clear that it was impossible for the Secretary of State to divorce himself from responsibility for emergencies. As the noble Lord, Lord Newton of Braintree put it, the public will expect nothing less.

So we found ourselves back with our old friend in this Bill, namely the relationship of the Secretary of State with what are, in the NHS Acts of 2006 and 2009, direct responsibilities that rest eventually in Westminster and Whitehall, and specifically with the man or woman who is the Cabinet Secretary responsible for health. With the best will in the world, I cannot see how the Secretary of State can effectively remove himself from those responsibilities. I am therefore very worried about the early parts of Clause 43. In this Bill, there is a specific reference removing the Secretary of State from the title of new Section 252A of the NHS Act 2006 inserted by Clause 43. The new cross-heading refers directly to him, but the section heading immediately following removes him, leaving reference to the board and the CCGs. Noble Lords who look at Clause 43 will see exactly what I mean: the preliminary lines are followed by a different heading, in which the phrase "Secretary of State" is simply removed from the heading, leaving only,

"Role of the Board and clinical commissioning groups".

Constitutionally I consider this to be very unhelpful. It is quite central, above all in an emergency where that emergency is not a minor one but a major or national one, for the Secretary of State not to be able to step away from responsibility. I do not mean ultimate responsibility when there is a failure by the Clinical Commissioning Board or, for that matter, by Monitor, but at the point at which the emergency breaks out.

I plead with my noble friend Lord Howe, and beyond him to the Secretary of State, to reconsider whether it is wise to remove the Secretary of State from what one might call the front line of response to emergency. This really is an area where I think that the public will not expect to see that and would believe that the Minister with responsibility to the Cabinet and to Parliament would want to speak on behalf of the public concern on issues of serious emergencies. This group of amendments of course would once again put the Secretary of State not in micromanagement but in ultimate responsibility for dealing with a co-ordinated response to an emergency. I ask the noble Earl, Lord Howe, to consider whether this is not also something that should be looked at in the light of our broad discussions on what are and what are not the responsibility of the Secretary of State, and once again remind the Committee that we cannot escape from this major thread that runs through the entire Bill. Here is yet another example.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Health) 4:30, 5 December 2011

My Lords, again I have a great deal of sympathy with the amendment moved by the noble Lord, Lord Patel, and the amendments in the name of the noble Baroness, Lady Williams. It seems to me that there is the potential for confusion over the differing roles that arise in situations such as an outbreak of disease or other public emergencies. The Bill variously imposes duties on the director of public health, although not specifically on the local authority, to act in such cases, bearing in mind that the documents are to be issued by the Secretary of State. Quite what documents would be issued in an emergency is not clear.

Amendments 227 and 235 in the name of the noble Lord, Lord Patel, accord better with the situation which might arise. They clearly make the point of local authority involvement and do not simply rely on the provisions of Clauses 43 and 44, which confer duties on the board and clinical commissioning groups. Incidentally, the fact that such duties are imposed on clinical commissioning groups surely enhances the need for the director of public health to be a member of, or to be represented on, such groups. But that is a matter to which we will no doubt return when we come to the governance arrangements for clinical commissioning groups.

Clause 43 makes it the responsibility of the board to ensure that all providers designate an individual to be responsible for the relevant emergency. Again, it is not quite clear what is meant by providers in that context. The board is also required to secure that it and the clinical commissioning groups in the health service-but, specifically, not local authorities-are prepared for emergencies. There seems to be some fragmentation in the distribution of responsibilities for this situation. That matter is also reflected in the general position in relation to resilience and emergencies generally. At the moment, there is a strong regional structure and if there is a problem, the regional director of public health can intervene and can require steps to be taken. There is always the facility for someone to be directed to act in the case of an emergency; as it were, someone will always be on call. It is not clear that that will survive the new structures.

It is essential in these cases also to recognise the important role that the voluntary sector plays in a public emergency. The Red Cross and other organisations of course are very often the first on the scene. I know that the noble Baroness, Lady Emerton, will address this issue when she speaks to her amendment. In advance of her doing so, I want to indicate support for the involvement of that sector as a consultee in the question of appointing directors of public health but, more widely, for the contribution of that sector to be recognised.

This issue of fragmentation of responsibility and the lack of a regional structure, which will follow if the Bill is passed in its present form, is a matter that attracted the attention of the Health Select Committee. That committee's report indicated that there is a lack of confidence in the structures that would replace the regional structures under the provisions of the Bill:

"We are concerned at the lack of clear plans for Public Health England to be established at the regional level. The idea of "sub-national hubs", in some-as yet undefined-alignment with the sub-national structures of the NHS Commissioning Board and the Department for Communities and Local Government does not seem to us adequate".

Public Health England needs clear strategic and regional accountability, and although we are not yet debating Public Health England, nevertheless there is clearly in the mind of that committee-and I share that view-considerable doubt about whether the structure, with perhaps four sub-national hubs and a number of groupings around the Health Protection Agency when it is now combined with and taken into Public Health England, will in fact be sufficient. Although Clause 44 gives the Secretary of State powers of direction, the absence of regional arrangements clearly could, in the minds of that committee, create considerable difficulties. So there are issues which are partly reflected in the concerns of members of the Faculty of Public Health to which I referred in the debate on the previous amendments, and the role of the Health Protection Agency in the new structure will bear materially upon that issue.

I think the amendments moved by the noble Lord, Lord Patel, actually take us in the right direction. We need a stronger structure to cope with problems of disease, immunisation and particularly emergencies, and again I draw attention to the fact that local authorities that would be involved in emergencies are not necessarily the principal authorities with which a director of public health would be involved. Again I raise the issue of how district councils in shire county areas will be involved in those situations. Without necessarily seeking a response today, I hope that is a matter that the noble Baroness the Minister would take away and consider. I am afraid it is becoming a bit of a recurrent theme, but for that very reason it seems to me that we need to address it properly so that the entirety of the local government family is involved in preparing for and dealing with emergencies as they arise, given in particular that district health authorities have very significant responsibilities in some areas. The noble and learned Lord, Lord Mackay of Clashfern, referred to E. coli, and food safety is the function of district council authorities and clearly part of the agenda which has to be addressed when looking at public health as a whole.

I hope that on this occasion the Minister will be somewhat more sympathetic than she proved to be last time to the amendments that have been moved by the noble Lord.

Photo of Baroness Northover Baroness Northover Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development)

My Lords, we are always sympathetic to all sorts of amendments, and the fact that we take away amendments and consider them further should, I hope, reassure noble Lords-

Photo of Baroness Emerton Baroness Emerton Crossbench

I apologise to the Minister; I was waiting to speak to my Amendment 236ZA. The issue of voluntary sector involvement is important because the changes proposed in the Bill have significant relevance to it and in particular to the voluntary aid societies. The British Red Cross and St John Ambulance provide emergency response and are recognised respondents under the regulations of the Civil Contingencies Act. I declare an interest as a member of St John Ambulance for 66 years.

The history of the status of these two organisations goes back to the Geneva Convention. Because they have a specific responsibility for providing emergency services, there needs to be clarity about the lines of accountability within local authorities. Both organisations are recognised in the humanitarian field and for first aid and for looking after civil or military emergency situations. That is their responsibility. The auxiliary status is enshrined both in the royal charter for the Red Cross and in the Geneva Convention. The Women's Royal Voluntary Service used to be included, but it has withdrawn from voluntary aid society status. Nevertheless, all voluntary organisations are important in that they are present and they will need to know how to be organised under these new arrangements. They want to be assured that they will be commissioned, as they are now under the Civil Contingencies Act. Prior to this Bill, they were commissioned by the PCTs through local authorities and these changes have significance for them in how they will be managed and how the chains of communication will work.

The community-based presence of both organisations means that they are involved in vital emergency responses. They are first-responders and deal with civil emergencies. They hold, for example, a large number of ambulances with four-wheel drive. Indeed, the London Ambulance Service says that it cannot possibly cope in an emergency without the backup of the volunteer ambulances, particularly in bad weather. I speak to this amendment because voluntary organisations need to be involved and need clarification of their communication with local authorities.

Photo of Lord Ribeiro Lord Ribeiro Conservative

My Lords, I seek clarification because the noble Baroness, Lady Emerton, has just referred to a whole series of different emergencies. The noble Baroness, Lady Williams, referred earlier to Clause 43 and the question of emergencies. I am confused about what we mean by emergencies and, under the emergency powers, the relevant types of emergency that we are dealing with.

Clause 43 states that,

"'a relevant emergency', in relation to the Board or a clinical commissioning group, means any emergency which might affect the Board or the group".

We then talk about the emergencies that might occur when there is a national disaster. I take noble Lords' minds back to the bombings on 7/7 in 2005. That was a major national emergency that was managed by COBRA-an organisation that involves the Prime Minister, the Secretary of State and the Chief Medical Officer. All of them would be involved in that situation. We also referred to the E. coli epidemic earlier on and I take noble Lords back to the Asian flu and swine flu epidemics. The person who fronted that was not the Secretary of State but the Chief Medical Officer. He was the face of that particular epidemic. I think we need some clarification of what we mean by emergencies, because I, for one, am somewhat confused.

Photo of Baroness Northover Baroness Northover Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development) 4:45, 5 December 2011

My Lords, these amendments address the response to emergencies. We agree entirely that dealing quickly, decisively and in a co-ordinated way with sudden threats to public health must be a priority for the new system. We believe that the establishment of the position of director of public health within local authorities will strengthen considerably their capacity to respond to emergencies. However, the overall response will depend on the precise nature of the threat, as my noble friend Lord Ribeiro has indicated, and it is very likely to involve the NHS and other agencies, such as Public Health England, as well as local authorities. Therefore we want to allow for local flexibility in deciding who is best qualified to lead the response to a particular incident. Nevertheless, we must also ensure, when incidents occur, that all the responders are prepared and fully understand the parts that they play. We agree that the duty for local authorities, which we intend to prescribe in regulations, must be strong enough to ensure that the right arrangements are in place, not just a document that describes those arrangements.

We believe that the Bill already provides for the kind of coverage that is required. Clause 27 sets out a number of responsibilities for directors of public health and is already clear that these include the local authorities' functions in planning for and dealing with public health emergencies. This, we think, fully matches the intention behind Amendment 227.

We agree with the spirit of the noble Lord's Amendment 235. Clause 15 gives the Secretary of State the power to specify in regulations certain steps that local authorities must take under their new public health duties. The regulations will be subject to the affirmative procedure in Parliament, but I can assure the noble Lord that we expect that the steps the Secretary of State prescribes will include ensuring that robust and agreed local plans are in place for dealing with threats to public health, even if they are not full-blown emergencies.

Amendment 236ZA, tabled by the noble Baroness, Lady Emerton, and other noble Lords, recognises the invaluable role that the voluntary aid societies, such as St John Ambulance, can play in dealing with emergencies. We certainly have no difference with the noble Lords on that, and hope-and expect-that local authorities will involve St John Ambulance and other agencies, such as the British Red Cross, when they ensure that plans are in place for tackling threats to health. We will consider how to address this issue in the regulations that we intend to make. On that basis, I hope the noble Baroness will be willing to withdraw her amendment.

I come now to the amendments in the name of my noble friend Lady Williams of Crosby. My noble friend Earl Howe said that at this point I should simply concede because they were in the Bill anyway, but I will address the substance of her amendments. She seeks to enhance the readiness for emergencies by conferring additional duties on the Secretary of State. I assure noble Lords that the Secretary of State already has the clear duty to protect health not only by virtue of Clauses 8 and 44 but under the Civil Contingencies Act 2004. Both the NHS Commissioning Board and the Secretary of State will be category 1 responders. As such, they will have a duty to assess, plan and respond before and during an emergency. This is made clear in Schedule 7 of the Bill. There might have been a slight misunderstanding over this.

The words at the start of Clause 43 that will replace the current cross-heading preceding Section 253 of the 2006 NHS Act that reads simply "Emergency powers", are:

"Emergencies: role of the Secretary of State, the Board and clinical commissioning groups".

New Section 252A then deals with the role of the board and CCGs, and Section 253 deals with the Secretary of State. We are not removing the Secretary of State's role. The Secretary of State retains his role, exercising his powers as indicated in Section 2 of the 2006 Act and under the Public Health (Control of Disease) Act 1984, as well as his duties under the Civil Contingencies Act 2004. I hope that my noble friend will be reassured in this regard.

Amendment 238, tabled by my noble friend Lord Marks, would require the NHS Commissioning Board to consult a Secretary of State before it takes steps to facilitate a response to an emergency that requires co-operation between different parts of the health system. These are operational decisions that are often taken at a local level where speed is very important. For example, hospital operations in one part of the country may need to be suspended because blood supplies are needed elsewhere. The amendment could inadvertently introduce additional delays into the decision-making process in a response to emergencies.

The clauses as currently written allow the health service to respond to emergencies directly and effectively and give the Secretary of State the power to intervene. We will consider what noble Lords have said but, in the mean time, I hope that they will not press their amendments.

The noble Lord, Lord Ribeiro, asked for a definition of emergency. I am assured that emergency has its ordinary meaning. I will write to him with the full definition rather than take noble Lords' time. On the basis of what I have said, I hope that the noble Lord will be willing not to press his amendment.

Photo of Baroness Emerton Baroness Emerton Crossbench

I thank the Minister and look forward to seeing the regulations.

Photo of Lord Patel Lord Patel Crossbench

My Lords, I thank noble Lords who took part in this debate. As I said in my opening remarks, the amendment seeks to clarify the responsibilities of the local authority in situations that arise as an emergency, either locally or nationally, and within that the role of the public health director. I realise that the Bill says that the Secretary of State, through Public Health England, will be involved, but there is still a lack of clarity in the Bill. Apart from saying that local authorities will produce documents about their preparedness to deal with an emergency, it does not say who will take charge. Further clarification may be required, and the Minister might undertake to look at the amendments again to see whether there is some need to clarify this in the Bill.

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

I thank the Minister. I will spend many happy hours working my way through every possible legal complexity and number of different Bills. I am grateful for her explanation.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench

Before the Minister writes to the noble Lord, Lord Ribeiro, with a definition of emergency, could she clarify whether we are talking in this Bill about medical emergencies, such as serious epidemics, or whether we are also talking about terrorist attacks, floods and natural disasters, all of which may require the deployment of medical resources? It is important that that should be clarified.

Photo of Baroness Northover Baroness Northover Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development)

My Lords, I will write to noble Lords if it is not that wide a definition, but my assumption is that it is the wider definition that needs to be covered.

As a brief response to the noble Lord, Lord Patel, I can say that much of this will be in regulations. I know that the previous Government had problems when they said that they would put something in regulations. The House would say that it wanted to know while it passed a Bill exactly what it would be, but a distinction needs to be drawn between the kind of things that you want in the Bill, where there needs to be an architecture and structure that gives flexibility, and the kind of precision and more detailed explanation that you have in regulations. The noble Lord will be familiar with that. If we can take anything further and outline what sort of things might be in the regulations, as the previous Government also sought to do, I am sure that we will.

Photo of Lord Patel Lord Patel Crossbench

I beg leave to withdraw the amendment.

Amendment 227 withdrawn.

Amendments 228 to 234A not moved.

Clause 28 : Exercise of public health functions of local authorities

Amendments 235 to 236ZA not moved.

Clause 28 agreed.

Clause 29 agreed.

Clause 30 : Abolition of Strategic Health Authorities

Amendment 236A

Moved by Lord Hunt of Kings Heath

236A: Clause 30, page 58, line 11, at end insert-

"(3) This section comes into force on a date to be specified by order by the Secretary of State.

(4) The time specified in subsection (3) must be after such time as the Secretary of State is satisfied that all duties and functions of Strategic Health Authorities are being fulfilled by another body."

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, these amendments are grouped around the structure of the National Health Service and certainly serve to illustrate the turbulence that the Government have brought to the service. Essentially, the Government have torn up the current structure by its roots and are now piecing together a much more complex and potentially bureaucratic edifice. It still remains a complete mystery why the Government did not build on what was there. On day one, they could have ordered primary care trusts to divest themselves of any service provision responsibility, and could certainly have given them a kick up the backside to get a move on with GP commissioning. The noble Earl reminded me last week that the previous Government was keen to encourage GPs to have more involvement there. Instead of that incremental, organic approach, we have seen primary care trusts dismembered, with many experts on commissioning-good people-thrown out of the system at a time when the NHS should be solely focused on the financial and quality challenge it undoubtedly faces.

In its place, listening to the Government's original proposals, one might have expected a rather more streamlined system. Instead, we see a convoluted and rather Heath Robinson-type system, where the capacity for delay and obfuscation seems endless. Of course, the Government's building blocks are clinical commissioning groups. At first, I believe that the intention was for GPs to sit round in small groups commissioning healthcare for their patients. However, reality has dawned; the GPs are being corralled into much larger clinical commissioning groups, where the necessary demands of corporate governance mean that individual GPs are likely to be very far removed from the actual decisions made on commissioning. Because decisions are to be made in GPs' names, however, they will be expected to defend those commissioning decisions-at some potential cost, I suggest, to the doctor-patient relationship. It would be interesting to know how many clinical commissioning groups the noble Earl considers are now likely to be created. I do not know whether he is able to confirm that. Could he compare that to the number of primary care trusts which, formally at least, are still in existence?

The new structure does not stop there, as we have health and well-being boards. This side of the Committee has no problem at all with the involvement of local authorities in health service matters and I particularly welcome the leadership role that they are to be given in public health, albeit with the caveats that we have heard during the previous two debates-and, I am sure, will hear in future debates as well. Yet no one should be in any doubt that health and well-being boards bring the potential for delays and lack of clarity, particularly over commissioning decisions.

The Government are also establishing clinical senates. I welcome clinical oversight at a regional level, but there can be no denying that this is another layer in what is emerging as a pretty complex picture. It is also unclear what levers clinical senates will have over clinical commissioning decisions. What happens if they consider that the combined impact of clinical commissioning group decisions might damage the integrity of a regional health system? For instance, there might not be sufficient cover in terms of comprehensive provision, or care networks could be undermined. What can these senates do in such cases?

The health service has lost a lot of its commissioning expertise. It looks as though commissioning groups will have to buy in commissioning support, mainly from the private sector. The Minister will be aware of the BMA's concerns on that matter. I understand that at the moment PCT clusters are forming commissioning support units and that from 2016 CCGs will be encouraged to commission from those units, which are in turn being encouraged to form social enterprises and partnerships with the private sector. The concern of the BMA is that this undermines the key aim of entrusting GPs to lead on commissioning. It looks increasingly likely that these clinical commissioning groups will have a small core of people concerned with clinical aspects of commissioning and a very large hinterland which deals with transactional and large-scale commissioning decisions.

Of course, there is to be another layer as well. It has become known in our debates that the NHS Commissioning Board is to establish local field offices, as I think they are being called. I am not surprised at that. We know that clinical commissioning groups are not to hold the contracts of GPs, presumably because of the potential for conflict of interest. That means that the national body, the NHS Commissioning Board, will have to get involved in the nitty-gritty of dealing with thousands of GPs, because it will hold the contracts of every GP in England. It will also involve the NHS Commissioning Board in the allocation of patients; where patients cannot find a GP, the current rules ensure that patients are allocated to GPs. That will have to go on in the future. As far as I can see, that too falls to the NHS Commissioning Board.

There is then the performance management of primary medical services, which will not fall to clinical commissioning groups because, again, of potential conflict of interest; that will fall to the NHS Commissioning Board. Sitting in its headquarters in Leeds, it is hardly likely that the board can do without some form of local branch structure. Indeed, with the demise of the SHAs, the uncertainties of clinical senates and the-quite understandable-likely very local focus of many clinical commissioning groups and health and well-being boards, there will be a glaring lack of strategic leadership across a local health economy.

Given the financial challenge which I think all of us in your Lordships' house accept as being huge, and given the need for a pretty radical reconfiguration of acute services-this came from our debate two weeks ago- there will need to be some kind of strategic leadership at the local level. I suspect that it will be the local field offices of the NHS Commissioning Board which will have to provide that leadership.

However, if that is to be the case, surely those local field offices ought to be accountable in some way to the local community? I have no doubt that the Minister will say that the field offices will be accountable; they will be accountable to the NHS Commissioning Board. I do not want to reopen this, as the noble Baroness, Lady Williams, was putting yet more into the pot of our debates on Clause 1. We have argued for many weeks now about the accountability of the NHS Commissioning Board. However, I am sure that most noble Lords would agree that the Minister has made it clear that the Secretary of State is going to be pretty hands-off as far as the NHS Commissioning Board is concerned. The mandate will reflect the key objectives which the Secretary of State wishes to have delivered by the board. However, my argument is that these field offices are actually going to be hugely influential at local level, rather as the SHAs have been over a number of years. If that is the case, why should they not be proper public statutory bodies, properly accountable for what they do? My Amendment 236A has to be seen alongside Amendment 236AA, where I set out in fairly brief form how a local NHS commissioning board could be established as a statutory body.

If one thinks of the original proposition for the governance and looks at the current architecture, we see a very complex picture in which public accountability is likely to be lessened. We have seen that clinical commissioning groups are already being corralled into large units that may well be very remote from individual GPs and their practices. They are being forced to use the private sector support organisations, which will also be supporting other clinical commissioning groups. Their room for manoeuvre will be hedged in by the health and well-being boards and the clinical senates, and they will be overseen closely by the local branches of the NHS Commissioning Board. To me, that is a pretty incoherent picture. How relevant does the Minister really think that is to the real issues facing the NHS-safety, quality, efficiency and the effective reorganisation and reconfiguration of acute services? No wonder that in a recent briefing the NHS Confederation said:

"Our biggest concern following the ... changes", which had been made after the NHS Future Forum had reported,

"is the risk of paralysis in commissioners' decision-making just when the NHS needs to be radical. The proposed NHS structure is much more complex than the present system. This has the potential to cause confusion and duplication".

Amen to that. I beg to move.

Photo of Lord Rea Lord Rea Labour

My Lords, I oppose Clause 31 which concerns the abolition of primary care trusts. My noble friend has talked about the strategic health authorities and, although not in detail, about the problem of getting rid of PCTs. This is intended to give the Minister an opportunity to give us some information about the implementation of this rather stark clause. For example, what about the actual handover of responsibility from PCTs to CCGs? Will all staff of PCTs be made redundant, thus giving rise to considerable redundancy costs? How many and which staff will be retained and transferred? Will those transferred continue their employment without interruption or will they have to reapply for their new post, which in fact is likely to involve the same or very similar work because the provider trusts providing the healthcare will be the same under the CCGs as they are now? Perhaps my noble friend Lord Hunt will amplify this. He has already said a considerable amount about the abolition of the strategic health authorities. Although the work of PCTs has been criticised, it has been improving all the time over the past nine years and much valuable experience in commissioning has been gained. It would seem logical to transfer as much of it as possible to avoid the expense of bringing in outside advisers and consultants or to make sure that such expense is minimised as far as possible.

Very relevant to the commissioning role of PCTs is a document that was published by the Department of Health just last month, Developing Commissioning Support. It includes former PCT staff among those who will be given a role in providing this support. There are many people in PCTs who have considerable expertise. The report's emphasis is on a business model in which outside organisations, including the independent sector, play a major role. Can the noble Earl tell us how this will be monitored and how transparent the contracting and subsequent work of these outside organisations will be? On the whole, how long will their contracts be for, and will it be possible to terminate them when necessary?

Expressing a view very sympathetic to mine is a quotation that I have found from a speech that was made five years ago in your Lordships' House regarding private sector commissioning. It reads:

"I want to sound a note of warning. I am worried that if that really is the way that we are going, it could represent a very serious wrong turning, not least in the context of the future development of effective practice-based commissioning".

This was five years ago, when practice-based commissioning was the order of the day. The speech went on:

"One has to question whether the ethos and values of a private sector organisation will make it fit for purpose as a commissioner. PCTs have public service values and they are accountable. Private commissioners are differently motivated and they are not in the same sense accountable to the public. The way in which private companies operate is too often hidden by considerations of commercial confidentiality, and it is questionable whether they will be susceptible to judicial review. If the Government want to go down the road of private sector commissioning, we need, at the very least, an open debate about it and about what it will mean for the NHS and for patients".-[Hansard, 3/11/06; col. 581.]

That exactly expresses my views. It will be interesting to know what the noble Earl thinks of it because they are his very own words, spoken when he was winding up for the Opposition in November 2006 on an Unstarred Question that I asked about the role of the private sector in the National Health Service.

Photo of Lord Mawhinney Lord Mawhinney Conservative 5:15, 5 December 2011

My Lords, last Wednesday we spent some considerable time talking about the merits of clustering. I start by making it clear that Amendment 256A, which is in my name and that of my noble friend Lord Newton of Braintree, is not about the merits of clustering. It does not reopen the debate that we had last Wednesday. It is about the instigation and management of clusters.

I make one further preliminary point: I have learnt from my 30-plus years in this building that Governments are always happier when they are talking about issues in the abstract. When they are confronted by issues in the specific, life gets more difficult. I see former Ministers smiling and nodding in agreement. I wish to talk about the specific. I want to talk about Cambridgeshire and, in particular, Peterborough. If that seems strange, I am Lord Mawhinney of Peterborough and I have the single honour, as a former Member of Parliament, of being a freeman of the city. I think that my commitment to the area is well established.

I start with the words that my noble friend Lord Howe used in summing up last Wednesday. He said:

"My noble friend Lord Newton spoke about the clustering of PCTs. Clusters bring together PCTs to prepare for and support the transition to clinical commissioning. Until PCT abolition in April 2013, they continue to exercise their functions and remain statutorily responsible for their functions until abolition".-[Hansard, 30/11/11; col. 302.]

Although clusters do not appear in the Bill at all, it seems to me perfectly legitimate to speak about them and table amendments on them given what my noble friend has said. The House officials tell me that an amendment at this stage is the only legitimate way to introduce a debate about clusters. PCTs are statutory, no debate; clusters are not, no debate, yet in practice PCTs have been removed, abolished, taken down, or whatever phraseology noble Lords wish to use, to be replaced by clustering. This is made easier by the fact that non-executive directors of PCTs are not employees.

When I learnt that the Peterborough PCT was to be abolished-as it was put to me-I took the advice of my noble friend Lord Howe and went to that bit of the statutory system which determines what happens in Peterborough, and I had an hour-and-a-half coffee break with Sir Neil McKay, the chief executive of the East of England SHA. I very much appreciate the information that he gave me although I could have done without the patronising tone. I put to him that it would be helpful if he could explain to me how the SHA had allowed the PCT to run up debts of £20 million. He said that he had no idea about that, he was not much minded to find out and nobody would take any responsibility. I asked Sir Neil whether he could explain to me how the hospital-it is a PFI hospital-had debts in too many tens of millions of pounds, over half of which were structural to the PFI. He said that they were not very enthusiastic about the PFI but they did not do anything to stop it. I inquired why the SHA, through the PCT, was trying to reduce funding to the hospital given its dire circumstances, but he declined to answer. I asked him why, as of a few weeks ago, the PCT had no contract with the hospital for this financial year and why it had no contract with the local authority, because Peterborough has integrated primary care and social services, but he had no answer. Indeed, he made some accusations in my hearing about officials at the city council which I have kept to myself because to have aired them would have made a bad situation even worse.

I therefore hope that my noble friend will understand that when we are encouraged to talk to the administrative and technocratic arm of the NHS, I for one am underwhelmed. None of this comes as a surprise to my noble friend because he very generously-I say that with deep sincerity-gave me and my noble friend Lord Newton of Braintree an hour of his time to discuss these very issues. I put to him again the fact that the Peterborough PCT and the Cambridge PCT have disappeared and there is a cluster. The facade is that the PCTs are still the legal entities and they exist. I will not comment about Cambridge, but I will comment about Peterborough. The chairman and all the non-executives have gone because they received letters asking, "Would you like to apply to be on the cluster? By the way, there are six of you but only three slots, so three of you will go-one of the two chairmen, and three from Cambridge. If you would like to apply, here is an application form. Please complete it and send it in together with a letter of resignation from the PCT". I do not know how that went down in other parts of the country but I can tell my noble friend that it did not go down well in Peterborough.

We have a situation where a cluster allegedly makes decisions but does not have any legal authority to do so. In Peterborough's case, the cluster refers such decisions to a PCT that statutorily exists but in practice does not. I have to say to my noble friend that I took careful note of his chastisement last week of our mutual and noble friend Lord Newton of Braintree for using extravagant language. I have pulled back, because I was going to tell your Lordships what I thought about this arrangement but I am unwilling to be chastised for extravagant language.

What has happened is that public servants who worked for primary care trusts were intimidated and bullied into getting out of the way so that a system which does not have a legal basis could proceed. In case noble Lords think that I am exaggerating, perhaps I may read to them a Parliamentary Question that I tabled a little time ago. I asked,

"whether a strategic health authority director has any legal powers to prevent a serving primary care trust board member who refuses a request to resign from the primary care trust from being offered any further public appointments during the next two years; and, if so," what those powers are. My noble friend replied:

"Strategic health authority (SHA) directors have no powers to prevent a serving primary care trust (PCT) non-executive director from being offered any further public appointments during the next two years. However, the Secretary of State has powers under the PCT (Membership, Procedure and Administrative Arrangements) Regulations 2000, which he has delegated to the Appointments Commission, to remove a non-executive from a PCT if the commission is of the opinion that the non-executive's continued appointment"- notwithstanding their contract-

"is: not conducive to the good management of a PCT; or not in the interests of the health service. If the commission decides to exercise these powers then the non-executive concerned would be disqualified for appointment to a non-executive role in a PCT ... or any National Health Service trust ... for a period of two years or such period as may be specified by the commission when terminating the appointment".-[Hansard, 27/10/11; cols. WA 185-86.]

It is no wonder that good upstanding community people feel intimidated and bullied into giving up the service that they have been making, because they are being threatened with two years' exclusion by the NHS, acting on behalf of the Secretary of State.

Last Friday, to my surprise, I opened a letter that had been sent earlier in the week, which stated:

"In conversation with Earl Howe I understand you have raised some concerns in Peterborough with regard to the management of clustering PCTs".

The sender would have known that not only from his conversations with my noble friend but from my conversation with his East of England chief executive.

"I would welcome the opportunity to arrange a meeting with you to discuss your concerns", signed Sir David Nicholson.

I have been in public service for more than 30 years and the only people I have ever refused to talk to have been the IRA, who were killing people; otherwise, I will talk to anybody. I will write back to Sir David telling him that I saw the letter only on Friday and that I am happy to meet him, although I am not sure exactly what will be achieved. However, I have been to the Minister and am now being offered the opportunity to talk to the chief technocrat. There are other democracies where the democratic practitioners are so weak that technocrats have to come in to do the job, but this is not one of those countries. I see my noble friend laughing but I say very gently that this ought not to be one of those countries.

This issue goes to the heart of the concerns that a number of us have relayed on a few occasions. I apologise to the Committee for taking so long but I needed to set the scene because this is the only debate that there has been on the setting up and management of clusters. I very much hope that my noble friend will take away these thoughts and continue to give them further consideration. In front of all the Members of this Committee I pay tribute to him by saying that when earlier he said to me and to my noble friend that he would give these matters consideration, I believed him. This is but an encouragement to him to take the issues at hand seriously and to produce a better and more defensible system, and one that is less liable to judicial review than the one that we have at the moment.

So far as concerns the rest of this group, I hope that the opposition Front Bench will not press to a Division their opposition to clauses, because I think that there is still a lot to be resolved in this area before we start casting votes. They know my views on Clause 31. I fear that Clause 30 may be heading in a similar direction. However, now is not the time to divide the Committee; now is the time for the Committee to encourage the Minister to take seriously the concerns being expressed.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I have one amendment in this group and have added my name in opposition to Clause 31 standing part of the Bill. At face value, these are very different but they are grouped because of the radical changes that are occurring.

In relation to Clause 31, I want to address where clinical commissioning groups are different from PCTs and what might be lost in the process, and that is why I have put my name to opposing the clause. These organisations appear to be emerging with a hybrid responsibility. On 2 November, in response to a question about whether clinical commissioning groups are just like PCTs and asked for a yes or no answer, the Minister replied:

"In terms of population responsibility, the responsibilities are very similar. CCGs are responsible for patients on the registered lists of their constituent practices as well as having specific area-based responsibilities ... linked to their unique geographic coverage".

Of course, the difficulty here is that clinical commissioning group areas are indeterminate and their responsibilities are not comprehensive, whereas at the moment PCTs, however much they appear to be failing, as they are in some areas, have in statute a range of clear responsibilities.

Clinical commissioning groups will not be formed on the basis of responsibility for all residents within a contiguous geographical area. As was pointed out on 2 November, it will be possible,

"for individuals within that area to be registered with a GP practice which is a member of a different CCG. It would therefore be the responsibility of that other CCG".-[Hansard, 2/11/11; cols. 1270-71.]

We have debated the problem for people with difficult conditions. I know that the clinical commissioning groups' responsibilities will be for emergency care for people within their area; that seems to be one of their limits, but they do not go much further than that. David Nicholson confirmed the Government's position when he spoke on the "Today" programme on 31 October. He said:

"We will publish information about general practices so you will be able to see what your general practice provides, as compared with other GPs in the area and nationally... If you've got a long-term condition, you might want to think in future about different GPs and whether they are providing a full range of services for particular people with long-term conditions".

Of course it would be fantastic if patients could move between one general practitioner and another, but I fear that the financial restraints on all of the system will mean that that ideal will just not be met.

In the document Developing Commissioning Support: Towards Service Excellence, it is clear that the commissioning support is viewed to come from a commercial source. In the summary document to that, the running cost estimated for the arrangements will be £25 to £35 per head of population, which will be there to optimise arrangements to suit the scale of the problem facing the group. The commissioning support will come from commercial providers. However, as we have already heard, many of those are actually ex-PCT employees who have gone across into other organisations. From 2013 to 2016, the Commissioning Board will host some of the commissioning support via an arm's-length senior accountable individual. That commissioning support will be assessed against a focus on the consumer, as defined by their consumer base and working relationships; on leadership, particularly to bring about change; on delivery, with a technical capability; on governance, to provide the services needed; and on the business case. All of that sounds eminently sensible. I do question, however, whether this enormous upheaval was actually necessary or whether a revision of the PCTs, an increased input from clinicians and a tightening up of the commissioning focus within PCTs, with the courage to weed out those who were not performing well, would have been a more cost-effective way to deliver what we will have in the long term anyway. It seems that when people are reapplying for jobs in other organisations, the stronger ones will come through and the weaker ones will not.

Although we have heard a lot about local accountability and the clinical commissioning group having a very local focus, I would like to quote from page 27 of the larger document:

"It is clear from discussions with Pathfinder clinical commissioning groups that the principles and rationale for delivering some services at significant scale is well understood and accepted: it will allow them to influence and concentrate on the aspects of commissioning where they can add most value ... However, there is also a clear message that the focus should be delivering customer focused services and maintaining responsiveness, even where services are delivered at scale".

The clusters are, of course, providing a degree of scale, but there seems to be a hybrid spectrum between the very small going right up to the larger cluster, and items which need to be commissioned at what used to be almost SHA level. I therefore question the rationale for this whole process and that is why I added my name to the amendment.

I now turn to Amendment 236AA, concerning medical and dental postgraduate deans. I have discussed this with the General Medical Council and with postgraduate deans, with the lead dean from COPMeD. The reason they want to be funded by HEE is quite specifically so that they can maintain their independence and have the leverage to bring about change. The postgraduate deans' budget overall is somewhere in the region of £2 billion: it is not insignificant; 90 per cent of the training posts across the UK are funded through them. Many posts, such as first-year foundation posts and most specialty training posts are 100 per cent core-funded through the deans' budgets. The remainder of the posts are mostly 50 per cent core funded. Their ring-fencing allows money to be moved to change the distribution of posts. At the moment, for example, they are driving down surgical training posts and increasing general practice training posts.

There is always a pressure from within the service to maintain the status quo because services are often trainee-dependent. The postgraduate deans themselves have rationalised their costs greatly, so their on costs are only 4 per cent, compared to universities which run at about 15 per cent. Previously they had been placed in universities, but that did not work well because of conflicting research assessment pressures. They are concerned if that if they are part of the service, service pressures will dominate.

Their independence allows them two key functions: one to maintain quality assurance and the second is to drive up and improve quality. They are handling public money to train the doctors of the future, not only to provide the service needs of today-but within the training context, to meet the needs of today. They need to be local education and training board members because very often they are the only people on such a board who will bring educational literacy. They are all fellows of the Academy of Medical Educators or hold an MSc in medical education. They have an ability to assess both the provision of education and the assessment methods used in education. There is an awful lot of provision of education which is, frankly, inefficient and there is an awful lot of assessment that does not actually assess what it claims to be assessing.

At the moment, there is only one workforce director who has any education training at all; so without this high level of educational literacy, the local education and training boards are going to be severely disadvantaged. The NHS itself has to provide care today and high-quality care into the future. It is easy to focus on the present, but however good a medical school is, when its graduates move out, being employed is different. Training is dramatically different from 10 years ago. The postgraduate deans have really proven how they have driven up-despite the constraints of the European Working Time Directive-the ability of the juniors to be trained well and to cope with the changing pressures in the NHS.

For example, the medical take now in many centres averages 120 to 140 admissions a day. That is dramatically different from how it was 10 years ago. The trainees are better supervised; they are trained to avoid mistakes, not repeat ones they or those who have gone before them have made. The curricula are better focused across all the needs of the service, not only the technical needs. The postgraduate deans weed out about 3 to 6 per cent of all trainees: they are either moved sideways, have to repeat some training time or-in the case of a few-are weeded out completely. So they are exercising their independence and discretion to train for the future.

I know that the Minister has undertaken to look in detail at all aspects of education and training, but I want to have on the record the postgraduate deans' need to be independent. That is supported both by the deans themselves and the General Medical Council, because in considering the future, it is very important that we do not lose the educational expertise from the current set of deans.

Photo of Lord Warner Lord Warner Labour 5:30, 5 December 2011

I suggest that this group of amendments has been provoked by the extremely unconvincing nature of the Government's organisational structure for delivering the reforms they consider necessary to the NHS; they would in themselves, I suspect, attract a wide range of support. I want to address my remarks to Clauses 30 and 31 on the abolition of SHAs and PCTs. I think the concerns many of us have were well put by my noble friend Lord Hunt.

I want to divert a little from my remarks to congratulate the noble Lord, Lord Mawhinney, on his detective work. If he wants to continue in that vein, I suspect that he could find some examples in other parts of the country that go wider than that in Peterborough. He might want to entertain us with more of those examples at a later stage in the Bill because I suspect there are plenty of them. In a spirit of helpfulness, I say to him and to the Minister that among the department's papers of around 2005 are quite a lot showing how you go about consulting local people about the removal of PCTs and how you use a proper legislative basis for abolishing them and replacing them with new, properly authorised and properly appointed PCTs. I would be very happy to give my approval to the opening up of those papers so that the Minister can help the noble Lord, Lord Mawhinney, see how you can go about this. It is often controversial, but there is a process for doing it, which is well documented, and you do not have to go along the path of clusters. It is perfectly possible to engage with people-sometimes they do not like it-and go through a proper process for replacing a number of them. It can be done, and it can be done in a proper way, but it takes a bit longer. I would be very happy for those papers to be made available to the noble Lord, Lord Mawhinney, and the Minister so that if they are struggling a bit in seeing how it can be done, they can draw on that example.

Some of us on these Benches have acknowledged that the 2002 NHS reorganisation rather overdosed on the number of SHAs and PCTs and, as I have just said, we tried to put that right in 2005 and 2006 with a reduction to 10 SHAs and 152 PCTs. Some of us would have liked to have gone a bit further and reduced PCTs further, but that's life. You do not always get what you would want. In practice, that further reduction could have led, as I think the noble Baroness, Lady Finlay, said, to a much more straightforward way of making the changes that needed to be made and could have included a very large increase in the number of clinicians involved in the process of commissioning. I do not think anybody in this Chamber is opposed to the Government's idea of increasing substantially the amount of clinical and, in particular, GP involvement in the commissioning of services. However, it could have been done without this process, and it could have built on the lessons of GP fundholding, on which I have always been a supporter of the Government's approach. I thought it was a bold experiment, and I do not say that with any sarcasm at all. It was a bold experiment that was well worth trying and which we built on further with practice-based commissioning, so I do not think there is a lot of political dispute about more clinical involvement in commissioning.

The Government could have done that without clusters by simply reshaping PCTs, changing their membership, probably reducing their number and possibly increasing-dare I say this to some of my colleagues on these Benches?-the involvement of private sector skills in the commissioning function with the data analysis and information gathering. They could even have done it with a little more democracy in the membership of PCTs on which, as I recall, the Liberal Democrats were rather keen at one point. The coalition partners could have been brought onboard with a bit more democracy in PCTs as well. That might have been a good mix to go forward.

As I said, the Government have managed to go along a totally different path and on many occasions they have stuck to their guns when there has been the opportunity to change course. I want to remind them and the House of something I have said on a number of occasions. It is that no Government since the beginning of the NHS have managed to run it without an intermediate tier. There is a good reason why different parties have found it necessary to have an intermediate tier. It is because there are a lot of functions that do not easily sit at the local or the national level. Those of us who have been Ministers know that only too well. A bridge is often needed to the local areas through a regional presence, and it does not matter whether you call them regional health authorities or strategic health authorities. If you want, you could even call them sub-national board entities. I do not mind, but that intermediate tier is essential. It is even more essential if you have a financial crisis because it is the way to try to make budgets stick at the local level. That is not just because we like to have some heavy-handed financial thugs-although occasionally they are quite useful-to do this. It is because it is a way of persuading people locally to face up to their responsibilities and to get a collective agreement on the changes that need to take place in order to make the NHS function reasonably well with the money available. There are always going to be overspenders at the local level. We have never had a period in the NHS's history when everybody at the local level has managed their budgets perfectly. There have always been hospitals or commissioners that have overspent, and you need that intermediate tier to keep things under control.

The beauty of the previous arrangements, whether they were strategic health authorities, regional health authorities or regional hospital boards, was that, first, it was transparent that they were there; secondly, they were properly appointed; and, thirdly, they often had people who had some knowledge about the areas for which they were responsible. That function will not go away. What we are doing now is burying that function somewhere in the national Commissioning Board and, as my noble friend Lord Hunt made very clear, we are not at all clear how it is going to be discharged. To make life even more complicated, the Government have thrown in senates for good measure. It is not terribly clear how they are going to function or whether, in practice, they will be a block on the process of changing the configuration of services. It is not just me saying that; groups such as the NHS Confederation are very concerned that what we will have created is a kind of paralysis in decision-making at local level and in between the local level and the centre. I will put it no clearer than that because I do not think it is any clearer than that. Something is floating around in the ether: presences between the local level and the national Commissioning Board. That is where we have ended up. Clusters were invented, I think, to try to recognise that we need to reduce the number of PCTs, but there was no appetite for going through the process to do that in a proper and considered way.

Just to make things really interesting, the Government have also introduced an interesting new geographical concept for commissioning services based on GP practice areas. They have not just stuck with GP practice areas. They have invented-actually, we are seeing the invention as we sit here-new arrangements for new kinds of areas in which someone is forced to take some responsibility for the commissioning of services. Instead of having areas that are clear and publicly known, which is what we have got with PCTs, and which often had a pretty good relationship with the boundaries of local authorities, we have got we know not what. We have seen some maps from the Minister, who kindly circulated them, but they show, particularly in the West Midlands, the neck of the woods of my noble friend Lord Hunt, a rather confusing picture about practice areas and how they relate to the old PCTs areas. Whether there are going to be very many people in the West Midlands who understand who is responsible for some of these areas must remain open to doubt. I certainly found the maps revealing but quite difficult to understand.

It is not surprising, in that set of circumstances, that people are anxious about what is going to happen in a period when the NHS is trying to deliver the Nicholson challenge of £20 billion of productivity improvements or savings-call it what you will-over four years. People are worried because the NHS has never introduced the kind of productivity improvements that are needed to deliver the Nicholson challenge. Put cautiously, this is 5 per cent a year in real terms. The NHS has never delivered that annual saving in one year, let alone four years on the trot. Here we are throwing all the organisational cards up in the air-if I may put it like that, as that is what it feels like to many people in the NHS-and saying we are going to get rid of strategic health authorities in April 2013. That is the Government's plan. The very organisations which might have kept some kind of grip on the finances and the way the NHS is being managed have been put on notice that they are going to disappear. Some of them will reappear in some guise, although not as a public body, somewhere in the middle of the national Commissioning Board. Others will appear as local offices. They may not be called that, as we are not yet quite sure what they are going to be called, but they will reappear as a local presence of the national Commissioning Board.

We are relying on a huge amount of faith in the Government knowing what they are doing. We are relying on that in regard to about £120 billion, give or take, of public money every year. Not surprisingly, coming to the amendments in this group we see that people think there should be some checks. We need to have some safeguards in here, so that if it does go a bit wrong there is some way of salvaging the situation, instead of people assuming that we will keep all the expertise that we currently have in PCTs and SHAs. I know that PCTs and some SHAs have had their problems, but there is also a lot of expertise there. The bits of that expertise which disappear and the bits which remain will, I suggest, be slightly random; it will revolve around a lot of personal choices as much as anything. So we need some checks in this. It is not too late for the Government to be mature and recognise that we need better safeguards. That is why I am very sympathetic to changes which preserve the SHAs, in particular, for a longer period until we have actually got through the financial challenges that the NHS faces.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench 5:45, 5 December 2011

My Lords, I shall speak briefly to Amendments 236AA and 236AAA. As I listened to the noble Lord, Lord Warner, I reflected upon the fact that in the course of my professional career I have been a member of four hospital management committees, an area health authority for teaching, a regional hospital board and a regional health authority. Each one of these had its merits and defects.

On reading them and understanding the intention underlying them, these amendments look absolutely praiseworthy. I do not believe that they would have been necessary if the Government had been clear in what they intend to do about the subnational outreach of the national Commissioning Board. This has been promised to us by the Government and by Sir David Nicholson. It is intended to deal in every respect with the specialised commissioning of highly specialised services with regard to long-term conditions and with the issue, raised in many debates in the course of the last week or two, of the rising problem of rare diseases and their management and the new means of treatment that are being introduced.

Having said that, we hear that the Government are going to have clinical senates at a subnational level. It is intended that at these clinical senates there will be subnational outreaches of the national Commissioning Board that will fulfil the functions set out in Amendment 236AA. If that is right, my concern about supporting Amendment 236AA is that it looks as though it carries the potential danger of introducing yet another tier of management within the NHS. I look back with horror as I remember Keith Joseph's reorganisation of the NHS in 1974. I was heavily involved at the time as the dean of a medical school. It created regional health authorities, area health authorities and district health authorities. The tiers of management were impossible and the decision-making machinery congealed.

I am very anxious that we do not go down that route. If we could have clarity from the Government about the subnational senates and the outreach organisations of the national Commissioning Board, Amendment 236AA would not be needed and would have the potential danger to which I have referred.

I agree with every word my noble friend Lady Finlay said about the role of the postgraduate medical and dental deans. As I said at Second Reading, and later, it is the financial responsibility of the NHS to provide education and training for all healthcare professionals and to provide training for young doctors and dentists who are being trained for specialities in various branches of the profession. It is absolutely right that that authority and responsibility continue to be imposed upon the postgraduate deans, but surely the right place for them is not only in Health Education England but in these clinical senates-the outreach organisations of the national Commissioning Board to which I have referred. I hope that the Minister can give us assurances about this.

I would hate to say that this amendment, so ably proposed by my noble friend Lady Finlay, is in any sense weak. It is not-it is a strong amendment-but it might not be necessary in the light of the developments to which I have referred at the subnational senate level. I am concerned, too, that if it were accepted it might prejudice the Government's acceptance and agreement, which the noble Earl gave us quite recently, to the effect that a major government amendment on education and training is to be tabled by him on Report, to which we very much look forward.

The principles underlying these amendments are excellent, but for the reasons that I have mentioned I would find it difficult to support them if they went to a vote.

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative

My Lords, I will speak briefly. First, I remind the Committee that when I spoke on a related matter last week, as my noble friend Lord Mawhinney has reminded us, I indicated that I have an interest as my wife is a PCT non-executive. I wish to put that on the record again.

I rise in the same spirit of helpfulness as the noble Lord, Lord Warner, with whose every word I agreed-the Minister needs to know that. I am also conscious, as my noble friend Lord Mawhinney reminded me, of my hurt last week when I was accused of using extravagant language. I will try to do better-well, worse, perhaps-this time. I indicated at that time that when we got to these amendments I thought my noble friend Lord Mawhinney would leave no one in doubt about his views. He has not, and I have not got up in order to disagree with him.

I want to concentrate on two things: the constitutional issue and the conflict of interest issue. The constitutional issue is perhaps arguable, but if you take the view, as my noble friend did, that the Government have in effect-certainly this is how they present it-abolished PCTs before this Bill has even been passed, there is a real question mark. Perhaps it is no more than a question mark because they will say that they have not abolished PCTs and will not do so until an order in two or three years' time, but that is how it feels, looks and is perceived on the ground, and your Lordships might like to bear that in mind.

The second point troubles me even more and it is very clear; it is what I call the conflict of interests point. It might arise with SHAs and the clustering of SHAs that has gone on. I think I am right in saying that the SHA for eastern England, which now covers the east of England and the Midlands, stretches all the way from Yarmouth, the easternmost point of the United Kingdom, in Norfolk, to the Welsh border. How seriously can one body deal with the relevant issues over such a hugely disparate area, covering as it does on the way the massive conurbations of the West Midlands? I do not understand that. The appointments look like an east of England takeover, which perhaps is fine for those of us in the east of England. The chairman is from the east of England, the chief executive is from the east of England and large numbers of the executives are from the east of England. All that has happened-well, not quite all because not everyone is from the east of England-is that they have moved from Cambridge to Nottingham. How far is Nottingham from Yarmouth or Norwich? All sorts of questions are raised by this.

However, I want to concentrate on PCTs. As everyone, including the Minister, acknowledges, cluster boards had no legal existence. PCT boards continue to have a legal existence and to have all the responsibilities and duties that they had until whenever this started to happen. Under legislation, they have a duty towards the people in their area. When the PCT boards that are now being clustered were appointed, you could not be a non-executive director unless you lived in the area, and they had duties towards the people of that area. How is that interest, that duty, to be reflected in a board that does not have a majority of the people from any given area?

Let us look at Cambridge and Peterborough where, if I am right, there are particular tensions. My noble friend indicated that there would be three people from one area and three from the other-I do not know what exactly happened-with a chairman drawn from one area, which would mean four people and three people from the areas concerned. If there is any debate or confusion, how will anyone believe that that body is taking decisions in the interests of the minority area? A fortiori, if more than two bodies were clustered, no one would have a majority and the question could be asked in every area how far this body could represent the interests that it was supposed to serve in its capacity as the board of that area. This body has the same duty to everybody in two, three or possibly more areas. I do not understand how it will work. In some cases, there will be clashes, or at least different perspectives, between the hospitals that they represent.

Let us take a simple situation in which three PCTs each have a big district general hospital that may well have rival interests. If a service has to be allocated or a decision taken by the commissioning body or this cluster board on the basis that I have described, how will anyone be satisfied that the situation is fair between those three DGHs? I do not see how that will be achieved. One PCT responsibility is dealing with the allocation that it will still get as an individual PCT. How will the people of one area be persuaded that the proper decisions are being taken by a board that is no longer the representative or the chosen representative of the people in that area? I just want some answers to these questions.

I do not know what my noble friends think and I am not a natural troublemaker, but there are questions that have to be answered before this House or the other place can be satisfied. I very much hope that we will get some tonight. This issue clearly has not been properly thought through. I should be grateful to know whether my noble friend-he may want to shy away from this-can honestly say that he is clear that this process would be invulnerable to judicial review, which I very much doubt. I want him also to make it clear that the door is not shut on thinking again about some of the important issues that have been raised in this debate.

Like my noble friend I hope that this will not be pressed to a vote because the Government need to do some thinking and should be able to do it between now and Report. Ultimately, that depends on the reaction to what he says and whether we can have some hope that these issues will now be thought through and modifications made if necessary before we come back to this.

Photo of Baroness Murphy Baroness Murphy Crossbench 6:00, 5 December 2011

My Lords, apart from the postgraduate dean amendments, the rest of the amendments in this group in effect fall into the category that one might call "Stop the Bill, I want to get off". They would all fundamentally change the Bill; they would ruin it. None of them is a serious proposition. You cannot go from one system to another without radical change, but the arguments that I have heard about these amendments seem to be the same arguments that I have heard about preventing any change in the National Health Service.

The noble Lord, Lord Hunt of Kings Heath, says, "No, we can't do it now because it's too expensive and we have to save £20 billion". I suggest that it is not the £20 billion that we need to worry about; it is the increased costs that will continue to accrue through the changing demographics and changing technology over the next 20 to 30 years. If we continue to use the same direct management system, with its intermediate and many tiered system that we have used for the past 50 to 60 years, we will never address the challenges. All we will do is have a meagre, minor, reduced NHS of the same sort that we have now. We will have less and will not adapt and create something better. I am very much in favour of moving away from the direct management system with its so-called intermediate tiers, which I have served on as best I could over many years, to an independent regulator system where the providers at least are freed up and the commissioners, with the clinicians in charge, have the freedom to think about what they need to shape this service.

I agree with the noble Lord, Lord Newton, that the transition pathway in certain areas still needs to be clearly set out. We have had a clear indication of how that will work. Nevertheless, it is not all finalised. At this stage in the passage of a Bill, my experience is that things are put into place. That was certainly so in 1990 with the working on the patients' transition and the other transitions that were put into place by the Labour Party. There were arguments in this Chamber and the other place about the fact that everything was being set up. Proleptic appointments and the transition of structures were being made-heavens, it would have been improper if they were not. The fact that some of these changes are happening is very helpful.

The centred primary care trusts and strategic health authorities have been mentioned before. Is it not strange that two to three years ago nobody could wait to get rid of them because they were not performing very well? I agree that they have improved. Nevertheless they have not proved to be that helpful structurally, as they have become extremely bureaucratic and have not performed as well as we had hoped. To the noble Lord, Lord Rea, I would say that the speech made by the noble Earl some time ago could be repeated word for word today because there will be no private commissioning. There will be public sector commissioning that is supported in some instances only by the expertise of the private sector, which the noble Lord, Lord Warner, said is often very useful in these circumstances. I hope that the noble Earl will be able to reassure him about that.

It seems to me that if we want to create a new system-which I think we must, because the NHS cannot continue as it is at the moment-we will need some very serious structural changes. We need to progress and move on as quickly as we are doing now to get the SHAs and PCTs out of the way in an orderly fashion and to get the new structures for a new sort of regulated system in place.

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

My Lords, Clauses 30 and 31 abolish strategic health authorities and primary care trusts and remove the relevant parts of the NHS Act 2006. Let me start by addressing the noble Lord, Lord Warner by setting out where I feel we have consensus, because I think there is some consensus.

There is agreement that decisions in the NHS need to take place at different levels and we need to ensure that decisions take place at the appropriate level. I agree with the noble Lord that these levels do include an intermediate tier and there are decisions which should happen. However, where we differ is on how best to facilitate these decisions. We do not feel that the best solution is to have separate statutory bodies to play this role. Instead, we propose flexible arrangements that will best meet the changing demands of what needs to happen at this level-hence the board's field force, which noble Lords have spoken about, which will be adaptable in the future to grow and evolve in partnership with CCGs. That is the background to our approach.

As we have already discussed, many of the necessary functions and duties SHAs currently undertake will, in future, be undertaken by the NHS Commissioning Board or by clinical commissioning groups. Where existing functions or duties are unnecessary, we are removing them, making the system more streamlined and reducing administrative burdens. The amendments in this group would prevent the abolition of strategic health authorities until such time as the Secretary of State is satisfied that all of their functions and duties have been transferred to other bodies.

I understand the importance that noble Lords place on getting the timing of the transition right. As the NHS Future Forum pointed out following its consultation exercise, some people felt that the changes were proceeding too quickly, while others were concerned that the pace of change was not fast enough. The forum recommended further changes to phase the transition, and the Government responded by postponing the abolition of SHAs by a year. I believe this allows enough time for a safely managed transition.

The NHS Commissioning Board is due to take on its commissioning responsibilities in April 2013, and we believe that it is vital that SHAs and PCTs do not continue beyond that date. There are two main reasons for that. A key aim of the Bill is to ensure that the functions and duties of all bodies within the system are clearly defined. To have a confusion of responsibilities would be a retrograde step. The second reason is that allowing SHAs to run beyond the current proposed deadline for their abolition would also incur extra costs and hinder the Government from meeting the efficiency targets set by the quality, innovation, productivity and prevention programme. I will say more about that factor in a moment.

Turning to primary care trusts, we expect PCTs to retain commissioning responsibility while clinical commissioning groups develop and establish themselves. Once clinical commissioning groups are able to take on their commissioning responsibilities, we intend that PCTs should be abolished, and this will occur in April 2013. I understand that the noble Lord, Lord Rea, has concerns about this approach. I would like to make it clear that clinical commissioning groups will not be authorised to take on any part of the commissioning budget in their local area until they are ready to do so.

Where a clinical commissioning group is not able to take on some or all aspects of commissioning by April 2013, the NHS Commissioning Board will commission on its behalf, and in this role will be subject to the same duties of transparency and engagement. All clinical commissioning groups will have the right to take on full responsibility once they have demonstrated that they are ready.

I also hope that my statements regarding strategic health authorities and primary care trusts address the concerns of the noble Lord, Lord Beecham, and the noble Baroness, Lady Thornton, in relation to Amendment 245AA. There are a host of consequential amendments contained in Schedule 4 to the Bill which aim to ensure an effective transfer of responsibilities from PCTs and SHAs to the proposed new organisations. To remove these would result in legislative confusion and would also risk important functions not being picked up by the new organisations.

This leads on to Amendment 236AA, which would establish the sub-national functions of the board as separate, statutory, local NHS commissioning boards, each with its own full board of directors-in other words, a reinvention of the regional tiers in the NHS. I believe that this approach, recreating a statutory layer of management, would be not only unnecessary but also inefficient. It would almost certainly make it impossible to cut the overall costs of administration by a third, as our existing proposals will, creating savings to reinvest in frontline services. I cannot see how the new bodies that the noble Lord, Lord Hunt, proposes would add to accountability in the way that he suggested. The board will carry out a range of functions that will need to be carried out at both a national and a local level. We think it is best that these are carried out by a single body, with the autonomy and flexibility to design its own infrastructure, in a way that meets the needs of the local health service yet provides consistency nationally.

Turning to Amendment 256A tabled by my noble friend Lord Mawhinney, let me first say that I agree that it is vital to ensure a smooth transition of commissioning responsibilities to the newly established CCGs and to ensure that there continues to be proper governance of PCTs and PCT clusters in this initial period. I appreciate my noble friend's anxieties on this score. However, we continue to believe that PCTs and PCT clusters are best placed to do this by retaining their current structure and ensuring they continue to have governance arrangements in place. I will elaborate on that in a second. Where CCGs commission services for patients during the initial period, they will be doing so on behalf of PCTs through arrangements made under paragraph 11 of Schedule 6, rather than through exercising the CCG's own statutory functions. Until CCGs are able to carry out their commissioning responsibilities independently, the PCT will remain statutorily responsible for those functions.

My noble friends Lord Mawhinney and Lord Newton, to whom I apologise for my own extravagance of language last week, raised serious questions over PCT clusters. PCTs have been brought together into clusters precisely to ensure that accountability is maintained. Without clustering, the NHS would have seen PCTs being overseen by incomplete and patchwork teams of interim appointments as people in posts anticipated the abolition of PCTs and moved on to different organisations and roles. That would have led very definitely to unclear lines of accountability. Our view was that it represented a risk to ensuring that PCTs were able to continue effectively to carry out all their possibilities. Through clustering we have ensured that every PCT, through the cluster, will have a complete and able management team until, subject to Parliament, they are abolished. I would say to my noble friend Lord Newton that my clear legal advice is that clustering has a firm basis in terms of the use of legal powers and, furthermore, it is a reasonable use of those powers.

My noble friend spoke about conflicts of interest and the lack of proper representation on clusters. There is always the potential for any board member to come across a conflict of interest, and that is particularly true for non-executive positions, which are generally part-time and where people often have other roles outside of their non-executive responsibilities. It has therefore always been necessary for PCT boards to manage potential or actual conflicts of interest as they arise. We expect them to continue to do that in their new clustered states. We expect all board members effectively to work in the interests of the people served by all of the PCTs in the cluster and for non-executives and chairs to act in a manner that is in keeping with the Nolan principles.

We do not believe that, in effect, increasing the geographic scope of PCT board members by asking them to discharge their responsibilities on more than one board raises greater risks than may have existed with PCTs that were already very large. Some, as my noble friend knows, were already very large-all of Norfolk and all of Suffolk, for example. I hope that that explains at least the rationale for clusters and gives my noble friends some reassurance about the legal basis on which the clusters have been formed.

Photo of Lord Mawhinney Lord Mawhinney Conservative 6:15, 5 December 2011

My noble friend knows that three months ago in the Peterborough PCT there was a non-executive chairman and six non-executive directors. To the best of my knowledge, they have all gone. What now constitutes the Peterborough PCT and how does it make decisions when a cluster refers something to it for legal validation?

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

The clustering is a clustering of the boards. In other words, there is one board serving two or three PCTs, depending on the area of the country. The staff of the PCTs remain in place. There is capacity there to carry out the functions of PCTs. That is why PCTs remain statutorily accountable and they are in a position to perform the functions that the law places on them. We have streamlined the direction from board level. That is a practical and efficient thing to do and I do not think that it poses the kinds of risk that my noble friends were suggesting that it would.

I am very happy to meet both my noble friends again. I would say to my noble friend Lord Mawhinney that I was smiling when he spoke only because I know that Sir David Nicholson would be amused to be referred to as the chief technocrat. I would simply say that the NHS chief executive, while no substitute for me, I quite agree, may nevertheless prove helpful. That is certainly the object of his offer to meet my noble friend.

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative

My Lords, I think that we are talking about conflicts of interest in two different senses. My problem about conflicts of interest goes back to the accountability point that the Minister touched on. These two or three PCT boards remain accountable at least in part to the people of the area they were appointed to represent. Then there is conflict of interest in the narrower sense. I am chair of the board of the Suffolk Mental Health Partnership. If I had an interest in a private sector mental health outfit, I would obviously declare that and that is normal business. I am talking about a fundamental conflict of interest between the people on these boards and the interests of the people to whom they are supposed to be accountable, wearing three different hats.

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

My Lords, my point was that such conflicts have been managed in the past and can be easily managed in future. While there may be a specific example my noble friend wishes to draw to my attention, which of course I shall take seriously, I am not aware of any such examples. The clustering arrangement in practical terms is working efficiently around the country. Of course, I regret if hard-working non-executive directors who have served PCTs in the past have stepped down, because they have done sterling service, but it has been necessary to rationalise that structure.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Health)

Would the Minister care to reply to the rather disturbing question of the noble Lord, Lord Mawhinney, about the threat to members of the PCT who decline to resign and the consequent apparent disqualification from subsequent appointment?

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

My noble friend refers to the current legal position-that a non-executive director can leave his or her office in only one of two ways: by resigning or by being forced to resign. There is no desire on anybody's part to force non-executives to resign. These are not non-executive directors who in some way have misbehaved-not at all. However, it is necessary in the interests of the NHS that we rationalise the system.

The proposal put before non-executive directors was that, in the interests of the health service, they should consider their positions. That is not because they have done anything wrong but because of the transition that we find ourselves in. I would ask any non-executive directors who are listening or who read Hansard not to take offence at this. It is no reflection of their service to the public or the health service; it is simply a reflection of the transition that we are going through.

With my noble friend's permission, I should cover some of the other questions that have been raised. Of the many functions transferring from SHAs, Amendment 236AAA specifically seeks to address the role of postgraduate medical and dental deans in the new system. I recognise the vital role that the deans currently play to ensure quality within education and training. The important work of the postgraduate deaneries will continue through transition and into the new arrangements from April 2013. The SHAs will continue to be accountable for postgraduate deaneries until 31 March 2013, allowing time for a phased transition of their functions. This will ensure stability and help develop the improved system.

As the noble Baroness indicated, I have undertaken to come forward with more detailed proposals on education and training between now and Report. I repeat that assurance. Further work is under way on the detail of those arrangements with the right accountabilities for the quality of education and training to Health Education England and the professional regulators. That detail will be published as soon as possible. I hope I can reassure her that we have listened to the concerns in this area and that we are taking steps to address them

I would also like to address the matter of Clause 45 standing part of the Bill, which is part of this group. This clause will ensure that the Secretary of State will be able to establish new special health authorities only temporarily, for a maximum of three years. If there is a compelling reason for a special health authority to continue to exercise its functions beyond the three-year deadline, it is possible to extend its existence. However, any decision to do so would be subject to full parliamentary scrutiny via the affirmative procedure. This is to reflect our intention that any body in the health system exercising functions on a longer-term basis should have those powers transparently conferred on it in legislation.

The noble Lord, Lord Hunt, spoke about accountability. I think that, in fact, the board will be more accountable in many ways than existing NHS organisations. It will account to the Secretary of State and Parliament through the mandate and accompanying outcomes framework and the requirement to publish its annual business plan and annual report, and it will account for its decisions through the requirement to involve and consult the public over changes to commissioning arrangements.

I would say to the noble Lord, Lord Walton, that the precise structure of the board will start to take shape now that the NHS Commissioning Board Authority has been established to take preparatory steps towards the establishment of the board. The discussion document Developing the NHS Commissioning Board, published by Sir David Nicholson in July, set out the likely approach to how the board will be organised. It is clear that clinical advice will be central to the way in which the board operates, and clinical senates should be seen in that context, not as representing an additional layer of bureaucracy.

I would say again to the noble Lord, Lord Hunt, that the local workings of the board will be accountable through their work sitting on the health and well-being board, as well as needing to have regard to the joint health and well-being strategy. However, I think that what he said begs a question. The noble Lord paints a somewhat halcyon picture of PCTs and SHAs being accountable to their populations. As I tried to indicate on Second Reading, I do not share that analysis. No one disputes the valuable role that PCTs have undertaken. They have some good people and some important skills. However, under the current system PCTs attempt to combine two roles: they must make clinical decisions about commissioning NHS services; and they must understand the needs of their population, involving and accounting to local people.

Photo of Lord Warner Lord Warner Labour 6:30, 5 December 2011

I am sorry to interrupt, but I am really bemused by what the noble Earl has just said about the accountability of the local entity of the national Commissioning Board to health and well-being boards. Health and well-being boards have no budgetary responsibility whatever, as I understand what the Government are saying; whereas the national Commissioning Board has two lots of budgetary responsibility-for its own specialist commissioning and for its oversight of the money that it hands out to clinical commissioning groups. Perhaps the Minister can explain it to me. I can understand that it might want to consult the health and well-being boards but, in terms of accountability, I cannot understand how it can be accountable for its budgetary priorities and decisions to the health and well-being boards.

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

It is accountable for its decisions at a regional or sub-national level in a real sense. If it was not interacting with the boards, the noble Lord, Lord Hunt, might have a point; but it will be. I think that that is accountability in a meaningful sense. The noble Lord, Lord Warner, talks about budgetary accountability, and I understand that that is a real issue. Of course there will be no budgetary accountability, but there will be accountability for the decisions and actions taken by the field forces.

I was saying that the structure means that all too often neither of the roles that PCTs perform is performed well. GPs, who actually make the clinical decisions, are not properly involved in PCT commissioning; and PCTs do not have the detailed understanding of their communities or the link to other local public services. The result is an unsatisfactory compromise, with commissioning that fails to deliver improvements in health outcomes and local services that are fragmented and not integrated.

It has been suggested by some noble Lords that one could have kept PCTs and parachuted in a whole lot of doctors, perhaps filtering out some of the administrators. Anyone who has visited any pathfinder CCG and put that question to the doctors and other clinicians involved will know the answers to why that would not have been a valid and sensible idea. The way in which services are commissioned has to depend on the judgment of clinicians and the wisdom of establishing geographic areas for commissioning groups that make sense in terms of patient flows and in terms of links with local authorities, social services and public health. It does not make sense to retain structures that, frankly, are administrative constructs that do not necessarily bear any relation to patient flows or relationships with local authorities. These clinical commissioning groups are being created from the bottom up by those who know what is in the best interests of patients, and it is to patients that we must always return in our thinking. We currently spend £3.6 billion a year on the commissioning costs of PCTs. PCT and SHA management costs have increased by £1 billion since 2002-03. That is a rise of over 120 per cent. We cannot make savings on the scale that we need to while retaining the administrative superstructure of the NHS.

The noble Lord, Lord Hunt, suggested that the pathfinder CCGs were being built on nothing at all. They are not being created from nowhere. They are building on, and are indeed a logical development of, practice-based commissioning groups, of which there were a very significant number. There are currently 266 pathfinder clinical commissioning groups covering 95 per cent of GP practices in England. As I have indicated before, I cannot say how many we will eventually end up with, but that will give noble Lords a rough indication of the order of magnitude.

The noble Lord, Lord Rea, quoted some words of mine from a debate of several years ago. I would simply say to him that I was speaking then of something completely different from the Government's current proposals, and I am grateful to the noble Baroness, Lady Murphy, for pointing that out. These reforms place leadership of commissioning firmly with clinicians. I completely agree that giving leadership to a non-statutory, private-sector firm would be a bad idea. That is why there are very clear safeguards against this happening. With PCTs, I feel that there was a genuine question over where commissioning leadership really lay, and this is very firmly no longer the case.

On Amendment 236A, I must clarify one point. It is not the case that a clause stand part debate on Clause 30 would be consequential if a Division was to be called on Amendment 236A and won. It would simply amend this clause and not entail that it needs to be removed.

I hope that I have sufficiently covered the issues raised by noble Lords. I do not suppose that I have satisfied everyone, but I hope that I have at least indicated the direction of government policy in a coherent way.

Photo of Lord Rea Lord Rea Labour

The staff of PCTs below management level are going to be rather disappointed that the Minister did not answer my question regarding their employment and the possibility of their being moved over to the CCGs, where many of their functions are going to be precisely similar. Are they going to be made redundant? Is it going to be possible to move staff over smoothly without a break in their employment status?

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

My Lords, the rules apply on transfer of employment, and we anticipate that around 60 per cent of PCT staff will transfer to clinical commissioning groups, local authorities or the NHS Commissioning Board. It has been necessary to institute a programme of managed accelerated retirement for those for whom there will be no posts. However, this is being done in as friendly and generous a way as possible and the process is working well. But on the noble Lord's main concern, yes, the terms and conditions of employment should not alter for those who stay.

Photo of Lord Warner Lord Warner Labour

Could the Minister give us an assurance that before Report he will give us some idea of the extent to which the current arrangements are going to meet the targets set by the Government for delivering the Nicholson challenge for this coming year, so that we can see the extent to which the Government are at risk if they abolish the SHAs from April 2013?

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

My Lords, the SHAs have already published their plans for delivering the Nicholson challenge and those are on the SHA website. There is no secret about that. I can tell the noble Lord that we are on target to deliver the Nicholson challenge over the four-year period as a result of savings already made.

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 and instructive debate. I should tell the noble Earl, Lord Howe, that I do not have a rose-tinted view of primary care trusts. They were improving, I believe. But the question that I put to the Government is why on earth, instead of going through this convoluted and complex restructuring, they did not say immediately to primary care trusts that they should divest themselves of the services that they ran and get a move on with giving more responsibility to GPs? They could have done it on their first day, instead of which, instead of SHAs and PCTs, we have a much more complex structure, with clinical commissioning groups, health and well-being boards, senates, the NHS Commissioning Board and-blow me down-their field offices as well. I can tell the noble Baroness, Lady Murphy, that as the NHS Confederation says, we now have a very complex structure-not a streamlined approach that will deal with all the problems of the NHS. My goodness me, this structure will cause as many problems as it is potentially there to deal with.

There are some very serious questions about how the Government have done this. I am glad to know from the noble Lords, Lord Mawhinney and Lord Newton, that I am now part of the same region as they are. I look forward to further discussions and perhaps meetings in Nottingham from time to time, if we are summoned together.

The fact is that, in effect, primary care trusts have been abolished in advance of legislation. I understand what the Minister says-that by creating a cluster with non-execs from the PCTs, in effect those non-execs become the non-execs of each primary care trust. That is how the Government are essentially doing it, but that is a very disingenuous way in which to deal with the issue. They are skating on very thin ice, and the potential for judicial review is, I suspect, quite considerable.

Let us take this issue of the interest of the non-execs in Peterborough and Cambridge. I do not know the area particularly well, but let us say that, because of the financial issues facing Peterborough, a decision was made by the cluster to reduce services in Peterborough and ensure that those patients then went into Addenbrooke's. I suspect that might well be a proposal. The question arises as to the legitimacy of that decision if people in Peterborough think that they are being marginalised from that decision. That some bold decisions need to be taken I do not doubt, but I suspect that there will be some issues about legitimacy.

As for the issue of tiers, my noble friend Lord Warner is surely right. Since 1948, the health service has not done without a regional tier. The fact that the Commissioning Board is going to have to set up local field forces is a recognition of that, but they will have a heavy responsibility. The financial challenge, the reconfiguration challenge and the specialty challenge call for strong leadership at that level. My argument for the Minister is that they surely need to be accountable and seen to be accountable in their communities. I do not believe that in the end the mandate set by the Secretary of State or the outcomes framework really satisfies that kind of accountability, given that they are clearly going to have to intervene at local level and deal with issues to do with finance and reconfiguration.

I have listened to the noble Lord, Lord Mawhinney, when he advised me not to oppose that Clause 30 or 31 stand part of the Bill. I fully accept what he says. However, as the Minister has made clear, my Amendment 236A stands apart from that. It is a question of timing, and I do not believe that these changes should take place until we are sure that they are right. I beg leave to test the opinion of the House.

Division on Amendment 236A

Contents 170; Not-Contents 202.

Amendment 236A disagreed.

Division number 1 Health and Social Care Bill — Committee (10th Day)

Aye: 168 Members of the House of Lords

No: 200 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Clause 30 agreed.

Clause 31 agreed.

Amendments 236AA and 236AAA not moved.

Debate on whether Clause 32 should stand part of the Bill.

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) 6:58, 5 December 2011

My Lords, we come to a no less interesting subject than the issue of fluoridation of the water supply, which I know will be of interest to many noble Lords. I ought to start by declaring an interest as president of the British Fluoridation Society and, as someone convinced by the benefits of fluoridation, I want to ensure that those benefits continue in the future.

In 1964, Birmingham became the first UK city to introduce a water fluoridation scheme. By 1970, six years after its introduction, the number of teeth affected by decay in five year-olds had dropped by 46 per cent in a part of Birmingham, Northfield, as compared to those in Dudley, which fell by only 2 per cent. A report by the regional director of public health in 2006 found that children in fluoridated areas of the West Midlands with relatively high levels of social deprivation often had better dental health than children in relatively affluent areas where water supplies were not fluoridated. I am keen that progress continues to be made and that more areas are fluoridated in the future. The question before us is whether the arrangements in the Bill actually help or hinder that.

Under the new arrangements, it will be for a local authority, or local authorities, to make a proposal on fluoridation to the Secretary of State. If the Secretary of State agrees that such a proposal should be supported, the proposer must notify all other local authorities affected by the proposal and make arrangements as to how they should proceed. Regulations are apparently to be made on how local authorities might come to a consensus view.

An important question arises as to payment. The current 1999 Act provides a mechanism under which authorities can be made to bear the full cost of fluoridation. The Secretary of State can require the local authorities affected by arrangements made by the Secretary of State for the fluoridation of water with the water undertaker to meet the Secretary of State's cost incurred under the terms of the arrangement. In the new situation that we have, I am concerned that the whole process of approval and funding of such schemes seems to be rather convoluted. I hope that the noble Baroness may be able to reassure me on this point.

The first key question is: will there be sufficient resources to meet the cost of existing or future fluoridation schemes? Local authorities do not, of course, provide dental services and they do not have dental service budgets to call upon; yet clearly the impact of fluoridation is to reduce tooth decay. If less money is spent on treating tooth decay, that money should be able to become available for other aspects of dental and oral health care. If local authorities do not have a direct interest in the cost of dental health care, will that be an impediment to the expenditure of money on fluoridation schemes? Again, it would be very helpful if the Minister could inform me as to her view on that as well.

At this stage, this is essentially a probing amendment to ensure that the Government are as committed to fluoridation schemes as I believe they ought to be. I see that the noble Earl, Lord Baldwin, is in his place. From my point of view, the evidence is convincing. It is important that if local authorities come to a view that they wish to fluoridate or to continue to fluoridate, the money will still flow as smoothly as the fluoride in the water in places that are lucky enough to benefit from water fluoridation schemes. I hope that the Minister can assure me.


Lord Hunt is bound to represent the views of the British Fluoridation Society, which have not altered since well before 1960. Nor have those of the Department of Health - for reasons that relate to the US Administration's view, in 1945, that US industry was likely to be penalised so heavily by successful lawsuits claiming massive damages for wartime fluoride air pollution that it might well be unable to match Soviet industrial output at the start of the Cold War. For this reason, mass fluoridation was proposed as a plausible means of combatting childhood caries without introducing clearly too much toxic fluoride into the human body. We know far better, now, how almost totally cariostatically ineffectual and how bodily harmful the lifelong consumption of an artificially fluoridated supply using industrial grade fluorosilicic acid really is. However, US vested interests have managed to ensure that the unacceptable truths relating to fluoridation practice are never honestly admitted, nor are the real reasons for its introduction as 'a safe and effective dental health measure.' Indeed, UK Government is actually qutie powerless to resist US demands that mass fluoridation be propagated across the UK by whatever means are necessary, in the face of popular opposition and rational demands for its cessation. The political, ethical and legal issues surrounding this debate are deep and serious, but they are entirely ignored by fluoridation proponents because they have no proper answers to the questions raised.


Photo of Earl Baldwin of Bewdley Earl Baldwin of Bewdley Crossbench

My Lords, I support what the Government are doing here, though with some reluctance, for reasons that will not surprise the noble Lord, Lord Hunt. I am reluctant for two reasons that lie at the heart of a fluoridation policy: the scientific evidence for it and the medical ethics. It will pay to revisit those briefly this evening.

It is now 15 years since I started putting down Questions to the Government, chiefly on the evidence surrounding fluoridation. In the late 1990s the previous Government conceded that the studies they relied on were old and not of very good quality. Sir Iain Chalmers, a leading healthcare scientist who was then director of the UK Cochrane Centre, joined me in pressing for a high-quality systematic review. The Government agreed. That review, which came to be known as the York review, was conducted by the NHS Centre for Reviews and Dissemination at the University of York. I served on its advisory board as it examined 50 years of the world literature. The results, published in 2000, surprised many people.

Not one good-quality study could be found. This meant that nothing could be stated with clear confidence: not efficacy in preventing caries-though that did appear likely-not safety, and significantly not the hoped-for evidence that fluoridation might even out the inequalities in dental health between social groups. So poor was the evidence for that question that the four senior research scientists who were involved in the review described it in a letter to Health Ministers at the time as "weak, contradictory and unreliable".

I know from the previous amendment that it is dangerous to quote the noble Earl, but I was interested to reread the speech of the noble Earl, Lord Howe, on the regulations of the Water Act in 2005, and to read that he, too, was impressed by the lack of good evidence as shown by York. I emphasise that the York review was not just any old review-there have been plenty of those. This was a Rolls-Royce systematic review, conducted to the highest international standards, the only one of its kind in the field. A more recent Australian systematic review has been unable to find anything that would change York's conclusions.

I wish I could say that this better understanding of the evidence had influenced policy. Having accepted York's findings, through gritted teeth, governments have downplayed them and, at times, subverted them. For the past 10 years the York scientists, when they had the time to do so, and I have been trying to point people back to what the known evidence shows. In the face of deeply held beliefs, this has been quite an uphill task.

The question of ethics, which is my second objection, can be put in a nutshell. In our society, a person faced with a healthcare intervention is free to accept or reject it. This is the principle of individual informed consent. We find it in case law and in pronouncements from all kinds of medical bodies. Fluoridation is invasive and unavoidable. Therefore fluoride designed to protect teeth should not be delivered by this method. I could say much more, as indeed I have many times in your Lordships' House, but now is not the time or the place. These twin objections, evidence and ethics, are what motivate most of the large number of people who oppose community water fluoridation.

Given, however, that such schemes exist, and that the Government are determined to provide for new schemes, how best should they be structured? I believe that what the Government are proposing here is a significant improvement on what went before. The old system where water companies had a veto over new schemes was clearly not ideal. Since the Water Act 2003, strategic health authorities have been in the driving seat. Curiously enough, the All-Party Group against Fluoridation that I subsequently chaired was given an assurance by Health Ministers in the previous Government that they would put elected local authorities in charge, as is now proposed. However, when it came to their Water Act, it did not happen.

The problem with the unelected SHAs was-is-that they almost inevitably reflected the dominant medical view. Fluoridation was a classic case of premature consensus, on weak evidence from the 1950s and 1960s, and it became a kind of sacred cow, resistant to new evidence, as I have indicated with the York review. The regional director of public health who advised the SHA that recently decided to fluoridate Southampton, against the expressed wishes of its population, described fluoridation correctly as the "professional orthodoxy". Sir Iain Chalmers, who knows more about medical evidence than most people, has described it publicly as a "religion".

A most unfortunate feature in all this is that so many prominent bodies should have signed up with the National Alliance for Equity in Dental Health as campaigners for fluoridation-not just supporters, campaigners. The website of the British Fluoridation Society shows the British Dental Association, the British Medical Association, the Faculty of Public Health Medicine, the NHS Confederation, the UK Public Health Association, among dozens of other such bodies, including some royal colleges and about 60 primary care trusts. If you have signed up to a campaign, not only are you compromised in terms of impartial advice but it is very hard to draw back. It is much easier to keep going forward with your professional peer group. However, if you are the people whose advice is being sought and heeded, there is likely to be only one outcome.

While fluoridation continues, these clauses may offer the least worst way forward. In parenthesis, referendums would show more clearly what local people want. There have been quite a number in America, but as they have tended to reject fluoridation the Government may be wary of them. Even here, to have your healthcare treatment decided by a majority vote of your neighbours is not a principle known to medical ethics. At least local authorities are accountable to the populations they serve and, while quite properly taking advice from all quarters, should be better able to gauge than the SHAs have been what is right for their communities. People should not have to accept what Big Brother, or rather Big Doctor, thinks is good for them. I broadly support these clauses, but the devil will be in the regulations.

I conclude by putting three questions to the Minister. First, will she consider providing for a neutral body to set out the current state of the evidence in any future public consultation? This was suggested by Iain Chalmers back in 2003. Some of the misstatements during the Southampton consultation were pretty terrible. Secondly, will she include in that a revision of the Chief Dental Officer's guidance letter of February 2008 to decision-makers over fluoridation? I think that the noble Earl, Lord Howe, suggested to me that this would happen. Thirdly, will she give the undertaking, given by the previous Government during the passage of the 2003 Act and the regulations in 2005, that no new scheme will go ahead unless the local population is in favour? If so, will she ensure that any undertaking given-the noble Lord, Lord Warner, who is not in his place, was the one who gave it at the time-will not be watered down in the regulations so as to lose its effect, as happened last time?

Photo of Baroness Eaton Baroness Eaton Conservative

My Lords, like the noble Earl, Lord Baldwin, I feel that there is an improvement in the fact that fluoridation of the water supply should be determined locally. Local authorities are democratically accountable bodies, and surely they are the best placed to make decisions on behalf of the local population.

My concern, not just about this section of the Bill but about the amendment of the noble Lord, Lord Hunt, is around consultation and the ethical issue, which we have already heard mentioned, about the fluoridation of water and what that creates. I would appreciate hearing whether the processes by which the public are consulted about the fluoridation of water could enable communities to reject proposals to do so.

Members of the public are very cynical about consultation. They believe that, whenever their opinions are requested by any public body, no one takes action based on those opinions. It is important that communities are consulted and that the results of those consultations are taken notice of. The effect of fluoride on teeth may be a matter for dentists, just as the effect of fluorides on the rest of the anatomy may be a matter for scientists or doctors, but the question of whether it is right to use public water supplies to convey to the entire population a medication that is intended to influence the bodily development of 0.4 per cent of the population-that is, children whose teeth are forming-is surely an ethical question. The views of water consumers should carry just as much weight on this matter as the views of dentists and scientists.

I would be grateful if the Minister could reassure the House that consultation as referred to will actually have meaning and that local authorities, consulting on the matter of water fluoride with the residents, should be bound by the results of such consultations. It appears that the Bill allows the Secretary of State to ignore the results of consultation. Would the Minister explain this and give examples of where she envisages the Secretary of State taking decisions that disregard the results of the consultation?

Photo of Baroness Gardner of Parkes Baroness Gardner of Parkes Conservative 7:15, 5 December 2011

My Lords, when I saw that the noble Lord, Lord Hunt, was moving that this clause not stand part, I could not believe it-I thought that someone from Birmingham could not possibly be anti-fluoride. Having listened to him, I now understand what he is on about and that is a slightly different angle.

I am strongly in favour of water fluoridation. The noble Earl, Lord Baldwin, tells us that he has been tabling questions for 15 years, but the issue has been before this House for much longer than that. We had probably the bitterest debate I have ever seen in my life in the House in about 1983, following the Strathclyde judgment. Strathclyde is a place in Scotland-given the current Leader of the House, I suppose I hardly need say that-where the council introduced water fluoridation. Suddenly, decay in children's teeth decreased by 40 per cent. Then local people got very upset and said, "We don't want this; it's poison and it's terrible". The fluoride was taken out of the water, and immediately dental decay went right back up again. A court case was brought-I have not read the decision because it is 400 pages long-and the court ruled that fluoride was not a poison in the water, and after that other authorities put it in. As I say, though, the debate here was very bitter, and I am pleased that those who have spoken against fluoridation today have not shown the same bitterness that we had at that time, when people almost got up off their death-beds to come in and oppose it.

There are a number of other points that I feel I must take up. The noble Earl, Lord Baldwin, was talking about the Australian comparison. I had an interesting visitor from Australia, the shadow Minister for federal health, or the federal Minister for shadow health-I think I have got that muddled up, but anyhow he is the opposition man on health. He was telling me that in Australia it has become very fashionable to drink bottled water, and they have found that people who are drinking that water are all getting dental decay back again, which again proves how effective fluoride is. I have a nephew who is a dentist in Sydney, and he tells me that he can tell if a boy has come from the country where all you would have to drink would be rainwater or water from a river-they come in with terrible teeth and you can spot them immediately.

The noble Baroness, Lady Eaton, asked whether this is medication, and what about pure water? At one stage I was very involved with the water supply for London. Thames Water explained to me that every drop of water that we consume has been used eight or 10 times before-it may be more now. So there is nothing pure about it. It is not straight out of the river or anything; it has already been treated again and again. None of us stops to think about the chlorine in the water. Where I live in Oxfordshire, you have to fill the kettle the night before because otherwise the smell of chlorine in the water coming out of the tap is too strong. Chlorine is also a great thing for swimming pools. The answer to the noble Earl, Lord Baldwin, the noble Baroness, Lady Eaton, and others who really do not want to consume fluoride is that it does not matter whether the water in your bath has fluoride in it; you can go back to bottled water and have the Australian experience, and see what happens to your teeth then.

I also have been asking questions for a very long time. One question that is highly relevant is: what is the difference between the decayed/missing/filled rate-that is the dental classification-between Birmingham, which has the best teeth, and Manchester, which has probably the worst? The difference is vast. When I have asked the further important question, "What's the difference in their health? Is there a difference in the pattern of what people die from or what illnesses they contract in Birmingham?", the answer is that there is no difference. There is exactly the same health pattern in both these areas, but the difference is that one has better teeth than the other.

I still have a few questions to ask the noble Baroness. For example, we keep using the words "operable" and "efficient" everywhere, and asking whether something is or is not operable and efficient. Who will decide whether it is operable and efficient and what sort of criteria will be used?

I also notice that, in Clause 32(9), new Section (3A) refers to the Secretary of State wanting to make the fluoride proportion lower than the general target concentration. The target concentration is one part per million, and when water is being reused it is often required to reduce it to one part per million. However, that is not what this clause says. The clause says that the Secretary of State might want to reduce it to below the optimal point, which puzzles me. I should like to know in what sort of circumstances the Minister envisages wanting fluoride in the water but also wanting to reduce it. I could understand it if the time came when it was proved that there was some problem. That could then be the case but, if it were, surely new and urgent legislation would be needed immediately. People complain that there is too long or too short a time in which to test something, but you could not really say that the period since 1964 is too short. It really has been tested for a very long time without ill effects on people's health.

It is very important that these clauses are kept in. I hope that the money will be found, and I am not really worried about where it is found from. There are small children in Manchester, often from ethnic communities, whose first presentation to the dentist means that they have to go to hospital to have all their baby teeth taken out under general anaesthetic. That is just not good enough and could be prevented if fluoride was in the water there.

Photo of Lord Colwyn Lord Colwyn Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, my noble friend Lady Gardner reminds me of how I used to practise. It is not a lot of fun to pull a load of teeth out for a child under general anaesthetic. We are in great danger of getting into a pro and anti-fluoride debate, which I do not want to do. However, I want to support the noble Lord, Lord Hunt, who is a patron, or vice-president, of the British Fluoridation Society, as am I.

As it stands, Clause 32 will mean that after 1 April 2013 the money currently spent on the existing NHS schemes will pass to local authorities, which do not have a dental budget. They would have to pass it on to the Secretary of State via Public Health England to pay the continuing bills. Would it not be more efficient and quicker if the current NHS spend on fluoridation went directly to the Secretary of State-that is, Public Health England? It would mean that the organisation that pays the bills has the money in its account and is not reliant on transfers from local authorities.

As the Bill stands, when any new schemes are agreed by local authorities after they take charge of consultations on fluoridation, the Secretary of State will look to them to pay for those schemes. However, local authorities are not responsible for dentistry and have no dental health budget. The amendment of the noble Lord, Lord Hunt, means that although local authorities will be the decision-making bodies in future, the money for any fluoridation schemes that they support will come from the dental health services budget of the NHS Commissioning Board-the body that stands to benefit from the reduced treatment costs that would inevitably follow. The NHS Commissioning Board would transfer funds to the Secretary of State, who would pay the bills submitted by the water companies. Does the amendment of the noble Lord, Lord Hunt, not simplify the process?

Photo of Baroness Northover Baroness Northover Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development)

My Lords, let me first set out the Government's position on fluoridation. The Government's policy is that decisions on fluoridation should be taken locally. That is why we have transferred the responsibility for conducting consultations and determining their outcome to local authorities. More than 5 million people, mainly in the West Midlands and the north-east of England, receive a water supply in which the fluoride content has been topped up to a level of one part per million. Worldwide, some 200 million people now receive fluoridated water in the United States and 11 million more in Australia. There are also fluoridation schemes in Ireland, Canada and Hong Kong.

I hear what the noble Earl, Lord Baldwin, said about evidence. A report, A Systematic Review of Public Water Fluoridation, commissioned by the department of health at the University of York, was published in September 2000. It concluded that water fluoridation increased the proportion of children without tooth decay by 15 per cent and that children in fluoridated areas had, on average, 2.25 fewer teeth affected by decay than children in non-fluoridated areas. However, as the debate has shown, there is a great range of views on this matter. That is why we feel that decisions must be taken at a local level following extensive consultation.

Our view is that the responsibility for proposing fluoridation schemes and for conducting consultations on such schemes should transfer to local authorities, while the responsibility for contracting for fluoridation schemes should transfer to the Secretary of State. In practice, the Secretary of State's functions would be carried out by Public Health England. Making local authorities responsible for consultations on fluoridation schemes fits well with their responsibilities for public health. We anticipate that proposals for fluoridation schemes will derive from the joint strategic needs assessments that local authorities and health bodies will make of their populations.

The noble Lord, Lord Hunt, raised the question of whether local authorities would neglect dental health. Dental ill-health would seem to have wider repercussions. The great difficulty, particularly among older people whose teeth have decayed, certainly bears out the necessity of preserving teeth in younger life. It is not simply a matter of looking at children's teeth and the impact on them but of seeing dental health as lifelong. Health and well-being boards would therefore have a responsibility to consider dental health because of that significance.

More than one authority might be involved in any scheme that is put forward because water distribution systems are generally larger than the area of an individual local authority. The Bill sets out a number of initial steps that the lead or proposing local authority must take, including consulting relevant water undertakers and the Secretary of State to ensure that a proposed scheme is operable and efficient. Unless only a single authority is affected, or the other affected authorities do not wish to participate in the process, the Bill requires local authorities to arrange for a joint committee to carry out the consultation process and make subsequent decisions in relation to the proposal. From 2013-14, the department intends to allocate a ring-fenced public health grant to local authorities. The ongoing costs of fluoridation schemes will be reflected within the grant to those local authorities.

The noble Earl, Lord Baldwin, asked about neutral information. This is an area where we should proceed on the basis of evidence. Public Health England might well be the right body to assess such evidence. The noble Earl also asked about schemes going ahead only with the support of the local population. The provisions in the Bill transfer responsibility for consultations to local authorities and include powers for the Secretary of State to specify the steps that local authorities must take in relation to consultation. We expect that the evidence base will still determine a decision to consult. However, putting local authorities in charge of consultations would make decisions on fluoridation more democratically accountable. We intend to consult on the detail of the regulations, including the process that local authorities must follow when ascertaining public opinion.

My noble friend Lady Eaton asked whether people would be able to reject local fluoridation. Of course, consultation needs to be meaningful. The decision to consult and whether to fluoridate will be for local authorities, not the Secretary of State, to take. We expect them to take account of the scientific evidence as well as public opinion.

I acknowledge that these provisions and the whole area are complex. Much of the technical detail will be included in regulations. No doubt we will have further profound discussions of this. We intend to consult on the policy proposals for the regulations that we will make under the powers in this clause in a consultation document that we will publish in due course. In the light of this, I hope that noble Lords will be content not to move their amendments, and that the noble Lord, Lord Hunt, will be happy for the clause to stand part of the Bill.


Baroness Northover is right that decisions on new fluoridation schemes should be taken locally. However, if it were really left to the majority of local and informed citizens affected by the scheme to decide the issue, no new schemes could be introduced! Therefore there will certainly be a mechanism introduced that ensures that the actual decision to fluoridate is taken right out of local people's hands. Let us remember that EU Member States have, independently and almost without exception, rejected mass fluoridation on the grounds of lack of evidence of dental efficacy and real concerns about harm to health, including the admitted fact that permanent teeth can be unacceptably fluorosed by the practice. York CRD is much misquoted by the proponents of fluoridation. The data quoted by the Baroness relates to a collation of acceptably controlled caries studies over a period of time from 1945 to 2000. During this time other and far more effectively cariostatic dental prophlaxes have been introduced, whose clinical effectiveness is established e.g. fluoride-containing pastes, floss and mouthwashes. The real scope for apparently significant caries reductions via additional protection from fluoridation schemes has dwindled almost to zero, as all recent large scale analyses from US, Canada, Australia and New Zealand will confirm. One is left with an attributable fraction of a tooth surface or two less decay by the age of 20 per child! [Hardly a cost effective measure today, then!] Far stronger outright condemnation of the practice comes from well-controlled studies of harm to human health, including a net ~25% excess of early prenatal and postnatal deaths in fluoridated areas on top of a 15% excess of all preterm deliveries. Specific lethal and other congenital malformations are up by excesses known to range from less than 5% to over 250%. Osteosarcomas show a 6-fold excess [Bassin] in fluoridated parts of New Jersey (the State most affected by widespread pollution from the atom bomb project). In increasing old age specific bone fractures are directly related to the amount of fluoride ion incorporated in the skeleton via drinking water. This clearcut evidence was, deliberately or otherwise, confounded by the York team when they included studies on osteoporotic bone fractures under oral fluoride regimes, which can be stopped when and if they show fewer fractures in the treated cohorts. Lord Jauncey was in no doubt that fluoridation was a form of mass medication. This is now categorically denied by UK Government because it would mean admitting that they have legislated away fundamental human rights guaranteed under International Law by passing the 1985 and 2003 Water Fluoridation Acts. Unless Parliamentarians get a grip of the real issues involved and directly challenge the stranglehold that an earlier US Administration, in more dangerous times, persuaded UK Goverment to accept - lock stock and barrel - in return for substantial NHS funding et al, no-one in the UK outside Scotland will be able successfully to prevent new fluoridation schemes wherever they are officially proposed, in spite of all the severe harm they do undoubtedly cause. Finally, please obtain and study carefully the...

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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) 7:30, 5 December 2011

My Lords, I am very grateful to the noble Baroness, the noble Lord, Lord Colwyn, and the noble Baroness, Lady Gardner of Parkes, for their support for fluoridation. The noble Earl, Lord Baldwin of Bewdley, with whom I have very much enjoyed taking part in previous debates on fluoridation, put his points powerfully. I do not agree with him, but that is not the point at issue tonight. I certainly agree with the noble Baroness, Lady Eaton, that the transfer of responsibility from SHAs to local authorities is a key advance. Birmingham City Council took a decision in this regard in 1962, which had a very positive impact on oral health in Birmingham and led to a more general introduction of fluoridation through much of the West Midlands.

I note what has been said about the role of health and well-being boards in relation to oral health. That is important. I also note that the Government believe that this is a local matter. That is fair enough, but I hope that the Government will also take a somewhat more strategic role. It is for the Government to make the general point that improving oral health is a good thing to do and that fluoridation can play its part. I hope that in saying that this is a local decision, the Government will remain in support of the general principle of fluoridation.

On funding, I took the noble Baroness to mean that a part of the ring-fenced grant to be given to local authorities in relation to their new public health responsibilities will reflect the cost of fluoridation schemes in areas that currently have fluoridation. I hope that she will confirm that in writing. For instance, Birmingham City Council will get an additional grant because the water is being fluoridated. Taking that principle further, I assume that if Manchester finally decides to fluoridate its water schemes, the city council will then receive an additional grant. That is very important.

As regards the convoluted and complex basis of the legislation, it is hard to see how the money circulates. I will not press my opposition to this clause stand part debate but I hope that the Government will give a little more thought to whether they can come up with a rather more straightforward approach to how the money circulates. The present arrangement is rather complex. I am very grateful to noble Lords who have taken part in this debate.

Clause 32 agreed.

House resumed. Committee to begin again not before 8.34 pm.