Committee (11th Day)

Health and Social Care Bill – in the House of Lords at 3:36 pm on 7th 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.

Moved by Earl Howe

That the House do now again resolve itself into Committee.

Amendment to the Motion

Moved by Baroness Thornton

At end to insert "but that this House regrets the Government's appeal against the Information Commissioner's ruling that the Government should release the Transition Risk Register; notes that the Information Commissioner says that disclosure would aid public understanding and debate on crucial aspects of the Bill; and requests that the Secretary of State reconsider his decision to withhold the information in order that this House can have the information in time to be considered during the passage of the Bill."

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health), Shadow Spokesperson (Equalities and Women's Issues) 3:37 pm, 7th December 2011

My Lords, I move the amendment, which is for a Motion of Regret, in my name on the Order Paper. This is the third time that I have asked for the indulgence of the House to bring this important matter before it and I hope that this will be the last. My amendment is not a fatal Motion. It does not intend to stop the progress of the consideration of the Bill, much as the doctors, the BMA and others might desire it. The battles to change the Bill are for later today and in the new year. This is a broader issue.

This amendment will allow the House to express its dismay, should it so wish, that the Government are denying the Committee currently considering the Bill information that may be pertinent to its deliberations. Noble Lords may recall that my right honourable friend John Healey MP and the Evening Standard both submitted freedom of information requests in November 2010 to have the register of risks relevant to the Bill released. They went through the procedures of review and appeal with the Department of Health.

On Friday 2 November, the Information Commissioner ruled that, given the particular circumstances-that is, the passage of primary legislation through Parliament-the register of risks should be released. I raised the matter in the House on 14 and 16 November, asking for the information to be made available. On 28 November, the Minister informed the House that the Department of Health was appealing the decision of the Information Commissioner. He was unable to inform the House of how long the appeal process might take and whether the risk register might ever or eventually be made available to the House in time to be considered during proceedings on the Bill.

The Minister also said that some information might be made available. However, he said:

"I cannot share the detailed breakdown of the information recorded in the risk register, or the wording".-[Hansard, 28/11/11; col. 16.]

The noble Baroness, Lady Williams, supported the need to make this information available to the House, for which I for one am very grateful. It underlines the fact that this is not a party-political issue and is not for point-scoring. It is about the proper functioning of this Chamber doing the best job it can with all the information available to enable us to do so. The pros and cons of releasing the information have been thoroughly explored by the Information Commissioner in his ruling, including addressing the concern about precedent setting expressed by the noble Lord, Lord Butler, on 28 November. The Information Commissioner argues with great clarity in his ruling that the particular circumstances of the Bill mean that the information is directly relevant and should be released. He said in his ruling of 2 November that:

"The Commissioner finds that there is a very strong public interest in disclosure of the information, given the significant change to the structure of the health service the government's policies on the modernisation will bring".

In this ruling the commissioner goes on to say that he,

"considers that disclosure would go somewhat further in helping the public to better understand the risks associated with the modernisation of the NHS than any information that has previously been published".

This is the information that we have been refused. Today we start day 11 in the Committee on this huge and complex Bill, with its implications for our NHS. We have been considering this Bill for over 60 hours, and by my reckoning we have about another 25 or so to go before we embark on the next stage in the new year. We do so ignorant of this information.

As well as regretting the decision taken by the Government, the amendment asks the Minister to reconsider the decision to appeal the Information Commissioner's ruling. I appreciate that the decision about this matter may be above the Minister's pay grade, and I sympathise with his position. It seems to me that a clear expression of the House's dismay and regret may strengthen the Minister's hand when he discusses this further in the department.

There are two final matters which I ask the House to consider. The first is that the last Government, under similar circumstances, and indeed after a year of resisting, released the third Heathrow runway risk register to Justine Greening MP. It did not create a rush to request risk registers. Secondly, it has also emerged, as was published in the Evening Standard, that NHS London publishes quarterly on its website a risk register for health services in the capital, including how they could be affected by the Government's reforms. NHS London's frankness can only add to the case for publication. I understand that one other NHS region is also considering this course of action. I ask the Minister if he is aware of this, and does it not rather undermine the argument the Government are using to appeal this decision? Indeed, does his department intend to stop NHS London?

I hope the House will regard this as a very serious matter. I hope that noble Lords will consider supporting this Motion of Regret if there is no change in the Government's position. Like all noble Lords here, I hold the noble Earl, Lord Howe, in great respect and esteem, and I have come to the decision to proceed only after much reflection. It is because this House is a body of revision and scrutiny. It has without doubt a worldwide and distinguished record of scrutiny, which includes, after consideration of evidence and facts, telling Governments that they need to change legislation. This House has a reputation for standing up to Governments when it believes that rights and liberties are in jeopardy, and having access to the information allows us to reach considered decisions. I suggest that we are being denied the ability to do our job. A GP sent me a message this morning:

"Glenys Thornton, how can you debate a Bill without knowing the risks?".

He is right.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat 3:45 pm, 7th December 2011

My Lords, it is important to spend a moment or two explaining the purpose of a risk register. One of the difficulties that has arisen over recent years is that risk registers have been used in the planning of long-term substantial projects by both the last Labour Government and the present coalition Government. When a risk register is produced, the effort is to consider all the contingencies-some of them highly unlikely-which might arise in relation to that project. There will certainly be some information in that category that would enable the discussion of any Bill of sufficient significance passing through Parliament to be treated with better knowledge than might otherwise be the case. It is also true that under the terms of the relevant legislation, particularly under Section 35(1)(a), there is an exemption category which allows those registers that directly affect policy formulation to claim an exemption from the output and effect of information legislation.

What we now know happened in this case is that when the Information Commissioner considered the point put to him by the original seeker after information, he had to weigh up on the one side the exemption argument and on the other side the argument of the public interest. He himself indicated in his original findings in early November this year that it was a very narrow balance, but that he believed, as the noble Baroness has said, that the issue was sufficiently in the public interest for him to overrule the exemption. There is a legislative right to appeal, of course, and that right to appeal was taken up by the Department of Health on the grounds that this is to do with policy formulation and therefore falls within the exemption. It asked the commissioner to overrule the application. The commissioner decided to uphold the application on the balance of considerations both ways, and the Department of Health then decided to use its right to appeal and it is that appeal which is now about to come before the tribunal. My understanding is that both sides in this argument, the complainant and the defendant, have asked for more time in order to prepare their cases. Only after that will the tribunal be able to make a ruling.

Along with the noble Baroness, I am of the view that it would be helpful to the Report stage of this Bill to have as much information as can possibly be made available. However, the proper way to do that is to allow the tribunal to reach a judgment. My understanding is that if both parties to the tribunal were to request a decision to be made as quickly as possible after the cases have been prepared, the tribunal might be agreeable to a rapid decision. That is very important because nothing can happen before such a decision and it would be unfortunate for the House if the result was not known well before the Bill reaches Report.

I ask the Minister whether he could consider such a joint approach to the tribunal, recognising fully that the two sides must be able to prepare their cases, to see whether it could not act much more quickly than is its usual practice in order to allow the House to have the information if, indeed, the tribunal decides not to uphold the appeal. If it does uphold the appeal, it will then of course be a different case and there will not be any further argument about it. I put that to the Minister because I believe it is very important to settle this issue quickly. I fear that it may hang like a dark shadow over the whole of the Report stage. It must be decided one way or another either before or very soon after the Report stage begins when the House resumes in the new year.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I understand the wish of the Government to appeal against the decision of the commissioner because of the general issues of importance raised under the freedom of information legislation, but the issue raised today by the amendment does not depend on the proper answer to the question that was before the commissioner and which will be before the tribunal. That is because the issue before the commissioner and the tribunal was the proper balance of interests-a very difficult balance of interests, as the noble Baroness, Lady Williams, has said-between the public interest in having this information and the very real need to ensure that risk registers in general are not disclosed. But the issue before the House is different. It is the issue of whether the Members of this House should be given information that the commissioner in his judgment, having seen that information, has said will be of considerable importance in enabling the Members of this House to perform our scrutiny function in relation to this vital Bill.

I cannot share the opinion of the noble Baroness, Lady Williams, that this is the same issue as will be before the commissioner. It is a matter for the judgment of this House how best we perform our scrutiny function. Whatever the balance may be, in general, between the public interest in disclosure and the very real interest in not disclosing confidential information that is on a risk register, the balance is surely very different in principle when we have before the House a Bill that we are scrutinising and considering. It would, I think, require an overwhelmingly strong argument to justify non-disclosure to this House of information that is relevant to our scrutiny function. I therefore hope that the Minister will be able to say today that he is prepared to disclose to this House at least the substance of the information that is contained in the risk register, so that we may fully perform our scrutiny function in relation to this vital Bill.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

My Lords, I am very interested in the argument of the noble Lord, Lord Pannick. He seemed to be setting a rather different standard, well above that imposed by the Freedom of Information Act 2000. I have no doubt that the Minister will deal with that argument when he comes to it. However, I believe that the question for the House today is whether or not we support the Department of Health's right to appeal against the Information Commissioner's decision. This has been a much more finely balanced decision than I believe the noble Baroness, Lady Thornton, is prepared to credit, which I find somewhat surprising given her recent role in government. In this kind of situation, with a qualified exemption under the Freedom of Information Act, it is all about whether the balance of public interest is served by disclosure or non-disclosure. The arguments put forward to the commissioner were in relation to two essential aspects. First, there is the "safe space" argument: the importance of Government having the freedom to debate policy and make decisions,

"without being hindered by external comment".

Secondly, there is the "chilling effect" that disclosing information relating to a particular policy, while that policy is still being formulated or developed, could have on,

"the frankness and candour with which relevant parties make future contributions to that particular policy debate".

These are perfectly respectable arguments and that is why the commissioner found that the factors are finely balanced, as my noble friend Lady Williams said. In the light of the particularly strongly held views of the department-and I believe that these are genuinely held-it seems that it is entirely valid for the department to appeal to the First-tier Tribunal.

However, I agree very strongly with my noble friend that time is of the essence in this case. There is little point on a decision on appeal not being made until March or April; because, as my noble friend has pointed out, the Bill will probably have passed through this House entirely by then. To mitigate the possibility of that kind of delay, my noble friend's suggestion is entirely right and sensible. The Department of Health and the complainants should apply to the First-tier Tribunal for an expedited hearing. This is well within the tribunal's case-management powers under paragraph 5 of the procedural rules, which were last set out in 2009. Of course, this is a discretionary power, but I believe that any tribunal would recognise the need to resolve these matters quickly, particularly in the light of the debates we have had in this House. I believe it would be extremely helpful in the circumstances if the Minister indicated the department's willingness to proceed along these lines. I hope that my noble friend can give a positive response today, even if further time is needed to prepare the case on both sides.

Photo of Lord Turnbull Lord Turnbull Crossbench

My Lords, I was not involved in the earlier exchanges in this House on this issue. Coming to it new, my view is that first, there is a very important issue of public policy here; and secondly, the FOI process, still less the procedural devices in the course of this Bill, are not an effective way of resolving the issue.

The issue is this: in what way should public authorities report on risk ex ante and account for their management of it ex post? A ruling on a request for a specific document from a specific department is, in my view, incapable of addressing that issue adequately.

Let me declare an interest: I am a director of Prudential plc. This, in the jargon, is a SIFI-a significant financial institution-and, as such, it is now required to have a separate risk committee. In the rest of the plc world, risk is still dealt with as the work of the audit committee. I am a member of that risk committee. Looking at its experience, one can identify three categories of material. First, there is a definition in the annual report of the risk universe and the organisation's risk appetite: capital risk, liquidity risk, credit risk, operational risk, and so on. In addition there is a definition of the organisation's appetite for risk.

Secondly, the annual report has material on how risk is managed-the so-called three lines of defence: front-line managers, the risk function at the centre, and internal audit. There is then a third category of information. It might be about the risk of falling below a particular level of capital, or the danger of not finding enough liquidity at a crucial time, or the danger that the key supplier might fail or that IT systems might be interrupted. There are also watch lists: what banks or counterparties does one not want to increase one's exposure to? This is often set out in the diagrams with which many Members of this House will be familiar, in red, amber and green, showing impact, likelihood, a combined score and then the mitigants.

Very little of this category of information is disclosed, for a very good reason. Discussing it can risk making it more difficult to manage the case in question and in some circumstances might crystallise the very event one is trying to avoid. The same should apply to public bodies. Mention has been made of the chilling effect-that is, officials being reluctant to give candid advice more or less in real time. There is also something that has not really been covered by the Act, which I call the "crystallisation effect". Managers might be reluctant to be frank in public about operational difficulties if that would undermine their ability to make contingency plans or could trigger an event before their plans are ready.

In my view this is the wrong way to resolve this issue. Where the line should be drawn, what is reported and what is withheld should not be decided on a case-by-case basis. The Information Commissioner-indeed, the whole of the FOI Act, in my opinion-is afflicted by the fallacy of composition. Because something is desirable in case A, it will also be desirable in all cases, if all cases alike are treated in the same way. However, if I stand up to get a better view of a football match, I will improve my view; if we all stand up, none of us will. The fact that one cannot take cases in isolation is perfectly illustrated in this case. The Information Commissioner issued a decision on 2 December on a request from the risk register on the NHS reform programme. Yet only the day before, he issued a decision on a different request, I think from a different complainant, on the strategic risk register. It is fanciful to think that those things could be decided independently or that they could be isolated from what happens in the rest of the public sector.

How, therefore, should this issue be dealt with? Not, as I say, by requiring the release of a particular document originally written for a different audience. It would be better if the Information Commissioner had recommended that the Government should set in hand work involving the man known as HOTGAS-the head of the Government accountancy services-and the NAO, to create a framework of best practice on what should be provided in departmental reports, and what operationally should be withheld. It is normally the case that public accounting standards in the private sector have developed over time and the public sectors usually follow with a lag. The reporting of risk and of risk management is in my view the next area for improvement in the public sector accounts, and the role of the CAG should then be to police whether those principles are being followed. In the case of this Bill, I hope that the Minister can be as forthcoming as possible on what the risks are without creating any of the perils that I have indicated.

The Information Commissioner has made a decision so it goes to the tribunal, and the Government's case would be greatly improved if they were able to indicate that they supported the kind of initiative that I have suggested. Meanwhile, I hope that the noble Baroness, in the light of any assurances and further information from the Minister, will not press her amendment, but if she does I hope that the House will support the Government, on the understanding that the reporting of risk is the next issue to be advanced across public bodies as a whole.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Labour 4:00 pm, 7th December 2011

My Lords, I think we need to be clear that my noble friend Lady Thornton's Motion is simply for this House to express its regret. It is not a fatal Motion but an opportunity to express a view.

I have to say, and this is rare, that I disagree with the noble Baroness, Lady Williams; indeed, this may be one of the first times I have done so when not sitting where the noble Earl, Lord Howe, now sits. The whole purpose of the Information Commissioner is that he is charged with looking at the most delicate and difficult issues and seeking to come to a balanced view on whether the public interest points in one direction or another. It is clear that both parties have an opportunity to appeal if they disagree with him, but I hope that Members of this House, if they have had an opportunity to read the commissioner's decision, will have found it sound, well argued and balanced. So we have a well argued, balanced view from the Information Commissioner that he believes, having had the advantage of looking at the documents, that the risk register would enable this House to better scrutinise the Bill to the effect of helping us to make a better Bill for the people of our country.

I agree with those who say that this opportunity has to be sparingly used, and it is clear that the commissioner agrees. This will not open the floodgates, which it sounded as if the noble Lord, Lord Turnbull, was suggesting would happen if we agreed to this Motion of Regret. It is clear that the National Health Service is dearer to the people of our country than almost any other institution, so this touches every single citizen. Be they a baby or a person in their third age, it is of equal importance. If we compare it to the importance of the third runway at Heathrow, I hope that the House will think the NHS is a tad more important. Notwithstanding the difference in importance and, as my noble friend Lady Thornton made clear, the great reluctance from my own Government-it took over a year-we gave way, because it was right and proper to do so and there appeared to be an overwhelming public interest. If there was an overwhelming public interest in that case, how much more is there an overwhelming interest in this?

I suggest to the House that the noble Lord, Lord Pannick, is right that this goes to our power and ability to properly scrutinise the Bill. I therefore invite your Lordships to join my noble friend in gently saying to the much beloved noble Earl, Lord Howe, that this is maybe a moment when he has to take a message back to his department and say, "Can this not be released?". If it is as cogent, sound and well placed as the Government believe it is, surely that will only persuade those of us who have anxieties and assist in our scrutiny.

Photo of Lord Warner Lord Warner Labour

My Lords, I hesitate to intervene but it is a Motion of Regret, and one element of the regret the House would express would be regret for the position the noble Earl has been put in. Much of our debate so far on this Bill has been on the basis of how it would work in practice and how things would happen on the ground. I suspect there is a lot of information about how things would work in practice in the risk register. My concern is that the noble Earl is being put in a very difficult position and at risk of misleading the House-I am not saying he has; I am not saying he has not-as he has been put in a position where, because he is unable to use that information, he may be forced to hedge his bets to reassure the House on some of the practical issues. I hope that is not the case and he has not been put in that position, but we need to be sure and I hope he can give us some reassurances.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, the decision of the commissioner is certainly well argued, but under the existing system it is subject to appeal to the tribunal and the Department of Health intends to exercise the right to appeal. In that situation, in my submission, the Minister is entitled to give this House the best information he has. There is no question of failure to release this report in any way leading to the noble Earl, Lord Howe, misleading this House. I do not believe that is at all likely.

The noble Lord, Lord Pannick, developed a cogent argument, but the question he raises in relation to what is to happen here today is a different question from that which arises on the appeal. Unfortunately, although it is a different question, it is very closely related because, if the document is to be released now, the question of an appeal to the tribunal is evacuated because the document will already have become public, which is the issue in the appeal. Therefore, I believe that my noble friend Lady Williams of Crosby has suggested the best way out of this business: the Government and the other parties to the appeal should do what they can to have the appeal expedited. I do not believe that the tribunal is in any worse position than a court of law in getting on with the job quickly and that is the best course because if the tribunal endorsed the commissioner's decision then that solves the matter.

Photo of Lord Pannick Lord Pannick Crossbench

Would the noble and learned Lord agree that if the tribunal dismisses the appeal it would then be open to the Government to take the matter to the Court of Appeal?

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

Certainly. The Court of Appeal has a very great record in dealing with matters quickly.

Noble Lords:

There will be delay.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

Delay is something that the courts can control. That is one of the functions they have to try to do expeditiously when an expeditious judgment is required. I believe the solution proposed by my noble friend is the best one namely that an expedited decision should be sought from the tribunal.

Photo of Lord Richard Lord Richard Labour

I want to ask the noble and learned Lord a question. If there is an expedited appeal and it is going to run its course, does the noble and learned Lord think we should continue with this Committee stage or wait until we see the result of the appeal?

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

I assume that if the decision was available in time for the Report stage, the House would have ample opportunity to consider its relevance to the matters in issue in the Bill.

Photo of Lord Richard Lord Richard Labour

What would happen if it were not available at the beginning of Report stage?

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

I hope that it would be possible for the decision to be available at the beginning of Report stage.

Photo of Lord Martin of Springburn Lord Martin of Springburn Crossbench

My Lords, I have listened carefully to what all noble Lords have said. I was interested in what the noble Lord, Lord Pannick, had to say. He often advises me on legal matters, so perhaps he can advise me further. If the information comes to us as an open House, it will be public information. Therefore, to say that it comes before noble Lords means that it becomes available to everyone.

Noble Lords:

Yes.

Photo of Lord Martin of Springburn Lord Martin of Springburn Crossbench

That is fine. I am learning every moment. The amendment states that,

"this House regrets the Government's appeal against the Information Commissioner's ruling".

It makes no criticism of the Minister; there is nothing personal here. I am a trade unionist but I was formerly a full-time trade union official and also a lay magistrate for a very short time. My training taught me not to worry about the decisions that I made, whether they were judicial or semi-judicial, as there was an appeals procedure. The Government are exercising an appeals procedure. We go down a dangerous road if we criticise anyone-whether it be the Government or a private individual-for exercising an appeals procedure. An appeals procedure is a good, safe mechanism for everyone concerned. The wording of the amendment worries me because an appeals procedure is there to be used. The only thing I ask of the Minister is to say that it is being used as a mechanism for achieving clarity with regard to the Information Commissioner's decision rather than as a stalling mechanism to prevent the Opposition getting the information. If the appeals procedure were being used as a stalling mechanism, I would feel aggrieved as that would be the wrong thing to do.

I do not think that anyone can brag about the Heathrow decision. It took a year to release the information so there is nothing to brag about. The Government have greatly encouraged the appealing of information commissioners' decisions on other occasions and there were many occasions when the previous Government did not want to abide by an information commissioner's decision. I do not know much about the risk reports that are being discussed but I understand that they constitute officials' information given privately to the Minister concerned. If I am wrong, noble Lords will correct me. I was never a Minister but former Cabinet Ministers are present and the noble Baroness who moved the amendment is a former Minister. I would be deeply concerned if officials were unable to give information or advice in writing in the privacy of a Minister's office in case it was deemed to constitute data which had to be produced in the public domain. If that were the case, officials would not provide that information. I worry about that.

I know how important the National Health Service is. Like many others in this House, I was brought up in a household where I was taught to appreciate the National Health Service. However, this has implications for advice given by officials to Ministers. As I say, I am worried about the implications for that advice.

The amendment uses the word "regrets". It is a serious matter to me to express regret and to put it in terms of a Motion before the House. Let us not kid ourselves about the Information Commissioner doing a nice balancing act, looking at both sides and weighing up the public interest and the Government's interest. All too often, the Information Commissioner has said that it is in the legislation and therefore it is going into the public domain no matter what the consequences are. If there had been a wee bit more work put into the legislation years ago, we might not be standing here today concerning ourselves with an Information Commissioner's decision.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour 4:15 pm, 7th December 2011

My Lords, a number of Members of the House have suggested alternative ways forward. The best suggestion came from my noble friend Lord Richard. He made the perfectly reasonable suggestion that the Report stage be deferred until we get a ruling on the appeal. I am a mere mortal Back-Bencher, making the offer on behalf of colleagues, but I would imagine that my own Front Bench would support that proposition. Why do we not simply defer it? It is a perfectly reasonable suggestion. The Government will get their way and we will get our way in the sense that we will then be informed when we get to the Report stage of the Bill.

In reality, what is happening today is that the Government are simply using an appeal procedure to delay, knowing this will ensure that certain issues, which should be freely discussed on the Floor of the House during the course of consideration of the Bill, are not going to be discussed. It may be worth noting the comments of Justine Greening when she experienced similar problems under, regrettably, the previous Labour Government. These are her words:

"The DfT's refusal to release the register until ordered by the Commissioner"- which we subsequently did, of course-

"shows that Ministers have truly lost all integrity on being open with the public they are there to serve".

If that was the attitude taken by the noble Earl's colleagues at that time, why should it not be our attitude today? Perhaps in the light of Justine Greening's comments at that time, he may wish to reconsider his own position on these matters.

Photo of Lord Richard Lord Richard Labour

My Lords, I am very grateful to my noble friend Lord Campbell-Savours for supporting my earlier remarks. Perhaps I may expand on them briefly. This is a very strange situation. It is not one that I have ever come across quite in this way before. There is evidence which is, at least prima facie, relevant. Everyone seems to agree that it is relevant to consideration of the Bill. Indeed, as far as the Information Commissioner is concerned, it is not only relevant but disclosable. That is a fairly strong basis on which to start our consideration of what we do about the Bill. If there is a chunk of evidence which is relevant to the Bill, and if that evidence is prima facie disclosable, it is somewhat wrong for the Government to crack ahead with the whole thing while the issue of disclosure of that piece of evidence remains up in the air. If one could expedite the appeals-I am bound to say, as a former practising barrister, that it does not always happen that appeals are expedited in the way one hopes-and therefore get the appeals procedure out of the way before Report stage starts, that would be a sensible way of proceeding.

On the other hand, if you do not get the appeals procedure out of the way, you have to look at the other side of the balance, which is that if the appeals procedure is not out of the way and this issue remains live, the Report stage should not start until after the appeals have been determined and after there has been a firm judicial decision, one way or the other, as to whether or not the Information Commissioner's opinion on disclosure of this evidence is right. It is a strange position, but the evidence is clearly relevant and, according to the Information Commissioner, prima facie, disclosable. There are also precedents that this type of information should be disclosed. Therefore, it seems to me that it would be wrong just to crack ahead with the Bill as if this issue did not exist.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I hesitated over whether to intervene, but I feel that I should comment as a clinician. There is enormous concern out there in the clinical services, particularly over transition as the changes come through. There are all types of risk registers and many of them deal with financial and livelihood matters, but the problem is that this issue relates not to livelihoods but lives. People are really concerned that they will not be able to treat critically ill patients in the way that they know, and in the way that the evidence informs them, if we do not get the transitional arrangements correct. That is why there is so much strength of feeling behind the need for access and the need to know where the major risks that have been identified are. Assurance needs to be given through this House to the public at large that action has been taken to deal with the major risks that may be exposed in the risk register.

This is a Motion of Regret. It is nothing more than that. It does not alter the course of the law, and many suggestions have already been made to the noble Earl. I should emphasise that this debate in no way undermines the confidence of either this House or the profession outside in the integrity of the noble Earl, Lord Howe. That is completely intact and not under question. The anxiety relates to what is not being disclosed and what is not being dealt with and, therefore, who is actually being put at risk.

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

My Lords, as the House will recall, I have made clear on earlier occasions why the Government do not believe that it is appropriate to reveal the details of my department's risk registers. This decision was made not solely in consideration of the current Bill but in the wider context of government. It is important for me to emphasise that.

However, in addressing the noble Baroness's Motion, it may be helpful to put the issues that she has raised into the broader context of the Freedom of Information Act. The overriding aim of the Act is to maintain a balance between openness and confidentiality in the interests of good government. Openness is an intrinsic part of good government and is a principle that I and my fellow Ministers firmly believe is important. At the same time, it is equally important to acknowledge the need for a safe space when formulating policy and the associated risks. Those noble Lords who took part in the debates on the FOI Bill will recall the clear position taken by Ministers of the day about where that balance should be struck in relation to the workings of government. It was made clear that the Act was not intended to change the way that the Government conduct their business by requiring all their deliberations to be made in public. Some element of confidentiality must remain for the proper and effective conduct of that business.

Ministers and civil servants need the space to be able to consider the worst risks-even to broach quite unlikely risks-and to do so openly and frankly, without the threat of disclosure. Without this safe space for open and frank risk assessment, the registers would be in serious danger of becoming anodyne documents and their purpose would thereby be significantly diluted. That is why information relating to the formulation or development of government policy is explicitly exempt from disclosure under the Act. There is also an explicit exemption for information that would inhibit, or be likely to inhibit, the free and frank exchange of views for the purposes of deliberation.

It is my department's very clear view, and the view of other government departments, that departmental risk registers of this type and nature should be treated as being exempt from disclosure. That was also the view taken on several occasions by health Ministers in the previous Government. I say to the noble Lords, Lord Pannick and Lord Martin-I was grateful to the noble Lord, Lord Martin, for his remarks-that the Government have no wish to be discourteous or obstructive to this House. Quite the opposite.

We are absolutely not using the right of appeal as a delaying mechanism. The department has published and discussed its proposals for reform at every stage of the process; we have debated them at length in both Houses; it has released some detail about the associated risks and what it is doing to address them in its impact assessments. In response to the noble Baroness, I myself have provided the broad issues covered by the risk register in my Statement of 28 November. Incidentally, that Statement was meant to be complete. I assure the House that in taking forward the Bill, no further risks are identified on the register that would fall outside the list of broad issues that I provided. I am therefore satisfied that I have not misled the House as a result of the Government's decision to appeal.

I am very grateful to my noble friend Lady Williams for her suggestion that the case should be expedited. I am as keen as anyone to see the matter speedily resolved. As my noble friend knows, she and I discussed this yesterday privately and I have since pursued the matter actively with my officials. I should say, however, to place my noble friend's suggestion in context, that since we met, the solicitor acting for the Information Commissioner has requested an extension of time to file the commissioner's response to our appeal notice and has indicated that the appeal raises issues of considerable importance that will require the tribunal's normal target time for listing an appeal hearing in order for the case to be properly prepared.

I should also make clear a further point. For our part, as the House knows, we take the view that this case raises an important matter of principle for the Government as a whole. We took the decision that we have taken after very careful thought and discussion. Now, the burden is on us as appellants to provide accurate and pertinent evidence to the court to support our case. In preparing that case, we need to consider and consult across various parts of government, as indeed we consulted about our decision to appeal. It is obviously important that we have the necessary time to prepare and carry out those consultations. We have not asked for more time, but I suggest that we need enough time.

I completely understand and sympathise with the desire of my noble friends to see the matter resolved, and I undertake to use my best endeavours to pursue the suggestion so helpfully made by my noble friends Lady Williams and Lord Clement-Jones. The decision to appeal the Information Commissioner's ruling has not been taken lightly, but we have taken it because we believe that the commissioner has not given sufficient weight-

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

Can the Minister give us some times here? How long is it going to take? When does he expect to have the tribunal sit? He keeps saying that it will take time to prepare and to do this, but I think that we need to know how long that will be.

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

Having anticipated that question before this debate, I made a point of asking but I am afraid that I do not have a definite answer to give the noble Baroness at this stage. As soon as I am able, I would be delighted to do so.

Our appeal is based on the belief that the commissioner has not given sufficient weight in his judgment to the considerations embodied in the relevant provisions of the relevant FOI Act. As the noble Lord, Lord Butler, made clear on 28 November, the ruling has serious implications across government in the precedent it sets for all risk registers.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

The noble Earl said that he could not give us an idea of the timetable, but he does have something under his control: he has control of the timing of Report. He could say, "We will defer Report stage until the appeal result". Why does he not just do that?

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

The noble Lord knows that that is a matter for the House and the usual channels and not for me. However, I have no doubt that his suggestion will be registered in the appropriate places and will be considered. He must understand that it is not solely in my gift to order the business of this House.

I am of course acutely aware of the concerns of noble Lords on this issue. However, I would just ask those noble Lords who may at first blush be inclined to side with the noble Baroness in her amendment to recognise that there is room for an honestly held difference of view on this matter, that the principle involved is very important for the workings of government and that the Government have acted both properly and reasonably in asking the Information Tribunal to reconsider the merits of the case.

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

My Lords, I thank noble Lords for this very illuminating and important debate, and I feel the weight of that importance. I think that the Minister would admit that over the past four weeks we have been very measured in our approach to this issue. We have not rushed at it; we have not sought to delay the Bill; and we have been very measured and patient in trying to work out the best way forward.

I thank the noble Lord, Lord Pannick, my noble and learned friend Lady Scotland and my noble friend Lord Richard and others for their support on this. I also thank my noble friend Lord Richard for crystallising the point that we should not proceed to the next stage of the Bill until we have the results of the appeal, and perhaps that would concentrate minds. In that context, I think that my amendment, which is a regret Motion, will help.

The noble Lord, Lord Clement-Jones, spoke about a chilling effect. I found the remarks of the representative of our former Permanent Secretaries in the House, the noble Lord, Lord Turnbull, interesting but possibly not to the point. The Freedom of Information Act may need reforming but that is not the point of my regret Motion. Particularly in response to the noble Lords, Lord Clement-Jones and Lord Turnbull, I should like to quote to the Committee from "Yes Minister". This is from episode one of the first series and is about open government. Bernard, who noble Lords will all remember is the Private Secretary, says:

"But surely the citizens of a democracy have a right to know".

Sir Humphrey-or maybe we should call him "Sir Andrew"-says:

"No. They have a right to be ignorant. Knowledge only means complicity in guilt; ignorance has a certain dignity", although it is not dignity that I would particularly welcome.

I confess that I am disappointed by my colleagues on the Liberal Democrat Benches. I was here with them in the Chamber fighting for the Freedom of Information Act all those years ago, and I know that they would have liked my Government to have gone even further than we did. Therefore, it is a matter of regret and disappointment that they are not joining with us in saying that the commissioner's ruling is a good and measured ruling, that it takes account of all those issues and that this information should be made available to the public and, indeed, to the House.

Finally, the question is very simple. It is not about the appeals tribunal, and the noble Lord, Lord Pannick, was right. It is about how this House amends legislation to make it good legislation, and it is an amendment to regret the fact that we are not being given the information that we need to help us in that job. It is a very mild rebuke-it is an amendment expressing regret. It is a regret that we cannot do that job because we need this information. My view on that has not changed as a result of this debate. I feel enlightened by this debate to a certain extent and think that we may see a way forward. However, we need to regret the fact that we do not have this risk register, and I wish to test the opinion of the Committee.

Division on Baroness Thornton's amendment

Contents 195; Not-Contents 248.

Amendment disagreed.

Division number 1 Health and Social Care Bill — Committee (11th Day)

Aye: 193 Members of the House of Lords

No: 246 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Motion agreed.

Clause 49 : Secretary of State's duty to keep health service functions under review

Amendment 240

Moved by Lord Warner

240: Clause 49, page 83, line 3, after "review" insert "the cost and"

Photo of Lord Warner Lord Warner Labour 4:48 pm, 7th December 2011

My Lords, in moving Amendment 240, I shall also speak to Amendment 242 in this group in my name and that of the noble Lord, Lord Patel.

Amendment 240 inserts the words "cost and" before "effectiveness" regarding the exercise of functions by various bodies that the Secretary of State must keep under review. The NHS faces an unprecedentedly long period of having to survive on short financial rations. This is now likely to extend at least two years after the 2015 election, if we are to believe the Chancellor's utterances last week on the public finances and deficit reduction. The NHS has never delivered in any one year of its history the productivity and cost-saving requirements set by the £20 billion Nicholson challenge, which is to be produced at least four years on the trot. Most informed commentators expect a financial crisis of some kind in the NHS in the next few years, so the reality is that the Health Secretary will have to keep under close review the expenditure and costs of all the bodies listed in Clause 49. The Government should face up to this reality, in my view, as the Chancellor seems to want us to, by adding the words in Amendment 240 to the Bill.

Amendment 242 is another part of that reality checking of the NHS in the Bill. On earlier amendments I raised my concern about keeping in check the overheads and management costs of the national Commissioning Board and clinical commissioning groups, and was duly told that these were not necessary. I acknowledged then that my amendments were probably not framed as they should be. However, I am returning to this issue with Amendment 242, which requires the Secretary of State to report annually to Parliament the administrative costs of the bodies listed in Clause 49, together with the percentage of the NHS budget they represent and their percentage increase over the previous year. If the Secretary of State is doing his or her job properly, they should have this information available to them and be monitoring it closely, especially in the financial climate the NHS faces over the coming years.

We know from history how, left to their own devices, bureaucracies can expand their remits and resource consumption. Ministers never like to own up to this happening on their watch. To improve the prospects of keeping Ministers and, if I may put it this way, these big NHS beasts on the financial straight and narrow, it would be extremely helpful if the Bill required the reporting of administrative costs and their movement over time to Parliament once a year. I hope the Minister can be constructive about accepting such an amendment as it in no way challenges the Government's reforms. I beg to move.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

My Lords, I have two amendments in this grouping and, lest I be drummed out of the Brownies, I would like to explain that there is a typo in the Marshalled List. It should read not "detailed merits" but "detailed remits". As noble Lords will appreciate, there is a great difference, and I do not need any persuasion as to the merits of this Bill.

The purpose of my two amendments is to be probing; I am really just seeking clarification. The Future Forum was very widely welcomed by most people, but it further complicated the new proposals in the Bill regarding how we are to organise and manage the NHS. After years of being dictated to and micromanaged, there is a real risk of paralysis, and this at a time when commissioners need to reach decisions and be truly radical.

As I understand the proposed structure, the national Commissioning Board and clinical commissioning groups will be supported by clinical networks, clinical senates, commissioning support organisations and health and well-being boards, which will work in partnership with them. In addition, we have a new public health system, which we debated last Monday, with the creation of Public Health England and the establishment of HealthWatch England and Local HealthWatch to try to improve patient and public involvement. This has the potential to cause confusion and duplication if the Government are not clear about the accountabilities, roles and responsibilities of these different organisations. I would like to take a very serious example: it is still unclear who will take the lead on the commissioning of specialist doctors and nurses responsible for safeguarding children within the NHS.

At a national level, the movement from a single department of state to a more dispersed range of organisations, including the national Commissioning Board, Public Health England, HealthWatch England, Monitor and the Care Quality Commission, could have a similar effect. The danger is that the NHS could find itself in paralysis at just the moment that it needs to make key decisions that are crucial for the sustainability of parts of the service. In particular, some of the important decisions on potential service reconfigurations are urgent if the NHS is to meet the Nicholson challenge and at the same time fulfil its commitment to high quality and safe services to patients.

It is still unclear to me, and I know that it is to some others, how the respective responsibilities and accountabilities of commissioners, providers and regulators for quality are intended to work together. We also need to ensure that additional complexity does not result in an increased administrative burden or financial cost, as the noble Lord, Lord Warner, has said, falling on healthcare organisations. I think that my noble friend gave an undertaking on that on Monday but further clarification would be welcome.

Because of these concerns about the complexity of the new structure, I am asking the Minister if he could look seriously at this issue; go beyond the organograms and design detailed remits and powers for all those in the system to minimise confusion, gaps and duplication; and be as clear as possible at the outset as the reforms are implemented, while at the same time keep under review and address any confusion, gaps and duplication between the components in the system. Change is always a challenge. The more we can reduce muddle and confusion from the outset, the more successful these reforms will be.

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, I have a number of amendments in this group which concern the duty of the Secretary of State to keep health service functions under review. This is an important provision. I note that on what will probably be the last day in Committee, we have Amendment 354, which relates to a requirement on the Secretary of State to publish a report which can then be debated by Parliament. Although it is not grouped with this amendment, it is highly relevant to it.

It would be helpful to know from the Minister just how these matters are going to be monitored and how adjustments can be made in the light of experience. As my noble friend Lord Warner suggested, although we are not going to be allowed to see the risk register-I am very doubtful that we will see it before the Bill has passed through your Lordships' House-we know that considerable risks will come with these changes. The noble Baroness, Lady Cumberlege, spelled out some of the key issues that we face. The last thing that the health service needs is a massive reorganisation. Clearly, there are risks and it is right that there should be a regular review by the Secretary of State.

It is also right that the Secretary of State, when reviewing the operation of the changes, reviews all parts of it. I am extremely puzzled by Clause 49 concerning the duty to keep under review. The Bill sets out the bodies to be reviewed. They are the NHS Commissioning Board, Monitor, the Care Quality Commission, the National Institute for Health and Clinical Excellence, the Health and Social Care Information Centre and special health authorities. There is no mention of the plethora of bodies that will exist in the new system. There is no mention of clinical senates, the local field forces of the NHS Commissioning Board or health and well-being boards. Quite remarkably, there is nothing about clinical commissioning groups. Perhaps the noble Earl could tell me why the effectiveness of the CCGs is not to be kept under review?

Perhaps I have misread the Bill and this will be done in some other way. But I find it remarkable that this Bill is built around GPs and clinical commissioning groups, which are untried and untested, yet they are not to be kept under review. Looking at the architecture of this Bill, one begins to see very tight control of most of the health service but when it comes to clinical commissioning groups, issues of corporate governance, conflicts of interest or any of the other matters, it is incredibly light touch. It is as if we are to believe that, somehow, this part of the reforms is believed by the Secretary of State to be so remarkably able to carry out its duties that very little monitoring, performance management or review is to be undertaken. I would be grateful to know why clinical commissioning groups in particular have been left out of this list.

Amendment 243A concerns the annual report. In Clause 50 we see a requirement on the Secretary of State to publish an annual report on the performance of the whole service in England, which must be laid before Parliament. That, of course, is welcome. But my amendment asks that the report should include a statement on progress towards reducing relevant inequalities, on integration of services, on waiting time performance, and on health outcome performance. No doubt the noble Earl will argue that it is a list, and that the Secretary of State's annual report is bound to cover these matters.

However, we are in new territory when it comes to specifying matters in the Bill. We are told that the Secretary of State is stepping back from involvement in the National Health Service, and that we should not worry about that, because there will be a mandate, and a constitution. All will be well. Those of us with some experience in these matters are rather doubtful as to whether that is sufficient in terms of accountability. In that context, it is right for Parliament to set out some details which we would expect the Secretary of State to report annually. Of course, there may well be other matters which one would wish the Secretary of State to report on, but my four areas cover some of the main points.

Amendment 245B relates to the intervention orders under the 2006 Act. I would be grateful if the noble Earl would confirm whether those intervention orders apply to the NHS Commissioning Board and clinical commissioning groups. If they do not, perhaps he could explain why not?

Amendment 245C deals with liabilities and the Secretary of State's responsibility in relation to NHS organisations. Again, could the Minister confirm whether this duty applies to the NHS Commissioning Board and to clinical commissioning groups?

Amendment 245ZA relates to the general power of the Secretary of State. In page 289, line 30, the Government seek to dissipate the general power of the Secretary of State, as is currently set out in Section 2 of the 2006 Act. I realise that this takes us back to the crucial debate we had on day 1 about the powers and duties of the Secretary of State. The Explanatory Note which relates to this says that the reason for changing the wording is because there is no longer a duty on the Secretary of State to provide services. Given that those matters have been, in a sense, put to one side, is this part of the package that is being looked at, because it does relate to the general powers of the Secretary of State?

My noble friend Lord Warner made some very apposite points which I certainly support, and I was very interested in the remarks of the noble Baroness, Lady Cumberlege. I had been agonising about her amendments, and she has very helpfully clarified a point for all of us. She has really put her finger on it. I am disappointed that she did not take part in our debate at our last sitting ,when we discussed the complexity of the new arrangements.

We were promised a streamlined approach. What we have got instead is a highly complex set of arrangements. The NHS Confederation has expressed its concern about their complexity. I therefore like the amendment of the noble Baroness, Lady Cumberlege, that asks the Government to try to clarify for us who on earth is responsible for what in the new system.

When it comes to the key issues of the reconfiguration of specialist services and of funding, someone out there is going to have to hold the reins. Some agency or body is going to have to sort the problems out. It ain't going to be the clinical commissioning groups. They are too small and they will not be able to do it, so someone else will have to. Is it going to be the clinical senates, or are we going to have to rely on the local government health and well-being boards, or will it actually be the local offices of the NHS Commissioning Board? I know that it will be the local offices of the NHS Commissioning Board. If that is so, we come back to the fact that that is patently going to be where the power is, and surely they ought to be made accountable. That is why I had an amendment down on our last day in Committee to turn them into statutory bodies. I detected a modicum of sympathy around the Committee, but not much more than that. However, the noble Baroness, Lady Cumberlege, as a distinguished former regional health authority chairman, knows that when we had the RHAs it was they that, in the end, had to intervene and sort problems out. There needs to be some sort of agency to do that in the future, and I think we should be told.

Photo of Baroness Murphy Baroness Murphy Crossbench

My Lords, I had not intended to intervene but I have been stimulated to do so by the noble Lord, Lord Hunt of Kings Heath. The model being described of the Commissioning Board and its regional offices-the outposts-is very similar to the model that functions rather well for universities. There is the Higher Education Funding Council for England, which is centralised but also corporate with all its regional offices. The vice-chancellors, who you might say are the chief executives of the local organisations, relate directly to HEFCE. However, the regional executive officers are there to act as a moral support and a conduit. They do not necessarily sort out problems, but at least they are aware of them and know which areas the central body ought to be looking at. That is not so different from the way the regional officers from the Department of Health worked during the time of the district health authorities, between 1983 and 1990. If it is well done, and it has certainly functioned well for the duration of HEFCE, then it seems to me that it is a model which can be built on and developed. Is not that the way the problems the noble Lord is talking about will be resolved?

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)

I am grateful to the noble Baroness for her helpful intervention and I fully accept what she says. I want to make two points. First, we need an acknowledgment by the Government that there is going to be a kind of intermediate tier that, in the end, they can turn to when there are problems-if CCGs cannot work out a strategic approach or if reconfiguration is not taking place, as well as all the things that arise in the health service generally. My second argument is that I believe the health service is somewhat different from HEFCE in that it touches everybody, and the kind of issues that this intermediate tier will intervene on are likely to concern the public much more. There is then a case for making the intermediate tier a statutory body. Essentially there are two points here. I certainly agree with the noble Baroness about the importance of a helpful enabling intermediate tier which occasionally needs to intervene.

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

My Lords, as I have observed on earlier occasions, I believe that this Bill increases Ministers' accountability for the health service through a range of mechanisms. However, perhaps I may begin by saying to the noble Lord, Lord Hunt, that I agree that the Secretary of State's annual report is an important mechanism through which he will account for the system. I am sympathetic to the objective behind Amendments 243 and 243A, which seek to specify areas for inclusion in the Secretary of State's annual report, but I can reassure noble Lords that I expect to see mention of areas such as the reduction of inequalities set out in the report, as these issues are the foundation of a high-performing health service.

The Bill also sets out extensive powers of intervention in the case of failure, which are essential if Ministers are to be able to retain ultimate accountability for the health service. The intervention powers in the Bill are specific to the organisations to which they apply, which is the issue covered by Amendments 245B and 245C. With that point in mind, I believe that the powers set out by the Bill strike the right balance, enabling appropriate freedom for NHS bodies while ensuring that the Secretary of State can intervene in the event of their failure.

The Secretary of State's duty of keeping performance under review only applies to national arm's-length bodies. It does not refer to CCGs. The noble Lord, Lord Hunt, questioned why that was. We think that is right; however, the CCGs will very definitely be kept under review. The Bill sets out a robust process for the board to hold CCGs to account and sets out extensive powers for the board to keep the performance of CCGs under review and to step in where they are not performing.

The noble Lord also queried why there was no mention of a range of other bodies, such as senates and field forces. The answer is that they are part of the NHS Commissioning Board, which is specifically mentioned. As regards health and well-being boards, as the noble Lord will know, we intend them to be part of local government. I do not think local authorities would take very kindly to the Secretary of State for Health keeping them under review.

There are also a number of amendments in this group that are concerned with the transparency and accountability of arm's-length bodies, such as the amendments of the noble Lord, Lord Warner. Much like the Secretary of State's annual report, each arm's-length body's annual report and accounts must be laid before Parliament. I simply remind the Committee that all ALBs are under a duty to exercise their functions effectively, efficiently and economically, and the Secretary of State is required to keep under review how effectively they are exercising their duties and functions.

Finally, I turn to co-operation between the bodies in the system. The Bill sets out a formal duty on each organisation to co-operate, and the department will hold organisations to account for the way they work with each other, not just how they perform their own functions. As regards Amendments 240A, 243ZA, 350 and 351, I hope I can reassure noble Lords that, through these two routes, the department will work to ensure that duplication is prevented and gaps do not emerge. If the Secretary of State believes that the duties of co-operation are being breached or are at significant risk of being breached, he will be able to write formally and publicly to the organisations. If the breach is significant, sustained and having a detrimental effect on the NHS, the Secretary of State will have a further ability to lay an order specifying that the organisation should take certain actions only with the approval of another specified body, other than the Secretary of State himself.

Amendment 245ZA looks to reinstate a power at Section 2 of the National Health Service Act 2006, which would enable the Secretary of State to provide services. We believe that the role of the Secretary of State should be one of oversight, direction-setting and intervention when organisations are failing. We have had many hours of valuable discussion on this topic; so while I fully understand the various concerns raised by noble Lords, I remind the Committee that all sides of this House have agreed to a process of engagement and discussion on this subject. The noble Lord, Lord Hunt, asked specifically in relation to this amendment whether this issue was covered by that process. The Clauses 1 and 4 process, as I call it, is considering the issue of the Secretary of State's accountability for the NHS in the round rather than specific clauses in the Bill; so, yes, this would be covered by that process.

I hope that I have provided enough detail on these clauses to enable the noble Lord to withdraw this amendment.

Photo of Lord Warner Lord Warner Labour

I wonder if the noble Earl could enlighten me, and indeed the House, on the story that is trailed in the Times today that the Secretary of State is going to have 60 benchmarks or indicators-which some of us would think looked like 60 targets. Are they going to be a key part of his process of keeping performance under review? Will he give the House a little more flavour of what that is going to mean?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 5:15 pm, 7th December 2011

My Lords, that story in the press was about the outcomes that the Secretary of State is proposing should form the basis on which the health service is held to account. It is likely that the outcomes framework will form part of the annual mandate. These are proposals which we are hoping for comment upon. Therefore the answer to the question of the noble Lord is that the health service-I am not talking about the ALBs other than the board, but the National Health Service Commissioning Board-will be held to account against those outcome measures.

Photo of Lord Warner Lord Warner Labour

My Lords, I have listened very carefully to the Minister. I am disappointed that he cannot agree to put something more specific in the Bill about administrative costs. I am concerned about those getting out of control, when the NHS faces a very difficult set of financial challenges. However, I hear what he says. We may want to come back to this at a later stage, but in the mean time I withdraw the amendment.

Amendment 240 withdrawn.

Amendments 240A to 243A not moved.

Clause 49 agreed.

Clause 50 : Secretary of State's annual report

Amendment 244

Moved by Lord Warner

244: Clause 50, page 83, line 23, at end insert "and its integrated working with adult social care services"

Photo of Lord Warner Lord Warner Labour

My Lords, I have deliberately grouped these two amendments so that we can have a proper debate about the role of social care in this Bill-after all, it has "social care" in its title-and, indeed, about the associated issue of the importance of integrating health and social care, on which we have touched on a number of occasions in the Bill so far.

As I said in our recent debate on the Dilnot commission report, secured by my noble friend Lady Pitkeathley, we need to consider whether this Bill is a suitable vehicle for progressing implementation of that report. Here I should declare my interest as a member of the Dilnot commission. First, I shall make some remarks on the growing crisis, if I may put it that way, in social care and the implications of that crisis for the NHS and patients, particularly as, despite the extra money the Government have provided for social care in the spending review-I commend the Government on that-we still face a £1.2 billion shortfall by 2014, according to the King's Fund.

The NHS and social care are in a symbiotic relationship with each other, in that what happens in one sector can have a profound effect on the other. That is what is happening now. The current problems have their roots in the past. Both sectors face the challenge of a service response to an ageing population. The fact that we live longer is, of course, something to celebrate, but it does have consequences for health and social care. By 2030 there are expected to be £2.5 million more people aged 75 or over. The current 1.5 million over 85 will double in the same period. The number living with dementia in the UK is expected to reach 1.4 million by 2040. We have nearly 18 million people living with long-term conditions that require treatment and care, but not necessarily in hospital. Getting the balance right in the resourcing, co-operation and delivery of services between the NHS and social care is critical to the quality of care and quality of life for this ageing population and for the cost to the taxpayer of those two services.

What is clear is that doing nothing and letting the current system carry on is not really an option. For example, the King's Fund has shown that even if we do nothing to the current inadequate adult social care system, its cost will rise from £6.7 billion in 2011 to £12.1 billion in 2026. In that situation, the eligibility criteria for social care will get tighter and tighter, despite the extra expenditure, and the pressures on the NHS will increase as social care is unable to cope. Both systems need rebalancing and improved integration between the two.

However, they do not start from the same position. Since 2003-04, spending on social care has increased by 19 per cent in real terms, which is half the rate of increase in NHS spending in England over the same period. Despite this increase in spending on social care, access to state-funded services has reduced. In 2005-06, 60 per cent of local authorities restricted their service eligibility threshold to those whose needs were substantial or critical, leaving those with low or moderate needs to fend for themselves. By 2010-11, that 60 per cent had risen to 82 per cent of local authorities. As local authorities try to balance their budgets, they have cut the price they pay to providers, with a consequential impact on the quality unless they can persuade a growing number of self-funders to subsidise the care of those who are funded by the state. The impact has meant increasing burdens on informal carers, whose health is often not of the best, and rising costs in the NHS. Perversely, we can now end up with the taxpayer spending £3,000 a week to care for an 85 year-old in the medical ward of an acute hospital when they would be better off in a medically supervised £1,000-a-week single room in a nursing home.

At the heart of this problem is that social care simply does not have the standing of the NHS. If we are to improve social care and its integration with the NHS for the benefit of service users, we have to improve that public and political standing and realign the financial balance between the NHS and social care. I suggest that a good starting point for that would be the statutory duty placed on the Secretary of State. Leaving aside our current dispute over the precise wording of Clause 1, the Bill as it stands gives the Secretary of State the clear duty, which he has had for a long time, to promote a comprehensive health service designed to improve the physical and mental health of people and the prevention, diagnosis and treatment of illness. There is nothing equivalent to that duty in relation to the NHS for adult social care.

In subsection (1) of my new clause in Amendment 260DA, I have tried to even things up a bit by placing a clear duty on the Secretary of State to secure continuous improvement in the quality of social care services. This would mean that, when considering his priorities in relation to health and social care, the Secretary of State would have to consider securing a proper balance between both sectors. I suggest that both will face similar demographic challenges and careful consideration would then have to be given to how to allocate resources and priorities between the NHS and adult social care.

The rest of Amendment 260DA is intended, if I may put it this way, as a helpful encouragement to the Government to use the Bill to secure the legislative framework to implement the ideas in the Dilnot commission's report but without the Government, at this stage, committing themselves to the precise financial figures in our report or the timing of implementation. The Government would be able to consider the responses to the consultative process that closed last Friday and prepare their White Paper in the spring as they are proposing to do. The amendment would remove the need to worry about whether they would have a piece of legislation on this subject in the next Session. I have to say that a number of us, both inside the House and outside, have a fair degree of scepticism about whether that Bill will actually happen.

There is widespread support for the direction of travel pointed to by the Dilnot report, with widespread consensus among stakeholders that this is the road we should tread if the finances of adult social care are to be placed on a more secure footing over time. It is no purpose of mine today to go into the detailed merits of the Dilnot commission's report. However, I would like to hear, especially from the Liberal Democrats who have been supportive in this area, whether they support moving forward swiftly as many of us do. What I should make clear is that I regard subsection (1) of Amendment 260DA as standing on its own merits irrespective of the Government's attitude to using this Bill to create a legislative framework for implementing Dilnot. I cannot say that my optimism on that aspect is all that great. However, I hope we can secure support across the House for inserting something in the Bill along the lines of subsection (1) so that when the Bill leaves this House there is a bit more equilibrium between the duty placed on the Secretary of State in relation to the NHS and that placed on him in relation to adult social care. I am not wedded to the precise wording of my amendment but I hope we can actually secure some cross-party consensus on the need to put something that follows the spirit and thrust of that subsection into the Bill before it leaves your Lordships' House.

Amendment 244 simply requires the Secretary of State, when he publishes his annual report on the NHS, also to report on the health service's integrated working with adult social care. This is such an important part of how the NHS will work in the future, particularly with the financial challenges that are faced, that I believe we should make specific reference to it in the Bill. I hope the Government agree. I beg to move.

Photo of Baroness Pitkeathley Baroness Pitkeathley Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, my name is attached to Amendments 244 and 260DA. I want to emphasise how vital integrated working is from the point of view of the patient. Most patients, especially older ones or those with a long-term condition, do not experience either health or social care but some kind of combination of both-combinations that fluctuate according to variations in their condition.

This, as we have been reminded, is a Health and Social Care Bill yet the Committee debates thus far have not reflected the experience of patients and their families but have been very focused on acute care and the role of hospitals. I am delighted that consideration of these amendments gives the Committee the opportunity to focus more acutely-no pun intended-on the social care aspect of the proposed legislation. I strongly support the call for social care provision to be subject to annual review. I remind the Committee of the multifaceted nature of social care-residential care, home care, respite care and increasingly tele-care-and of the range of providers such as private, voluntary and social enterprises. Many of these services are facing huge challenges because of increased demand and reduced resources so it is clearly vital that a review is carried out regularly and I can see no reason why the Government should not agree to this amendment.

Amendment 260DA focuses on setting standards and improving quality in adult social care. I think there is general agreement that the current social care system is not fit for purpose. It was set up originally for a country in which men died at the age of 66, shortly after retirement, and women died before they were 70. The new statistics which show, for example, that 11 million people alive today will live to be 100-I suggest that the Queen will run out of telegrams-are, as my noble friend has reminded us, a cause for celebration, as is the fact that so many more people are living not only longer but with greater degrees of disability. This means that we are spending inadequate amounts of money on care and support, both publicly and privately, and have been doing so for some time. Social care funding has totally failed to keep pace with demographic change. Since 2004, while spending on the NHS has risen by £25 billion, spending on social care rose by just £43 million; that is 0.1 per cent per year in real terms.

As my noble friend has reminded us, to cope with rising demand and static resources, councils have increased charges for care services and rapidly raised eligibility criteria, with the percentage of councils providing support to those with moderate needs decreasing from 50 per cent in 2005 to only 18 per cent in 2011 as eligibility criteria are raised to cover only those with substantial or critical needs. This has been compounded by recent local government spending reductions, with directors of adult social services reporting £1 billion-worth of cuts to services in 2010-11, and warning that the same level of cuts or even greater ones will have to be made next year. Our public provision is largely seen as providing poor services for poor people. There have been several examples of this in recent months, most notably the report from the EHRC, which was so notably led by the noble Baroness, Lady Greengross.

In considering how difficult the situation is with regard to social care services, we should never forget that a lot of good work is being done within the system because of the dedication and skill of thousands of people who work in it. These workers and their agencies have had some success in recent years looking at the personalisation of services and promoting independence and even early intervention. There are pockets of great service to be admired and we should always remember that, but in general the care and support system is perceived to be: starved of cash; failing to meet the volume of need; unfair; and a lottery, especially for people with middle incomes in that if you die neatly without needing to use care services, you pay nothing, whereas if you become disabled though a long-term illness or you have Alzheimer's, for example, you may need expensive services at full cost for many years, involving thousands of pounds-even hundreds of thousands of pounds-so people who have a home and modest savings are hit very hard.

The system is also extremely confusing, difficult to find your way around, different in different parts of the country and not portable when you change location. Moreover, the caring families-the informal carers, as my noble friend referred to them-as well as the individual who needs care, suffer at the hands of the system, which for them too is complex, costly and unfair. Family members end up sacrificing their careers, finance and their own health in order to provide care for disabled or older loved ones, while getting little or no help from a social care system and finding services poor-quality and expensive.

However, if you have a carer, you are luckier than the frail older person living alone whose total social care is 15 minutes once a day, twice if you are very lucky. That is not enough to keep you clean and comfortable, as we have often been reminded. These problems are only going to get worse if nothing is done. The Dilnot commission, of which my noble friend was a distinguished member, published its proposals in July. They aim to change the way in which social care funding is raised and spent, extending entitlement to public funding for social care in a way that is acceptable and sustainable for the taxpayer. Your Lordships will be familiar with its main recommendations: the contribution of an individual to their social care in their lifetime being capped-of course, there is dispute about what the level of the cap should be-the means-tested threshold over which people are entitled to full costs being raised to £100,000; national eligibility criteria and portable assessments; and all those who enter adulthood with a care and support need being immediately eligible for full state support. One recommendation which is often overlooked, but which is of huge value to users and carers, is that a new information and advice service be set up to guide families on what they need to know.

The cost of these proposals is estimated to be about £2 billion, though the figure is disputed. This is, of course, a large sum but it must be compared to the £170 billion which social security costs, or indeed to the £119 billion which is the value of the carers' contribution. In difficult financial times, these are difficult figures and the question of how the money is to be found exercises us all. A better question may be what will happen if that money is not found. As I pointed out in the recent debate mentioned by the noble Lord, Lord Warner, unanimity of support for the Dilnot proposals is as great as I have ever seen it on this issue. The current consensus is that it is inescapable for the future funding of social care to be based on a combination of individual and state responsibility and contribution. It offers the prospect of a lasting settlement based on a partnership approach. There is not unanimity on every aspect of the Dilnot proposals, but there is more consensus than we have ever seen around this issue.

The amendment provides a practical and, I contend, relatively uncontroversial way of taking action now. If we adopted it and, indeed, if we adopted the Dilnot proposals, we would gain some advantages. We would spend existing resources better. It would improve the integration of health and social care systems. We should never forget what happens if you do not provide proper social care. People will inevitably turn to the NHS if they do not get adequate social care. They will go to their local casualty or to the NHS as an emergency, increasing the numbers of emergency admissions or delayed discharges. The inconsistency between fully funded NHS care and means-tested social care hampers delivery of an integrated care system.

If we adopt these proposals and put social care on the same footing as healthcare, the rights and responsibilities of individuals and agencies would be clear to the public. If people were clear about their future personal liability, they could plan now about how to meet care costs. One of the great problems we have in social care is that no one ever plans for their future care needs. Families just do not talk about it. One of the reasons they do not talk about it is because there is still an assumption in our society that the state will meet all your needs. Social care has always been means-tested, but people still think that the state will meet their care costs. If we put this much more openly on the face of the Bill, we would stimulate people to discuss their future care needs and stimulate the care market to provide more choice.

The Government are committed to a White Paper in the spring, but it cannot be stressed too strongly that action is needed now, to take advantage of the near consensus which exists around this issue. We should harness not only the consensus in the care sector, which is so clearly set out by the 52 organisations in the Care and Support Alliance, but the willingness of political parties to cross party-political divides in the interests of finding a solution to the social care dilemmas. Without doubt, we must find political consensus. I know my own party has suggested ways of facilitating this. In the debate on 10 November on social care, I reminded your Lordships of what the Minister for Social Care said in answering a debate in the other place: that,

"when the decisions are made ... I hope we will be in a position to legislate at the earliest opportunity. Social care has languished ... in the 'too-difficult-to-do' box for far too long. We are the Government who are committed; we see the urgency and the need. I hope that together we can get the cross-party lead which results in the changes which are long, long overdue".-[Hansard, Commons, 10/11/11; col. 181WH.]

I know that all noble Lords will agree with that. The Government have promised legislation in the near future. This amendment provides an opportunity to address now an issue that is of concern not only to your Lordships' House but to the whole of society.

Photo of Baroness Murphy Baroness Murphy Crossbench 5:30 pm, 7th December 2011

My Lords, I have added my name to the amendment because we are considering a Bill under which we are trying to improve the efficiency, effectiveness, productivity and quality of the NHS. Yet we know that that is completely impossible without improving the social care system.

When I first picked up a copy of the Bill from the Printed Paper Office and read it through, I thought that there must be a third part that would address social care. I therefore rang up the department and spoke to the relevant David-they are all called David-and asked, "Where is it, David? Where are the social care bits that should go with it to make it a Health and Social Care Bill?". He just said, "Oh, that comes later". The reality is that many medical specialties simply cannot function effectively without social care services. Those specialities include general practice and my own in geriatric psychiatry. Much of that work involves people with long-term conditions, mental health problems, learning disabilities, all care of the elderly, all primary care and community services. I spent some years of my life trying to transfer money-rather successfully in Lewisham-out of the NHS and into social care, in order to be able to perform my job.

We are not getting the best use of the specialities in the National Health Service for wide tracts of the population simply because we have inadequate domestic personal care, inadequate assessments under social care, inadequate provision of support for carers and those vital bits that make real life work. We know that 40 per cent of the increase in demand for NHS services is entirely dependent on the change in the demographic over the past 20 years. We know from the predictions of McKinsey and others that that increase will continue unless we do something about it.

I used to do a lot of work in the Italian health service, where social care, because it has been so dependent on church organisations, is not organised in the same way that we are. The Italians began to be seriously worried, and they still are, because of the horrendous bed-blocking and poor health services for older people. I hate the term bed-blocking; it really means an inappropriate service to an older person. Who cares whether the bed is blocked? I personally did not care about that as regards my patients. The important thing is that the patients were not getting the appropriate services they needed in the community.

Unless we get a government response on how social care is to be funded in the community and in residential and nursing care that is doable, feasible and affordable, we will not make much progress in the health service because we will be constantly coming back to this problem. It is for this reason that I have added my name to the amendment. I do not know if it is the right amendment. I saw it as a way of kicking the Government a bit further to get a move on about the social care response. The Bill will not work for the NHS of the future unless we have an appropriate social care service response.

Photo of Lord Turnberg Lord Turnberg Labour

My Lords, there is little doubt that one of the key elements in the delivery of a system of care which improves on what we have now-and we certainly need to improve the current position-is the need to integrate care between the NHS and social care. It is in that light that I have found the Nuffield Trust report, Towards Integrated Care in Trafford, which I am sure that many noble Lords have read, so helpful. A number of things of value come out of the report. First, it needs local buy-in, the involvement of clinicians, managers, patients, local authorities and the public. It also needs good data-sharing, good leadership and time. It does not happen overnight. It took them two years, despite having all the enthusiasm and conditions in the area, for it to get off the ground.

Of course, all that needs the will of those who are paying for the services-the commissioners-if they are to pay for integrated care across the divide, which has proved so difficult. All those local changes depend on funding. If we believe that improvements in this area are critical-and I am sure we do-surely it should find a stronger place in the Bill, in particular in the Secretary of State's annual report. Amendment 244 states that we should insert the words,

"and its integrated working with adult social care services", in the report. That seems to me entirely appropriate and I hope that the noble Earl will consider that as a useful amendment to take forward.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

I just ask the supporters of the two amendments a question-the noble Lord, Lord Warner, may be the appropriate one, having been a director of social services. The amendment talks about breaking down the barriers. We are all at one with that. I was very interested in what the noble Baroness, Lady Pitkeathley, said about the Dilnot report; the noble Lord, Lord Warner, was a distinguished member of that committee, of course. Having listened to the amendment's promoter, I thought it was very persuasive and one could see a real future there.

One of the blocks that has not been addressed in this debate is the difference in accountability in terms of the democratically elected councillors who are responsible for social care. I wonder whether the Lord, Lord Warner, had thought about ways to try to harness that to get that integration. To try to bring together two very different accountabilities is a real challenge.

Photo of Lord Warner Lord Warner Labour

I shall briefly respond to that. We should never forget that the lion's share of the money that goes on state-funded adult social care comes from central government and is passed through local authorities to be spent on that group through the commissioning of various domiciliary, residential and even nursing home care. Although what I have crafted is a duty on the Secretary of State, a lot of this comes back to where the balance is struck between the NHS and adult social care in terms of priority and funding in Richmond House. They are all under the same departmental expenditure limit at department level.

The sense I had as a Minister was that it is a bit like the Army: you have to put a musician in the canteen. A former director of social services is kept well away from social care in Richmond House. I saw a reluctance in the NHS culture in Richmond House-which, thankfully, has changed with the arrival of David Behan -to fight for social care at the time of expenditure reviews. That is a real and serious issue. The big guns of the acute sector are alive and well in Richmond House when the expenditure review comes around. My noble friend Lord Hunt is nodding-I think enthusiastically, given his current job as chairman of a foundation trust. This is a real issue. We need a bit more balance in the statutory duty on the Secretary of State in order to align the money going into social care vis-à-vis the NHS.

There is a perfectly good point to be made at the local level. You want to see priority being given to adult social care at the local level, and you want to see openness on the part of local government-which, if I am honest, has not always been there-in working across the boundaries with people in primary care and in the NHS. That is absolutely an issue. However, if in local government you have only enough money to deal with people with substantial or critical needs, then your ability to help people with moderate needs and stop them getting worse will be restricted by the amount of resources available. It will then be extremely difficult to work across that boundary. We know that many local authorities have reprioritised their services, taking money away from other services and putting it into adult social care, but a very clear finding from the Dilnot commission was that the adult social care pot is simply not big enough. It is no good for us to keep uttering that there is a need for integration if there is not enough money at the local level for adult social care to work across the boundaries.

Photo of Baroness Greengross Baroness Greengross Crossbench

My Lords, I strongly support the amendment and the remarks of the noble Lord, Lord Warner, and the other noble Lords who have spoken. Over the past 50 years we have seen a huge rise in longevity. In this century and at the end of the last century, that rise in longevity has been largely due to medical success in taming many acute and terrible diseases that once we could hardly even talk about. Now, many cancers can be lived with for a long time. However, the big and difficult condition to be dealt with now is dementia. This is a long-term illness and it is terminal in various forms, yet the care for people with dementia is funded largely through social care. This, in itself, is an enormous anomaly. One in four patients in hospital who are elderly and a huge number of people in the community have dementia, but that illness is treated as being due for social care, not NHS care, although the borders do blend to some extent.

We need to celebrate that huge medical success but we cannot do so if we go on as we are with the funding of, and attitude towards, social care, which remains very much as the Cinderella between the NHS and the community. Many people now say that this differential means that in reality we should close 20 per cent of acute hospital beds and transfer those patients to a different sort of care-perhaps hospitals transformed into community hospitals. It is not a case of killing them off; they should be transformed into care centres where people with these long-term conditions can be properly treated. We really must work towards that and accept the truth of it. If we do that, there will be an obvious need to integrate health and social care quite differently from the way that we have done it in the past. What is needed is not a transfer of resources but integration. We must get this right.

I have recently been involved in the EHRC's inquiry into the care of older people in the community. We found that while a quarter of a million people are happy with the social care they receive in their homes, another quarter of a million are not-and understandably so because some of the ways in which they are looked after are, frankly, appalling. This is partly because of the huge diversity and differential in the allocation of resources, as well as the status and training of staff in dealing with the most difficult issues and problems. I am not going to go through everything I learnt from that inquiry. The report has been published, and I hope it will be helpful to many people in policy-making and in practice.

If we get this right and we keep people in the community for longer, we will save an enormous amount of money. At the moment, adult social services directors have no choice but to give money to the people in the most acute need, which means that the social care needs of all these other people are therefore not being met. If I were one of those directors and I had to choose where my money was going to go, that is what I would do. That needs to change because of the necessity of resource integration. We must find a way to intervene earlier, for dementia for example, with drugs, early diagnosis, and treatment in the community. People will then be able to live in the community for much longer and many will die in the community. An enormous amount of money will be saved. Care for people with dementia, in particular, in hospital is really unsuitable. It is bad for them and it is extremely bad for other patients. It really must change.

One reason that community care goes wrong is annual budgeting. If, like local authorities, one has to have an annual budget, one can do no preventive work. At least a four-year cycle is needed. It is like starting a business, investing in it, and expecting the return within a year-it cannot be done. One must wait a few years for the return. However, local authorities cannot wait because they lose their central government grants; we need to change that. The well-being boards need to be given the resources to integrate care properly so we can get rid of this imbalance.

Further, the Dilnot recommendations-and I congratulate the noble Lord, Lord Warner, on the distinguished role he played in this-are the first realistic proposals which bring together all sectors-public, private and voluntary-to get it right, with what seems to be a political consensus. This is such an opportunity, and we really cannot afford to lose it. Older people will suffer the most. There is still an enormous amount of discrimination. The social care we offer to younger disabled adults and to people with physical or learning disabilities is totally different; the attitude, and the range of resources and skills available to younger adults are quite different. This is direct and really damaging discrimination. The only way to change this is by integrating resources through the well-being boards. We need to make Dilnot a reality so that in the longer term all of us know enough to save for our pensions and our care. This amendment is essential if we are to get some action now. I support it very strongly.

Photo of Baroness Emerton Baroness Emerton Crossbench 6:00 pm, 7th December 2011

My Lords, I support the amendments, first, because I totally agree with them. The second reason takes me back in history-I think it was 1976 or 1978-to when the Government had a Bill proposing that learning disability clients should be taken out of mental handicap hospitals and placed in the community. I had the privilege and lovely responsibility -this is when old age comes into experience-of managing that project. I worked with the noble Lord, Lord Warner, who was then director of social services. I also worked with Lambeth, Lewisham, Southwark and all the London boroughs, which were absolutely against having patients transferred to the community.

If there is something in the Bill and it is government policy, everybody will work towards it and understand that there must be integration. We have mentioned the word "culture". I found this issue absolutely fundamental. It runs through the whole issue. The noble Baroness, Lady Cumberlege, was also part of this exercise. She was in Brighton at the time and some clients went to Brighton. It was extremely difficult to get local authorities to understand the needs of some of these clients. Some had special needs and difficult behavioural problems. However, we got there because we had target dates by which we had to do it and also because we had trained staff. We have not yet spoken about the workforce, except in terms of carers and social care. We need to have a workforce that will be able to supply the level and standards of care that will be required.

My noble friend Lady Greengross has just mentioned the fact that dementia care in hospitals is not good. That is probably very true, although it is good in some places. We must look at training needs for social care as well as for transferring patients to secondary care. The culture issues are important and once they are included in the Bill, one can get to work on them.

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, I will speak briefly in support of the amendment and answer the point made by the noble Lord, Lord Warner. Since 1948, we have had a system whereby there has been an agreed national settlement on a person's entitlement to healthcare. It is delivered to national criteria and demand is managed largely by waiting times. Running in parallel is social care, where there is no national entitlement and demand is managed by eligibility criteria. The two systems are administered in parallel by completely different people, side by side. Successive reports have set out for us all the different ways in which the two systems do not work together. People have analysed the reasons why the systems do not work together.

The most telling thing for me is that we have known for a very long time, because we have evidence to prove it, that if older people are discharged from hospital and are supported through the period of discharge, the likelihood of them being readmitted to hospital is very low. We also know, because of that, that the cost to the NHS decreases. I am afraid to say that those of us who work in the charitable sector also know how impossible it is to get the NHS to run a hospital discharge system. The noble Baroness, Lady Emerton, is absolutely right. I do not want to throw blame about, but it leads to my point about why I think the amendment is important. The biggest single thing that will make an impact on the NHS is cultural change. There are a lot of barriers in the NHS to that change. We have heard the point echoed in our debates over the past few weeks. Some of our most eminent clinicians have made the point very glibly that there is very little evidence about what works in social care. That is true; social care has some way to go in developing an evidence base. However, we have some evidence and it still gets ignored because social care is not up there with healthcare.

Noble Lords have talked throughout our debates about specialist nurses and how important they are. I have come to the conclusion that the greatest asset of a specialist nurse is that they know their way around social care and can explain it to people in the NHS. I do not wish to denigrate specialist nurses in any way; they do a fantastic job. However, part of me thinks that if they are the only ones who understand the system, are they letting the rest of the NHS off the hook? The biggest single thing that will make the Bill work or not work is whether everyone in the NHS sees it as their responsibility to understand and work with social care.

The amendment of the noble Lord, Lord Warner, is cleverly worded. I congratulate him on that. It is based on Dilnot and the Law Commission, although he has crafted it using general terms so that it is not specific to those two reports. I commend him for that. On balance, the most important part of the amendment is proposed new subsection (2)(b), which reflects the Law Commission report. Until we get nationally agreed standards of eligibility, assessment and charging policies, it will be impossible for anyone who works in the NHS to know what it is they are supposed to be integrating with. That is the key point. I understand that Dilnot is important in terms of funding, but the Law Commission report is the important one.

I listened very carefully to what the noble Lord, Lord Turnberg, said. I always do. It is a very good report; I agree with that. However, he said that all these local developments in integrated care depend on funding. He is right, but there is a huge amount of wastage of resources throughout the health service. I pick up on this at local level. It comes down to two things: data are not shared and there is no understanding of common assessment of needs. Those two things cost the NHS and social care a fortune. Proposed new subsection (2)(b) of the amendment is so important because it covers the key area on which we have to work.

Perhaps noble Lords have been slightly pessimistic about the Bill. The existence of health and well-being boards is important. It will be possible, locally if not nationally, to begin to work on these issues. It will be possible for some areas to do highly innovative stuff. Noble Lords have talked about the work done in Torbay. When my colleagues were in charge of the borough of Islington, they had a very interesting approach. Social services took responsibility for everything that was to do with children and the NHS took responsibility for everything that was to do with older people, which included social care. I would like to see more of that and I hope that health and well-being boards will bring it about.

Presumably the noble Lord, Lord Warner, was told to have a go at the Liberal Democrats today. I was surprised that he asked about our attitude to the Dilnot report and the Law Commission report. At our conference in September we passed a resolution to the effect that we welcomed the reports and wished to see the Government implement them quickly. We have not come up with a series of bureaucratic provisions to hold up implementation. I pay tribute to Paul Burstow. He came into government when the previous Labour Government had not resolved the issue in 13 years. He found extra funding for social care and went out of his way to make sure that the Dilnot review was set up. He laid down a challenge to us that I pass on to noble Lords. He challenged us to campaign on social care with all the passion and vigour that we do on the NHS. I challenge noble Lords to do that. Actually, I would like to challenge 38 Degrees and everybody else to do that, because there are an awful lot of people who are willing to be as vociferous as you like on the NHS but are suddenly silent when it comes to social care. Some of us have had enough of that. I commend the noble Lord's amendment.

Photo of Lord Warner Lord Warner Labour

I was not doubting the enthusiasm on the Liberal Democrat Benches regarding this area. I just wanted to provoke the noble Baroness into giving the kind of excellent speech that she has given. I was hoping that we would hear from her. I also join her in paying tribute to Paul Burstow, and indeed Norman Lamb, for the very supportive way in which they have approached this issue.

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

My Lords, we have had a very interesting debate on this imaginative amendment from my noble friend Lord Warner. Today's debate might well be the only debate on social care in the whole life of this Bill, including in the Commons. I would like to talk about some real people, with real conditions and real problems, because it is only by testing this Bill against those that we will know whether it is going to work, and whether the issues that are being raised by noble Lords across the House are going to be taken into account.

I would like to pick up where the noble Baroness, Lady Greengross, left off, and talk a bit about dementia, partly because I have a very close friend whose wife has dementia and I have been following the path of this for the last seven or eight years, but also because this is an issue that affects hundreds of thousands of people. The Alzheimer's Society reckons that: there will be 1 million people with dementia by 2025; dementia costs the country £20 billion now; one in three people over 65 will die with dementia; only 40 per cent of those have a formal diagnosis-that figure varies enormously across the UK; and, of course, which is the reason why they are important to this debate, people with dementia are very significant users of health and social care services. We know that people over 65 with dementia are currently using up one-quarter of hospital beds at any one time. The current system of charging for care, such as help with eating, hits people with dementia hardest, as the noble Baroness, Lady Greengross, has said, and amounts to what the Alzheimer's Society calls a "dementia tax".

We know all of this. The All-Party Parliamentary Group on Dementia, the National Audit Office and the Alzheimer's Society have identified that significant resources are wasted on poor-quality care-for example, through crisis admissions into hospital or long-term care. There are opportunities to save money in dementia care across a wide range of settings; for example, by investing in early intervention and prevention services. In a way, those matters are the test of this Bill. Can we save the money and deal with the people who have got dementia? How can we promote a shift of NHS resources away from acute hospitals into community-based services, as recommended by the NHS Future Forum and the recent inquiry by the All-Party Parliamentary Group on Dementia?

I know that the Government recognise that a sustainable NHS in the future requires a new long-term settlement on social care to ensure quality for people facing disability and long-term illness. We think that this amendment will help with that. When I was looking at this amendment, I remembered that I myself was given a speaking note that said, "Of course, health covers social care, too". That is not good enough any more; it is not good enough to say that by writing health into the Bill and giving the Secretary of State responsibility for it, we are somehow covering social care. Apart from anything else, it has not worked. We know it has not, and we are where we are. There are some very serious issues.

What does my friend whose wife has Alzheimer's face? For seven years they have been coping as her Alzheimer's has progressed, and coping very well indeed, but he is now getting on, too. I thought it might be worth looking at what is in store for him, and perhaps when the Minister responds to this debate he can also address what is in store for this person. We know that the local authority is making cuts in day care; he has told me that his respite is being reduced at the moment because of the strains under which the local authority finds itself. We know that the assessments for his wife-and himself, possibly, as he gets older-will get more and more difficult as the criteria move up the ladder of seriousness.

I am concerned about the immediate problems that my friend and his wife face, but I have become concerned about the medium term as well, which is about the transition and the risks that are posed to people like him in the transition to the new architecture of the NHS. He is absolutely the ideal carer that my noble friend Lady Pitkeathley has been talking to us about for many years. He and his family have taken responsibility for his wife's condition. He has managed the system on her behalf. However, he is getting old and tired and he will get frail himself. These are the people who fall down the gaps in our system.

When I was preparing for this debate, I also looked at the report by the King's Fund on integrated care. Obviously, we all know the King's Fund well; it tends to talk about structures and theories and so on, but this report did point to examples, one of which was mentioned by the noble Baroness, Lady Barker, about care for older people in Torbay. I would like to raise two issues that the report referred to and then I would like to mention the ingredients that the King's Fund says are important for integrated care, and to see how those apply to what is proposed in this Bill.

One of the schemes that is commended by the King's Fund report is the Bolton diabetes centre, which was,

"set up in 1995 and is the base for a team of community-based specialists. The team reaches into the local hospital for inpatient care, and out to general practices to provide support and undertake shared consultations. The vision is of care that is patient centred and delivered in the appropriate place", for the person concerned. The centre has aspired to develop,

"a fully integrated diabetes service without gaps or duplication and with smooth and quick referral from primary care to specialist advice. Patients and staff have reported high levels of satisfaction with the service, and in 2005/6 Bolton reported the lowest number of hospital bed days per person with diabetes in the Greater Manchester area".

That is a very good example of a scheme that is working.

Another example in the King's Fund report relates to something that has not featured very much in these debates, and that is stroke care. The report says:

"Stroke care in London and Manchester has been improved by planning the provision of these services across networks linking hospitals. Manchester uses an integrated hub-and-spoke model that provides one comprehensive, two primary and six district stroke centres. Results include increasing the number of eligible patients receiving thrombolysis within the metropolitan area from 10 to 69 between 2006 and 2009. In London implementation of a pan-London stroke care pathway and the development of eight hyper-acute stroke units has improved access and reduced length of stay in hospitals: 85 per cent of high-risk patients who have had a transient"-

I can never pronounce this word-

"ischaemic attack are treated within 24 hours, compared with a national average of 56 per cent, and 84 per cent of patients spend at least 90 per cent of their time in a dedicated stroke unit, compared to a national average of 68 per cent. Five of the top six performing hospitals in the National Sentinel Audit for Stroke are now London hyper-acute stroke units".

We know that hundreds of lives have been saved in London and hundreds of people have gone on to make a full recovery from a stroke there.

According to the King's Fund report, the first core ingredient of integrated care is:

"Defined populations that enable health care teams to develop a relationship over time with a 'registered' population or local community, and so to target individuals who would most benefit from a more co-ordinated approach to the management of their care".

How will that be achieved without, for example in London, NHS London to drive the integrated stroke system? How will that be achieved when we have clinical commissioning groups that are not coterminous with their local populations? How will that be achieved with health and well-being boards if they do not have the right powers and tools at their disposal and the right kind of accountability to deliver?

Another core ingredient is:

"Aligned financial incentivesthat support providers to work collaboratively by avoiding any perverse effects of activity-based payments; promote joint responsibility for the prudent management of financial resources; and encourage the management of ill-health in primary care settings in order to prevent admissions to hospitals and nursing homes".

One of the issues I would raise regarding that is how "any qualified provider" fits into the kind of integrated pattern of care that is being suggested here?

Another core ingredient is:

"Shared accountability for performance through the use of data to improve quality and account to stakeholders through public reporting".

Again, we are addressing issues of public accountability throughout this Bill, and again we can see that, if you are going to deliver integrated care, that is a very important matter.

The report goes on to talk about:

"Information technology that supports the delivery of integrated care, especially via the electronic medical record and the use of clinical decision support systems, and through the ability to identify and target 'at risk' patients

A physician-management partnership that links the clinical skills of healthcare professionals with the organisational skills of executives, sometimes bringing together the skills of purchasers and providers 'under one roof'"- which is, I suggest, a challenge at the moment-

"Effective leadership at all levels with a focus on continuous quality improvement

"A collaborative culture that emphasises team working and the delivery of highly co-ordinated and patient-centred care"- we have to test that collaborative culture, and we shall be doing that next week against the competitive stream that is in Part 3 of this Bill.

Finally, the report mentions:

"Multi-specialty groups of health and social care professionals in which, for example, generalists work alongside specialists to deliver integrated care".

The last, but in a way the most important ingredient-which should have been at the top of the list, so the King's Fund should take a slap on the wrist for that-is:

"Patient engagement in taking decisions about their own care and support in enabling them to self-care".

I think there is precious little in this Bill that delivers that kind of patient input, so we hope to improve it.

My final remarks are that I support, of course, the remarks that have been made about moving towards Dilnot and making sure that its proposals are carried out. If this amendment helps to take that forward, then I think that is right and we should support it. The noble Baroness, Lady Barker, was quite right, though, when she said that the Law Commission report was crucial to this exercise and to the national assessments. I do not think it is a case of one being set against the other, but there is absolutely no doubt that it is vital for the delivery of national assessments.

I understand that the noble Baroness and her colleagues have not appreciated the attentions of some of the campaign groups that have been concerned about this Bill. Well, you know what? You cannot choose your campaign groups. As a politician, you just have to listen to what they say and then decide whether you like it or not. The noble Baroness has obviously not enjoyed their attentions, but I wish them all the best. I think they are doing exactly the right thing, but I would say that.

This is an important issue. We easily lapse into structures, and words about structures, and we lose sight of the fact that this is about our fellow citizens. When I look around this Chamber, I know that a lot of your Lordships are carers who are taking responsibility for people in a very direct fashion. I will not say who you are, but I know who you are and I know that you are as passionately concerned about this matter as we are on these Benches. It is very important that we take the opportunity this Bill offers to make progress on this issue.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 6:15 pm, 7th December 2011

My Lords, with Amendments 244 and 260DA, the noble Lord, Lord Warner, has taken us to the important matter of the relationship between the NHS and social care, and I agree with him that this relationship is in a real sense symbiotic. The noble Lord presented us with some sobering facts and messages about the increasing pressures that are likely to arise in our health and social care services over the next two decades, and it is in large part because of those looming pressures that the Government have brought forward their proposals for health service reform. The noble Lord deserves to be listened to with close attention, and I again pay tribute to his work as a member of the Dilnot commission.

Looking first at Amendment 244, we strongly agree that integrated services are important. The noble Baroness, Lady Greengross, brought home that message compellingly. This is why, throughout the Bill, there are duties to promote and encourage the commissioning and provision of integrated services. It is a vital principle. However, sympathetic as I am to the spirit of the amendment, I feel that the Bill's current wording already provides for what it seeks to achieve. I would already confidently expect the annual report to cover aspects of service integration, and that is because integrating services, both between different parts of the NHS and between the NHS and other public services, would be essential to providing a seamless and high-performing health service. The change of culture that the noble Baroness, Lady Emerton, and my noble friend Lady Barker spoke of will not happen overnight, but it can be encouraged and promoted by shining a bright light on how well or badly the NHS is performing in this area.

Turning to Amendment 260DA, the Government are absolutely clear that a key objective of social care reform must be to improve outcomes for individuals and their families and carers using social care. Again, I completely understand why the noble Lord has brought forward this proposal, and I recognise that the amendment has been carefully crafted. In explaining the amendment, the noble Lord expressed worry about whether the Government are serious about pressing ahead with reform. The Government have committed to setting out proposals for the reform of social care in a White Paper and a progress report on funding reform to be published in spring of next year, with legislation to follow at the earliest opportunity. I can confirm to my noble friend Lady Barker that this will include our response not only to Dilnot, but also to the report published earlier this year by the Law Commission.

We agree that reform of the system is urgent and we debated these very issues recently and in some depth in a debate led by the noble Baroness, Lady Pitkeathley. If the Committee will forgive me, I will not repeat what I said on that occasion. However, on 15 September, the Government launched Caring for Our Future: Shared Ambitions for Care and Support, which was an engagement seeking views about the priorities for improving care and support. This focused period of engagement has been welcomed by stakeholders and, although it officially concluded on 2 December, we will continue to work closely with the social care sector as we formulate our proposals for reform.

The noble Lord proposed that the duty to secure improvement should include efforts to reduce the barriers to integration of health and social care. We are very much aware of the concerns about the integration of services and have asked the NHS Future Forum to consider this in more detail. This work is being undertaken in collaboration with caring for our future, the engagement on social care reform. Appropriately, there is integration of this work on integration.

I would say in particular to the noble Baroness, Lady Pitkeathley, that caring for our future has also been considering the recommendations of the Law Commission and the Commission on the Funding of Care and Support, including those on portability, assessment and eligibility for social care. This has highlighted her point about the importance of clarity of the state offer to help people to plan and prepare to meet their own care costs.

Given this ongoing work ahead of publication of the White Paper on social care reform, we do not want to pre-empt our consideration of the feedback from the engagement or to make changes to the existing statute when more fundamental reform is already planned. Indeed, the Law Commission's recommendations seek to address the current piecemeal nature of social care legislation, having noted that social care statute is confusing and unclear. However, I emphasise again that the Government have committed to legislation at the earliest opportunity, which we believe will be the most appropriate vehicle for debating these critical matters.

In this context, these amendments are unnecessary at this time, although clearly they have been proposed for the best of motives, which I share. It is our view that proposals for reform of adult social care services, including a continued focus on better integration with health services, should be encompassed within the overall proposals put forward in the White Paper next year, and informed by the work of the Future Forum and the engagement with the social care sector that has been taking place in recent weeks.

As long as the noble Lord realises that I am not in any way dismissing the importance or salience of the issues that he has raised, I hope for the reasons I have given, he will feel able to withdraw his amendment.

Photo of Lord Warner Lord Warner Labour 6:30 pm, 7th December 2011

My Lords, I have listened carefully to what the Minister has said. I am not totally astounded to hear his remarks and I am grateful for the generous way in which he made them. However, I also listened carefully to other people in this House, in particular, the noble Baroness, Lady Barker. I certainly cannot see why the Government cannot move on Amendment 244. It does not pre-empt in any way their decision-making on the Law Commission, Dilnot or anything else they want to write about in terms of their White Paper in the spring.

The flavour of this debate is that we need to give some particular attention in this Bill to integration between health and social care. Requiring the Secretary of State specifically to deal with that issue in his annual report is a very good signal to be given to the outside world and, particularly, to the NHS. A number of people who have spoken today have suggested that that signal needs to be given.

I was not expecting to get a lot of progress on Dilnot but I want to come back briefly to subsection (1) of the new clause to be inserted in the Bill under Amendment 260DA. I feel strongly that we need a duty of this kind on the Secretary of State to balance the equation with the NHS. I shall take advice from a lot of people outside this House on whether we should come back to this issue on Report. At the moment, my instincts are that we will want to but I want to hear what people outside this House in the sector have to say. But I certainly reserve the right to come back on that issue, which I am happy to discuss with the noble Earl further if he wishes to do so. In the mean time, I beg leave to withdraw the amendment.

Amendment 244 withdrawn.

Amendment 245 not moved.

Clause 50 agreed.

Clauses 51 and 52 agreed.

Schedule 4 : Amendments of the National Health Service Act 2006

Amendments 245ZA to 245C not moved.

Amendment 246

Moved by Earl Howe

246: Schedule 4, page 294, line 33, after "Board," insert-

"(hb) a subsidiary of a company which is formed under that section and wholly owned by the Secretary of State,"

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

My Lords, this set of amendments is predominantly made up of a series of minor government amendments to Schedules 4 and 5. Many of them make minor or technical changes to these schedules to correct errors, ensure the Bill's provisions work as they are intended to do and make minor consequential amendments to the NHS Act 2006. They correct a couple of errors in cross-references and the placement of consequential repeal; add references to the Bill's provisions on transfer schemes to Sections 216 and 220 of the NHS Act, which relate to the transfer of property held on trust by the NHS, such as charitable property; and remove a reference to Section 2 of the Local Democracy, Economic Development and Construction Act 2009, which is being repealed by the Localism Bill.

The amendments also amend the definition of "qualifying company" in Clause 294, so that under the Bill we will be able to transfer property to a subsidiary of a company wholly owned by the Secretary of State, not just to companies owned directly by the Secretary of State. They also amend Schedule 4 to allow such subsidiary companies to be members of the statutory risk-pooling schemes for meeting liabilities of NHS bodies.

This group also includes one other amendment on Schedule 5, tabled by my noble friend Lord Lucas. Amendment 254 amends the Freedom of Information Act 2007 so that the criminal offence of taking certain actions to prevent disclosure of information held by a public authority is expanded to include information held by service providers. I can reassure my noble friend that the Government are committed to extending the scope of the Freedom of Information Act to increase transparency. To do this effectively, we need to spend time properly considering the issues raised. It would not be appropriate to rush through changes that have not received proper scrutiny.

As part of this work, the Freedom of Information Act will be subject to post-legislative scrutiny and the Cabinet Office has recently concluded a public consultation on an open data strategy, which is aimed at establishing how we ensure a greater culture of openness and transparency in the delivery of public services. I understand that my noble friend has already met with officials to discuss his concerns around freedom of information and this Bill, which I hope reassured him. If he has additional concerns following this debate, I would be more than happy to write or to meet him to discuss this further. I hope that that will enable him not to press his amendment when we reach it.

I also hope that I have satisfied noble Lords that this set of government amendments should be made and that my noble friend will feel equally content.

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

My Lords, I should like to ask one question and to make one remark. Even the Minister smiled when he used the words "openness" and "scrutiny". Given our previous conversations about the information that the House has not received, I do not intend to rehearse that again but I would look at colleagues in the Liberal Democrat Party and say just how shocked and amazed I am by their lack of willingness to want proper openness and scrutiny on this Bill.

My question concerns the strategy risk-pooling schemes. I understand what those are, but I would like to know who the pooling would be shared with.

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

My Lords, in order to give the noble Baroness a proper answer on that, if she will allow me, I will write a letter to her to explain how we envisage this working.

Amendment 246 agreed.

Amendments 247 and 248

Moved by Earl Howe

247: Schedule 4, page 294, line 37, leave out "(ha)" and insert "(hb)"

248: Schedule 4, page 294, line 42, after "(ha)" insert "or (hb)"

Amendments 247 and 248 agreed.

Amendments 248A and 248B not moved.

Amendments 248C to 250

Moved by Earl Howe

248C: Schedule 4, page 311, line 30, leave out "57 to 61" and insert "69 to 76"

248D: Schedule 4, page 312, line 8, at end insert ", and

( ) in sub-paragraph (5), omit "in its area""

248E: Schedule 4, page 312, line 25, leave out "62" and insert "77"

249: Schedule 4, page 316, line 3, at end insert-

"In section 216 (application of trust property: further provisions), in subsection (3), after "or 214" insert "of this Act or section 294 or 296 of the Health and Social Care Act 2011"."

250: Schedule 4, page 316, line 21, at end insert-

"In section 220 (trust property previously held for general hospital purposes), in subsection (2), after "or 214" insert "of this Act or section 294 or 296 of the Health and Social Care Act 2011"."

Amendments 248C to 250 agreed.

Amendments 251 to 253 not moved.

Schedule 4, as amended, agreed.

Schedule 5 : Part 1: amendments of other enactments

Amendments 253A and 253B

Moved by Earl Howe

253A: Schedule 5, page 326, line 42, leave out "paragraphs 46 and 49" and insert "paragraph 46"

253B: Schedule 5, page 327, line 27, after "(1)" insert "-

(a) omit paragraph 49 of Schedule 2 to the National Health Service Reform and Health Care Professions Act 2002, and

(b) "

Amendments 253A and 253B agreed.

Amendment 254 not moved.

Amendments 255 and 256

Moved by Earl Howe

255: Schedule 5, page 351, line 2, at beginning insert "In section 123 of"

256: Schedule 5, page 351, line 2, leave out from "2009" to "(partner" in line 18

Amendments 255 and 256 agreed.

Schedule 5, as amended, agreed.

Schedule 6 : Part 1: transitional provision

Amendment 256A not moved.

Schedule 6 agreed.

Clause 53 : Abolition of Health Protection Agency

Amendment 257 had been withdrawn from the Marshalled List.

Amendment 257ZA

Moved by Lord Warner

257ZA: Clause 53, page 84, line 15, at end insert-

"( ) On the abolition of the Health Protection Agency, the Secretary of State will allocate their functions and any others he or she considers appropriate to an Executive Agency with its own chief executive as accounting officer with a management board with an independent chairman and at least three non-Executive Directors with expertise in its functions selected by the Department's Chief Scientific Adviser.

( ) In allocating these functions the Secretary of State shall ensure that staff of the Executive Agency should have freedom to secure and discharge external research contracts."

Photo of Lord Warner Lord Warner Labour

My Lords, we come now to Clause 53 and the proposed abolition of the Health Protection Agency. I shall speak to Amendment 257ZA in this group, but in doing so I should make clear that I do not support the abolition of the Health Protection Agency, and I have every sympathy with the Front-Bench amendment that Clause 53 should not stand part of the Bill. I should not be unhappy if I lost my amendment because the clause itself was removed.

However, if the Government are going to proceed with this casual vandalism against an internationally respected organisation, I would hope that we could secure some damage limitation, which is what this amendment attempts to do. I will leave it to my co-signatories of this amendment, who have much more scientific and clinical expertise than me, to explain why we need to protect the independent scientific and research expertise of the Health Protection Agency in any new organisational form that there is for it.

As the Minister who helped to shape the Health Protection Agency in its present form by bringing together a wider range of scientists in one organisation, I want to put on record that it has acknowledged the importance of that and the improvement in the cross-fertilisation of ideas that has come about because we brought a wider range of scientists into the organisation.

I should also make clear that when confronted with crises involving areas of great public concern-I cite as examples the great concern in 2003 and 2004 about the growth in healthcare-acquired infections, and, later on, the Litvinenko affair and the concerns about polonium-210-the independent scientific advice from the arm's-length Health Protection Agency was absolutely vital to giving the public confidence in how we were moving forward and dealing with those issues. It was the people from the Health Protection Agency, particularly during the Litvinenko affair, who were able to stand up in public and give scientific reassurance in that area. It is that independence of scientific expertise that I am very anxious we should preserve in the move to abolish the Health Protection Agency.

Amendment 257ZA would ensure that if the functions of the Health Protection Agency are to be transferred to the Secretary of State and the Department of Health, there should be a distinct executive agency with its own chief executive as accounting officer, and a management board with an independent chairman and at least three non-executives with expertise in its functions, selected by the department's chief scientific adviser. The amendment would also ensure that staff had the freedom to secure and discharge external research contracts.

These changes will help to retain high calibre staff over time, and indeed the scientific reputation of what is currently the Health Protection Agency, in its new guise. I believe that they have the support of the staff of the HPA and reassure them about scientific independence and the ability to carry on seeking research contracts.

We need this reassurance in the Bill, not just warm words, however well intentioned the Minister is. I beg to move.

Photo of Lord Turnberg Lord Turnberg Labour

My Lords, my name is also attached to Amendment 257ZA. I also do not like the idea that the HPA is to be abolished, so I hope my amendment is not necessary, which it will not be if the proposal that the clause should not stand part of the Bill is agreed.

I have, of course, extolled the virtues of the HPA on a number of occasions in your Lordships' House. You could say that I would do that, wouldn't I?, having been the chairman of the predecessor of the HPA, the Public Health Laboratory Service, but it is certainly true to say that it is the envy of the world, and I am not the only one who says that. The Centers for Disease Control and Prevention in Atlanta, in the United States, are a very well funded counterpart with which we collaborated very strongly, and even they recognised this excellence and envied the fact that we, unlike them, had a network of laboratories across the country primed and ready to detect outbreaks of infection wherever they occurred. Those laboratories were linked into a central laboratory at Colindale, where highly specialised tests could be carried out when needed for unusual infections and where epidemiologists could link up outbreaks in one area of the country with outbreaks in another, so that it was possible to track the speed and spread of infections and prevent them developing into epidemics.

The fact that the HPA is hardly ever in the news is testament to its success in protecting the population. If your Lordships think that because it is so good there is now less need for such surveillance, let me point to the fact that just one set of infections-those responsible for food poisoning-remain a considerable health hazard, and gives rise to about 1 million cases per annum in the UK. Although it is usually fairly mild and often not reported, some cases, such as those due to E. coli, can be very severe indeed, and in the particularly vulnerable can be fatal. Food poisoning is, unfortunately, not showing any signs of decreasing, so the need for constant vigilance is high and the role of the HPA remains absolutely vital.

The amendment sets out two of the planks needed for the agency to contribute to its key roles. The first is the degree of independence that it needs to be able to give advice not only to those out in the field who need to act but very specifically to the Secretary of State and the Government. The HPA must not be seen to be simply the mouthpiece of government. It must have the independence that is so necessary to its credibility. It has stood it in good stead over the years. Its advice is respected and accepted, and we should not lose that now.

The other element of the amendment is the need to be able to undertake research. If the agency is to keep ahead of ever-changing bacteria and viruses, which seem to mutate every week, and to be able to develop new ways of rapid detection, it needs access to research funds. For example, it has excellent high quality researchers, two of whom have recently been elected to the fellowship of the Academy of Medical Sciences, which is a demonstration of their esteem. Over the years it has been fortunate to have access to research funds from the Department of Health, and I understand that that will continue. That, of course, has been of enormous value, but the agency has also attracted research funds in fairly large amounts from external grant funders, and this is funding won in open competition. There is a fear that as an authority that is rather more closely identified with the Department of Health, access to those external funds will be denied to it.

The amendment makes the clear case that the agency must continue to have access to these funds in order for it to function at the highest level. I hope that the Minister will accept the case and look sympathetically at the amendment.

Photo of Lord Patel Lord Patel Crossbench

My Lords, my name has been added to Amendment 257ZA and I have tabled Amendment 260 in my own name. I shall try to explain why I have added Amendment 260 to this group. There has been some advice to degroup it, and I have been tempted, but I have left it where it is. First, I agree absolutely with what my two friends, the noble Lords, Lord Warner and Lord Turnberg, have said in relation to independence in research and in the expert advice that Public Health England will be giving, and I shall support that by giving some details.

First, however, I shall refer to the funding issue. I do not understand why it has been suggested that Public Health England should not be allowed to bid for external research funding. I cannot see what the threat would be. I have no doubt that it was the Minister who suggested it, and maybe he was given advice, but I wonder why he was given it. I shall give some examples. The current running costs of the HPA covered by government funds are £145 million. On top of that, the agency receives some capital expenditure and depreciation funding. But the agency itself obtains another £150 million from external sources: funding for research and funding from the services of the HPA which are contracted to other agencies and sectors. These include laboratory services, and nuclear and chemical decontamination services. If I was running a university department and I got £150 million-worth of external funding, I would regard that as pretty good-in fact, as excellent. Most of our universities would struggle to get that kind of research funding.

Where does it come from? The largest source of external research funding comes from the National Institutes of Health in the United States for high containment work on infectious diseases. Both the noble Lord, Lord Turnberg, and I know from experience that to get a grant from the NIH is very tough. The agency also receives external research funding for vaccine evaluation, as well as from the recent licensing of one of HPA's research-generated products by the Food and Drug Administration in the United States. The agency has a product called Erwinase that is used to treat childhood leukaemias, which clearly demonstrates the commercial benefit of its ongoing research and income-generating potential. That sets out the picture as far as research income is concerned, and I repeat that I do not understand why the agency should not be allowed to bid for it.

The second issue is that of publication. The agency must be independent enough to be able to publish evidence and offer expert advice on all topics in which it has expertise, regardless of government policy. For the public to have confidence in their public health agency, it must have the independence to publish. The Government may not take the advice they are given, but the agency must have the independence needed to be able to publish it, so again I cannot understand why it might not be allowed to do so. Nor can I understand why it cannot publish in any journal it wishes on any of its research or advice. To achieve all this, it is important that it has an independent board with an independently elected chairman. That is one of the crucial amendments I wish to see if we are going to go ahead with Public Health England as an executive agency of the department. That is also why I have tabled Amendment 260, which offers the belt and braces needed if, as the Government intend, Public Health England is established as an executive agency. If it is not given independence in terms of research, advice and its board, what we would then need to do is set up a non-departmental public body. That is the purpose of Amendment 260.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench

My Lords, I too support this amendment, although like the noble Lords, Lord Warner and Lord Turnberg, I would much prefer to see Clause 53 deleted from the Bill. Throughout my professional career I have been familiar with the expertise of the former Public Health Laboratory Service. It conducted research, carried out microbiological surveillance, protected the population of this country from epidemics and so on, looked after the safety of our water supplies, and indeed undertook a huge number of other activities. The noble Lord, Lord Turnberg, chaired that body with great ability and distinction.

I just do not understand the purpose of the Government in abolishing its successor, the Health Protection Agency, which has continued to follow that pattern and to supervise the work of laboratories across the country which were formerly part of the Public Health Laboratory Service. Again, it is difficult to understand what the purpose is of abolishing a body that has proved to be so effective, which continues to give excellent service and which, as other speakers have said, attracts external research funding. If it were to be absorbed into the Government under the Secretary of State, I believe that it would be less able to fulfil its functions and to carry out the distinguished research in which it has been involved over many years. For that reason, while I strongly support the proposal that Clause 53 should no longer stand part of the Bill, if-for the reasons that I hope can be explained by the noble Earl-the Government decide that that clause should remain, it is crucial that we have an amendment such as the one before us in order to preserve the activities of such a vital scientific institution.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I have added my name to Amendment 260, but I should like also to talk about the problem of abolishing the Health Protection Agency. I must declare an interest because at the moment my daughter is on a placement there and is most impressed by the work that she has seen. There will be a very specific problem for the Health Protection Agency if it is not completely independent, and that relates to Medical Research Council research funding. If the agency is part of the Department of Health, it will find it more difficult to secure MRC funding. That may also apply to Wellcome funding, but the problem will be particularly acute with regard to funding from the MRC, which is the highest rated funding that the agency can get.

Also, as has already been said, the agency is internationally renowned and recognised for the excellence of its work and looks set to bring in more work to the UK. It is now working with the World Health Organisation on disaster planning. In planning for new disasters that might take place, it is important that countries know what other countries are going to be doing. We have sea borders, but if there is a massive disaster in another country we cannot go to its assistance if we do not know how its systems work. The Health Protection Agency is the leading body in this work on behalf of the UK. It seems very short-sighted to do anything that would destabilise this organisation.

It has been suggested that it could be moved, possibly into universities. The difficulty is that the pressures of research evaluation within the university might mean that some of its research-which takes a very long-term view and may not deliver results in the very short term-would be subject to pressures that could undermine its independence. Its complete independence is essential if it is to be able to function to the standard that it currently does. It is also what you might call a very lean organisation, given that it has very high-quality research but also has people who are clinicians, who are partly involved in research and partly working out in the field; so it has some people with dual appointments, which means that they are very much planted in everyday work in the field. It has brought together people from a broad range of disciplines. It is rather interesting that the developing Francis Crick Institute is being based on the somewhat similar principle of bringing people with expert skills together under one roof to create an intellectual hothouse, to the benefit of research developments in this country. I hope the Government will think again, because they seem to be abolishing an agency and it is very difficult to see what is going to be gained by doing it.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench 7:00 pm, 7th December 2011

My Lords, I, too, would like to support what has been said about the HPA. It is so well thought of across the world, and infections spread across the world. Infections are getting much more complicated, with drug resistance, and we need the HPA more than ever. I ask the Minister one question: whatever happens to it, will it have an independent chairman?

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

My Lords, I speak to Amendment 260, in the name of the noble Lord, Lord Patel. It is probably not the time to go around memory lane, but I want to draw on some experiences that I have had. I was the hapless Minister responsible for the Health Education Authority. Some people may remember the Health Education Authority. It was largely independent and its funding came through the department. I should not speak ill of the dead, but it really was a nightmare. One of my lasting memories of my modest ministerial career was when we had a Starred Question in this House, asking why government money and very scarce resources should be spent on a leaflet, produced by the Health Education Authority, entitled, I think, 69 Ways for Better Sex. It was the first that I or the department had ever heard of it. Perhaps one of the interesting things was the number of noble Lords who said they could not take part in the debate unless they had seen a copy of the leaflet.

The HEA went completely off the rails. It was only when we were reading or listening to the media that we found out what it was up to. In the end, it not only alienated the Department of Health and the Government, it alienated local health authorities, with their responsibilities for public health. It was they in the end who asked us to close it down. Well, we did. Listening to the current proposal for Public Health England to be an agency, I think that is a good idea, although I know it is very unpopular with the Faculty of Public Health and others. An executive agency, although not totally independent, will operate with a degree of autonomy from Ministers on a day-to-day basis. While not as independent perhaps as a health authority, it will be recognisable as an entity and have its own identity.

The only model that we have got in health of an executive agency is the MHRA. Its chairman, noble Lords will know, is Professor Sir Alasdair Breckenridge, who has been the chair since its inception. Sir Alasdair is a very strong individual and somebody people really respect highly. In the vernacular, he is the sort of person you do not mess with because you know you will not win; you do not even try because he is somebody with enormous integrity and presence, and runs a very good organisation. It seems a good idea to look at the MHRA model and see how it is organised. Sir Alasdair tells me that there are eight non-executives on the agency board, who form the majority and are the board. They have a very good chief executive who is a civil servant but the non-executives are not. They are drawn from right across the country with different experiences and, again, they are people of huge distinction who are very much respected.

Here is an example or model that actually works. It has been tried and tested, and is a model we could certainly adapt for Public Health England. However, I suggest to my noble friend that the important thing is to keep the public health constituency with us on this. It is important that it has a real involvement in choosing the chairman of this new agency. If it is involved, that will go someway to ensuring the agency will be a success. It should also be involved in the recruitment and appointment of the non-executive members. We have a highly credible organisation here that could be a very good model for Public Health England and I hope my noble friend will consider those points about the appointment of the chairman and the non-executives, and the formation of that board.

Photo of Lord Warner Lord Warner Labour

I was the Minister responsible for the MHRA and very much share the noble Baroness's views on this. There are some slight differences, one of which is that a lot of the funding for the MHRA, in effect, comes from the pharmaceutical industry, in terms of licence fees. However, I was well aware of the MHRA experience, and my own experience of it, in trying to craft Amendment 257ZA, which does bear some resemblance to that. I certainly would not argue with the idea that the number of non-executives under my amendment should be larger than three-it does say "at least three". I will certainly go along with her that some outside expertise, in quite substantial numbers among the non-executives, is an extremely good model.

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

My Lords, I am tempted to open by invoking, if not the Health Protection Agency, then perhaps the protection of the local environmental health department, because conditions in this Chamber, at this temperature, are hardly conducive to anyone's good health. However, that is a matter perhaps for the House authorities to look at.

I rise to express the view that Clause 53 should not stand part of this Bill and to support my noble friend Lord Warner's Amendment 260. I do the latter on the basis that that would be a fallback position, because I entirely concur with the view expressed in particular by the noble Lords, Lord Turnberg, Lord Patel and Lord Walton, and the noble Baroness, Lady Finlay, who have of course such a distinguished history as leading clinicians in these and other medical fields. Part of the thrust of the argument is the need to maintain not only a functioning organisation which has, as we have heard, an international reputation, but also to ensure that any such organisation has the requisite degree of independence from Government-that is, the right and in fact the duty, as the noble Lord, Lord Turnberg, made clear, to advise the Secretary of State and the Government generally without fear or favour.

Amendment 260 would create an executive agency for the Health Protection Agency. It is arguable that executive agency status would not of itself lead to the required or desired degree of independence whereas perhaps a special health authority would conceivably achieve that. There is a difference of view from the Government about the status of a special health authority. Their preference for Public Health England is that it should be an executive agency. They argue that a special health authority would not be appropriate. They point to analogous situations of agencies created for the Medicines and Healthcare products Regulatory Agency and curiously, by way of analogy, the Met Office, as organisations which are deemed to have sufficient independent status, albeit operating as executive agencies of their respective departments.

Neither of those arguments can be sustained. The role of Public Health England is a much wider one than either of the two bodies to which their document published earlier this year refers. A regulatory agency is not the same as an organisation which has to advocate and oversee a wide range of services, such as Public Health England would be required to do, and the Met Office is hardly an organisation which is required to be independent of Government in preparing its weather forecast. The analogy is somewhat ludicrous.

There is also, of course, the very important point made by noble Lords about the need for independent status in order to attract some of the funding, both charitable and contractual, on which in particular the Health Protection Agency is critically dependent and which might be endangered by its absorption into Public Health England in a way which would make it clear that it is no longer independent. That is not to say that the creation of Public Health England in the form of a special health authority would not of itself be desirable. The bringing together of a range of functions under the auspices of Public Health England, although not, I would argue, the Health Protection Agency, would be welcome.

A number of professional bodies have commended the principle but clearly have reservations about how the new structure would work. The Association of Directors of Public Health, for example, makes it clear that Public Health England should include health protection and emergency planning, health improvement and health services in its main areas of work and, in addition, provide an independent science base and advice to the Government and the devolved Governments. One of the arguments against creating a special health authority was that it would not be able to deal with devolved Governments. I would have thought that that is something that the Government could deal with relatively easily.

The role of Public Health England should also support the national Commissioning Board and provide support for local directors of public health. However, the association expressed concerns about the role and status of directors of public health. We recently discussed some of those in Committee. It also had concerns about the input into the national Commissioning Board and the lines of accountability. We will have Public Health England, the clinical commissioning groups, the directors of public health and various other functioning arms of the National Health Service, and it is not clear how the relationship would work and, in particular, what the role of Public Health England would be. The association has argued strongly for consolidating public health capacity into Public Health England with overall responsibility for improvement, protection and promotion of health care, and for public health intelligence and analysis.

A number of questions arise in respect of the position of the Health Protection Agency. There is a need to maintain capacity within the service and particularly for robust arrangements for emergencies and for interim arrangements, pending the completion of the reorganisation. Perhaps the Minister, when replying, could indicate how far the department has been able to explore the issues of capacity and the position in relation to the provision of those emergency services. The point was also made that clarity is needed about responses to incidents at local, sub-regional and regional level. Again, perhaps the Minister could indicate how far discussions have gone and what proposals there are for ensuring that that response at the various levels indicated would be guaranteed by the new arrangements. There is also an issue about the role and responsibilities of the directors of public health and local health protection units. Again, perhaps the Minister, if she is not able to reply to that point tonight, could write to noble Lords about that.

A point was raised which I almost have to apologise for raising yet again, which is the position of second-tier authorities in connection with their responsibilities under the auspices of the Bill, and in particular their relationship with Public Health England. Concerns were also raised in a joint statement recently issued by the Local Government Association, the BMA, the Faculty of Public Health, the Association of Directors of Public Health, the NHS Confederation and even the Royal College of Midwives, a broad grouping, all of which have reservations, even though generally approving the thrust of the Government's policy. In particular, the case was made for public health arrangements to be organised at the different levels, at the "supralocal level" as they call it-that is to say, a conurbation area rather than just the individual local authority area-and at a subnational level. They supported an integrated model in which large local authorities might host subnational functions on behalf of Public Health England; in London, for example, where there is an elected mayor, or in Greater Manchester, where there is a combined authority, and perhaps other cases where authorities could come together. Again, it would be interesting to learn whether the department sees that as a potential way forward.

There is another serious range of issues around public health observatories, which have suffered a significant loss of capacity, according to the Select Committee's report. It would appear that 40 per cent of their staff are on fixed-term or temporary contracts and are unlikely to be retained. That is a very significant reduction in staffing of the public health observatories. It appears that 45 per cent of the capacity is likely to be lost by 2012. There is particular concern about the regional aspect of public health observatories. On a previous occasion I invited the noble Earl, Lord Howe, to indicate whether the future of the observatory in the north-east was secure, and I seem to recall that he thought that it was. Again, it would be helpful if we could hear what the Government's view is of the position of the public health observatories, which are an important ingredient in the provision of public health. In this context, the King's Fund pointed to the risks of the reorganisation creating a less effective local public intelligence network and significantly higher costs to directors of public health.

There is another organisation that has been identified as one that has uncertainties about its future: the United Kingdom Association of Cancer Registries, an organisation for cancer intelligence that, again, agrees in principle with the proposals. Its director, noting that the organisation's future would lie with Public Health England, said when he was giving evidence that he did not know yet what the structures would be and that there was uncertainty leading to the risk of losing skilled staff. It is interesting that the word "risk" crops up on the day when we have discussed risk registers. Perhaps in the fullness of time we might learn whether or not that particular risk is one of those identified in the registers which we spent an hour debating today.

The Select Committee, again broadly approving the thrust of government policy, expressed its concern in terms that I referred to in the previous debate, saying:

"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 ... 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 a clear structure of regional accountability".

I hope that the Minister will be able to indicate what kind of accountability and regional structures it is envisaged should be implemented.

In summary, the preference of the Opposition would be to see the Health Protection Agency preserved with independent status and to see Public Health England created as a special health authority, guaranteeing, at least to a degree, its independence, which cannot be guaranteed when, in the words of the Minister in the other place, it is simply another form of embodiment of the Secretary of State. For these reasons, the Opposition support the amendments. I will not be asking the House to divide now but this is a matter to which, in the absence of a positive response, we may well have to return on Report.

Photo of Baroness Northover Baroness Northover Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development) 7:15 pm, 7th December 2011

My Lords, the noble Lord, Lord Warner, is right about the international status of the HPA. In many ways, the proposals for Public Health England take its development a step further by building on its successes and bringing other organisations into the new Public Health England. Independence of scientific expertise, as he and other noble Lords have said, is indeed crucial. The noble Lord, Lord Turnberg, is right that the HPA has an outstanding international reputation, and the intention is to build upon that. I am glad that the noble Lord, Lord Beecham, welcomes at least some of these proposals, even if he is concerned in other areas.

When we discussed the provisions in Clause 8 that set out the Secretary of State's health protection functions, we touched on Public Health England and the abolition of the Health Protection Agency. Public Health England will be the national component of the new public health system and will be established as an executive agency as part of the Department of Health. It will bring together activity currently spread across a range of bodies, including the Health Protection Agency, into a new unified body directly accountable to the Secretary of State. It is important to emphasise that the agency is just one component of a system that is currently fragmented, opaque and spread across central government, local government, the NHS and other arm's-length bodies such as the Food Standards Agency and the National Treatment Agency. We want to replace all that with a clearly defined and much more unified system for protecting and improving the nation's health. Public Health England will be able to build on the recognised expertise within our public health system from a range of organisations.

We understand that there have been some concerns about the status of Public Health England. I hope that I can reassure noble Lords that further amendments in this area are not necessary; I hear what they say about those concerns but I hope that we can address them. As an executive agency, Public Health England will have a distinct identity and a chief executive with clear accountability for carrying out its functions. Its status will underline its responsibility for offering scientifically rigorous and impartial advice. As we design Public Health England, we will work closely with stakeholders to ensure that it offers support for directors of public health and their partners in the local system. We talked more about the local side of that the other day.

Many noble Lords have expressed concerns about the independence of Public Health England and the need to ensure that it has appropriate corporate governance. We have listened to what people have said. I can say for the first time that we can commit today that the chief executive of Public Health England will chair a board. This will include at least three non-executive members who will provide independent advice and support. We expect the non-executive members to have relevant experience in the public health field, local government or the voluntary and community or private sector in order to provide a broad range of experience and challenge and advise on how the organisation can maximise its income generation abilities. In addition, we will be looking to one of these non-executive directors to have the necessary skills to chair Public Health England's audit and risk committee, which will provide assurance on risk management, governance and internal control for Public Health England.

Photo of Lord Turnberg Lord Turnberg Labour

Am I correct in hearing that the chairman will be the chief executive appointed by the Secretary of State?

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

It is proposed that the chief executive, who will be appointed in an open competition, will chair the board. Does that answer the noble Lord's question? No.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

My Lords, that is great opportunity lost. If we are going to have an executive agency on the lines of the MHRA, that organisation has an independent chairman, not a civil servant. What we really want is an independent chairman. The majority on the NHS Commissioning Board are non-executives. I am very grateful to the Government for going some way, but a little stride further would be very welcome.

Photo of Lord Patel Lord Patel Crossbench

I agree with the noble Baroness, Lady Cumberlege. Why does the Minister not think that there needs to be an independent chair?

Photo of Baroness Northover Baroness Northover Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development) 7:30 pm, 7th December 2011

I thought that noble Lords would be delighted to hear my announcement, but I hear that they are less than thrilled. I will take that back and consider carefully what my noble friend has said about striding further forward, and see how best people's concerns can be addressed.

My noble friend Lady Cumberlege asked whether the public health community would be involved in selecting the chair and non-execs of Public Health England. We will give very serious consideration to how the chief executive and the non-executive directors are appointed although in the case of the chief executive the final decision must of course be with the Secretary of State.

Some noble Lords have suggested that a special health authority model might be appropriate and Amendment 260 would have that effect. The key issue here, as the noble Lord, Lord Beecham, correctly identified, is that Public Health England will exercise functions that are wider than just the health service in England. In particular, Public Health England will have UK-wide responsibilities. I heard what he said about believing the devolved Administrations could somehow or other be sorted out but I am not so certain. Public Health England will have responsibilities for highly specialised health protection functions such as radiation protection and will therefore need an organisational form that can operate across the whole of the United Kingdom, and a special health authority is normally established in relation to England only. It cannot be established under secondary legislation to exercise UK-wide functions that relate to reserved matters or in relation to functions in England that do not relate to the health service-that obviously would be a challenge.

On the points raised about Amendment 257ZA, I hope I can reassure noble Lords that the chief executive of Public Health England would be appointed through an open and fair competition and would be solely responsible for its day-to-day operation. Ministers will agree the business objectives for Public Health England and the chief executive will be responsible for putting in place the management structure and using the budget appropriately to deliver these. This operational freedom will be supported by a framework agreement between the Department of Health and Public Health England which will set out the roles and responsibilities of both organisations.

During an earlier debate the noble Lord, Lord Turnberg, raised the question-it has been raised again today particularly by the noble Lord, Lord Patel-about the ability of Public Health England to receive research grants. Public Health England will be able to receive research funding from most, if not all, of the sources from which the Health Protection Agency currently receives research income. In the light of the concerns that the noble Lord, Lord Turnberg, flagged up last time, I asked for an analysis of where the HPA currently got its research funding from, in terms of proportions, organisations, amounts and so on. I then asked what would happen in each case. I was reassured to see exactly how Public Health England would be eligible, right across the board it seemed to me, for the kind of grants that currently exist. I am very happy to discuss this further with the noble Lord if he wishes.

In particular, there was concern about what money could be received from the EU and it is very clear that, in terms of the funding rules on intergovernmental organisations such as the EU, the executive agency would no doubt work in conjunction with an academic or analogous institution, as is the case now, to apply for that kind of funding. I appreciate noble Lords' concern about that and how important it is that this is got right. I therefore hope that they will have a really good look at how this would carry across.

Clearly it is extremely important for Public Health England to have scientists who are not only independent but also able to publish-it is important for their own future careers as well as the work they are doing within Public Health England-and to continue to be able to publish. Public Health England would have a very important role in filling evidence gaps and building on the evidence base to improve and protect public health. That is a critical part of what it would be doing, so that would continue. I am not quite sure where the noble Lord, Lord Patel, got some of his concerns from but he is right to probe and to make sure that this is going to work in the future.

Photo of Lord Warner Lord Warner Labour

I am slightly bemused by what the noble Baroness has said on research. I would certainly like to know in writing, rather than poring through Department of Health files, what the risk assessment is of Public Health England losing research grants out of the total of £150 million that the noble Lord, Lord Patel, mentioned and in particular, whether it is at risk of losing the MRC grants that the noble Baroness, Lady Finlay, mentioned. We need something clear in writing and not just vague assurances. We also need some guarantees from the Minister about the right of people who are doing research in Public Health England to publish peer-reviewed articles without any censorship from the Department of Health and Ministers.

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

I am sorry if I am being at all opaque. As noble Lords have said, the HPA generates income and conducts research which it is in effect selling out. There is some commercially sensitive information in what I have here: I am sure that we can clarify it but I am a little bit concerned not to say something that is commercially sensitive. As I said, I looked all the way through here and have seen organisations such as the Wellcome Trust. In fact, I have just been passed a note with large writing saying, "A lot of this information is commercially sensitive but we will write saying what we can".

Photo of Lord Warner Lord Warner Labour

I do not wish to have any commercial-in-confidence information and I am sure my friends do not either. We want to know what is at risk out of the £150 million the Health Protection Agency is getting now under the new arrangements. If you can guarantee, in writing, that Public Health England is not at risk of losing any of that money I think we will be much more confident. We do not want the details of the commercially sensitive stuff we just want the global figure and the assurances of what it is at risk of losing.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

Can we also have the assurance that it will be eligible in the future to apply for a broad range of funding even if currently it does not hold a grant from a particular grant-giving body? I think that that applies to the MRC.

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

I hope the cameras are not shining down on this piece of paper of mine so I can try to give you some of the information that may be less commercially sensitive: there are organisations such as the Wellcome Trust and Research Councils UK. Noble Lords should be very reassured as to how this will work, but as a very junior Minister I have to be extremely careful.

The noble Lord, Lord Turnberg, flagged this up, I took it back and asked for a breakdown of the funding the Health Protection Agency gets. I asked in every instance what would happen in the future and I have a comprehensive answer because I thought it was extremely important. I hope noble Lords will be reassured both by my probing and these answers, even if I dare not reveal them all. I hope we can therefore write and reassure noble Lords that those working for Public Health England will indeed have access to the same kind of grants that they have at the moment.

Amendments 257A and 257B are minor and technical government amendments to Clause 54. These amendments would allow the Secretary of State or the Northern Ireland department acting alone to exercise functions in relation to biological substances for the whole of the United Kingdom. I was asked about sub-national structures. Indeed, Public Health England will have hubs. The precise details of these arrangements will be published shortly. As stated in Healthy Lives, Healthy People, we will provide further detail on the operating model for Public Health England.

I was also asked about emergencies. As I mentioned on the previous occasion when we debated public health, Public Health England will act on behalf of the Secretary of State as a category 1 responder. It will also be able to offer support or leadership in dealing with local incidents short of a full-blown emergency.

Reference was made to one or two other areas. If noble Lords will forgive me, I will write to them to sweep up what needs to be covered. I hope that noble Lords are reassured by what I have said. It is extremely important to the Government and to both Ministers in the Lords concerned with this matter that Public Health England is very strong and has the necessary independence. As the noble Lord, Lord Turnberg, put it, it should not be the mouthpiece of the Government. It needs to be able to conduct expert research. I hope that I have reassured noble Lords who have raised these very important points that all this is built into the Bill, and that the noble Lord will withdraw the amendment.

Photo of Lord Warner Lord Warner Labour

My Lords, my reaction is, "C+: Must work harder". The noble Baroness has given some reassurances but they are certainly not sufficient. She should have a lengthy chat with her noble friend Lady Cumberlege on the MHRA. I would be happy to join them as it is an interesting model and has a lot to offer. The noble Baroness, Lady Northover, may remember the Cadbury inquiry's report on the governance of companies in which it advised that there should be a separate chairman and chief executive. Therefore, the principle of promoting good governance through having a separate chairman and chief executive is well established in both the public and the private sector. She might think about that a bit more.

I do not know about other noble Lords but I was not swept off my feet by the assurances on research. We would like some good assurances in writing, particularly with regard to the ability of the new body to compete for MRC research funds. I continue to have concerns about the ability of any body in this position to publish peer-reviewed articles and findings from research that are uncensored. The road to hell is paved with good intentions. Once a body is inside the Civil Service code, the ability to publish independent utterances and research tends to become a bit more circumscribed. Therefore, we want further assurances in that regard.

I will want to discuss with my colleagues whether we will come back to this issue on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 257ZA withdrawn.

Clause 53 agreed.

Schedule 7 agreed.

Clause 54 : Functions in relation to biological substances

Amendments 257A and 257B

Moved by Earl Howe

257A: Clause 54, page 85, line 2, at end insert-

"( ) Any function conferred on the appropriate authority by this section may be performed by either the Secretary of State or the Department of Health, Social Services and Public Safety in Northern Ireland acting alone or both of them acting jointly (and references in this section to the appropriate authority are to be construed accordingly)."

257B: Clause 54, page 85, leave out lines 4 to 6

Amendments 257A and 257B agreed.

Clause 54, as amended, agreed.

Clauses 55 to 57 agreed.

House resumed. Committee to begin again not before 8.45 pm.