Health and Social Care Bill — Report (4th Day) (Continued)

– in the House of Lords at 8:42 pm on 29th February 2012.

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Clause 51 : Secretary of State's duty to keep health service functions under review

Amendment 141

Moved by Baroness Cumberlege

141: Clause 51, page 83, line 26, at end insert "and its Healthwatch England committee"

Photo of Baroness Cumberlege Baroness Cumberlege Conservative 8:45 pm, 29th February 2012

My Lords, this is a very simple and non-controversial amendment. Under Clause 51, the Secretary of State has a duty to keep under review the effectiveness of key bodies in the NHS. This is a crucial part of the Secretary of State's responsibilities in ensuring that he or she can exercise ministerial accountability for the health service. As this is a new body, through the Secretary of State, we will want to ensure that it is to carry out its functions effectively. Healthwatch England has to undertake certain tasks-for example, making annual reports to be laid before Parliament. Other reports will be at its discretion. These activities will be easy to monitor, but it will be much more difficult to assess the quality and the appropriateness of the advice and information or other assistance it chooses to give.

In her letter to noble Lords on 21 December, my noble friend Lady Northover told us that she did not expect Healthwatch England to give the CQC, the NHS Commissioning Board or other bodies an easy ride. She went on to state:

"We fully expect HealthWatch England to raise what at times may be awkward, difficult questions with respect to health ... and to be able to do this publicly".

It is the Government's intention to create not a patsy organisation but one that will be a champion of health and, on occasions, a difficult and awkward companion, focused on improving the quality of care in both health and social services. If it does not, it will not fully represent the voice of patients and service users.

The Care Quality Commission is one body listed in the clause. As the Bill stands, HealthWatch England will be a committee of the CQC. However, as we have discussed in many debates on the Bill-and I believe that more are to come when we come to debate the amendment of the noble Lord, Lord Patel-there will be a need for it to remain operationally independent of the Care Quality Commission. Therefore, I suggest that a review of the Care Quality Commission may not be an appropriate way of fully scrutinising the role of HealthWatch England, and that such scrutiny should be included in its own right in the clause.

That is why I tabled an amendment to add HealthWatch England to the list of bodies that the Secretary of State must keep under review. It would make it clear that HealthWatch England is independently accountable for how effectively it goes about its work, and cannot be overshadowed by-or hide behind-the review of the role of the CQC. I hope that my noble friend will look kindly on this simple and not very earth-shattering amendment. I beg to move.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

My Lords, I seek clarification on the amendment. I am sure that the noble Baroness, Lady Cumberlege, means well, but I note that the formulation she used was,

"and its Healthwatch England committee".

I am sure that it would have been possible to draft the amendment so that it referred simply to HealthWatch England, which would have avoided raising the question that we will come to at a later stage of whether HealthWatch England should be part of the CQC or any other august structure of the NHS. It is an important technical point; I hope that the amendment does not pre-empt any later discussions.

The motivation that the noble Baroness ascribed to the amendment-to demonstrate that HealthWatch England is independently accountable-is extremely important. It is entirely proper that HealthWatch England should be seen to be accountable to the Secretary of State. Certainly it should not exercise that accountability through another body, particularly one which it might on occasions wish to criticise, or about which it might want to raise important concerns or say that it has not done what it might have. Therefore, to demonstrate that HealthWatch England is independently accountable is an important objective. My concern is that the amendment may solidify something that at the moment comes later in the Bill, but which I trust will not remain there by the time we have finished Report: namely, the requirement that HealthWatch England is simply a committee of the CQC.

There is also a question about how accountability will work with respect to the Secretary of State. I suspect that the quotation from the noble Baroness, Lady Northover, to which the noble Baroness, Lady Cumberlege, so approvingly referred, about how difficult and painful would be some of the discussions with HealthWatch England, will sometimes apply also to the Secretary of State. When I was for a number of years director of the Association of Community Health Councils, I collected personal denunciations that I had received from successive Secretaries of State. They came from both parties: indeed, the most vehement denunciation was from a Secretary of State from my own party, who perhaps expected more from me than the criticisms that I had raised.

The point is that this will not be an easy relationship. Even the accountability that is envisaged by the reference to "keeping under review" will, I suspect, lead to tensions. However, I do not believe that one can have a body of this nature that is not accountable in some way to the Secretary of State. I simply look forward to the maturity of future Secretaries of State, of whatever party, who will recognise that a body such as HealthWatch England, and local healthwatch organisations, are intended sometimes to be irritants.

Photo of Baroness Wheeler Baroness Wheeler Opposition Whip (Lords)

My Lords, I would have liked to debate this amendment in the light of next week's debate on the status, powers and functions of HealthWatch England under Clause 180, when we will fully air once again the serious and continuing concerns across the House about the proposed relationship between HealthWatch England and the CQC, and hear from the Minister how the Government intend to address these concerns as they flesh out their proposals for healthwatch, and as the CQC comes under closer scrutiny. However, we support this amendment requiring the Secretary of State to include HealthWatch England in the organisations specified in the Bill that he or she must keep under review. Obviously we do this in the context of the separate independence of HealthWatch and not as a committee of the CQC.

However, it is also important to make it clear that we do not think that the measure in itself, or combined with other government proposals, for example, on the HealthWatch board membership, will be anywhere near enough to provide the independence that HealthWatch England needs if it is to be the robust and trusted patients' watchdog that is needed-and I emphasise trusted by the public.

The Minister must appreciate that the concerns across the House over the CQC's relationship are not addressed by referring to the close synergies between the two organisations or to the powers and influence of the CQC rubbing off on HealthWatch. In this context it is difficult not to dwell on the recent developments in the commission and the Department of Health performance and capability review of the commission. I say this as a genuine supporter of the CQC and its work-for example, last year's excellent special review of stroke services, and the one of residential care-but the department's major findings that the CQC needs to be more strategic, that accountabilities within the CQC are unclear, as well as the strong concern over the blurring of boundaries between the CQC board and executive team, do not augur well for the future relationship between the CQC and HealthWatch.

Of course, we will come to these matters in detail when we have the full debate on HealthWatch and local healthwatch organisations. I hope that at that stage the Minister will address these ongoing concerns, particularly about the clash of cultures between HealthWatch and the CQC, about public faith and trust and HealthWatch if it is to be formally linked to the CQC, and the lack of confidence in the new arrangements by the overwhelming number of LINks organisations and NALM. As the letter from NALM in the Guardian earlier this week underlined:

"Healthwatch will only be considered the true voice of the public, if it is seen to be independent of those it monitors".

I look forward to next week's debate.

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

My Lords, the Secretary of State has a duty to keep under review the effectiveness of the exercise of health service functions by certain national bodies. These bodies are listed at new Clause 247C, inserted by Clause 51 of the Bill.

As it is currently drafted, the Bill requires the Secretary of State to keep the effectiveness of the Care Quality Commission under review in so far as it is exercising functions in relation to the health service. However, it does not make explicit reference to the HealthWatch England committee. Yet, while HealthWatch England will be established as a committee of the Care Quality Commission, it will have its own statutory functions that it must exercise outside of the CQC's other functions.

This is, therefore, a helpful and welcome amendment from my noble friends Lady Cumberlege and Lady Jolly. It helpfully clarifies the distinction, in terms of the Secretary of State's accountability, between the exercise of functions by HealthWatch England and that of the CQC.

The amendment would add HealthWatch England to the list of bodies the Secretary of State must keep under review in respect of how effectively it exercises its functions in relation to the health service in England. Importantly, it would emphasise that HealthWatch England itself is responsible for exercising the statutory functions of HealthWatch England.

I have reflected on this and I will be supporting this amendment. I hope that other noble Lords will join me in doing so.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

My Lords, I think we are on a roll. I am very excited that we have had another amendment accepted. I very much thank my noble friend.

I appreciate some of the other points that have been made in this debate, but I think we will be debating them next week and perhaps we could hold our fire until then. Indeed, we have debated them previously and noble Lords will know that I am in favour of the present proposal in the Bill that HealthWatch England should be a committee of the CQC, and that is why I have chosen those particular words.

I am very grateful to my noble friend. I think this is the first time ever this has happened to me and I feel very pleased about it. Thank you.

Amendment 141 agreed.

Amendment 142 not moved.

Clause 52 : Secretary of State's annual report

Amendment 143 not moved.

Amendment 144

Moved by Earl Howe

144: Clause 52, page 84, line 6, at end insert-

"( ) The report must include the Secretary of State's assessment of the effectiveness of the discharge of the duties under sections 1A and 1B."

Amendment 144 agreed.

Schedule 4 : Amendments of the National Health Service Act 2006

Amendment 145

Moved by Earl Howe

145: Schedule 4, page 317, line 7, at end insert-

"( ) after paragraph (e) insert-

"(ea) paragraph 11 of Schedule A1,

(eb) paragraph 14 of Schedule 1A,"."

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

My Lords, in moving Amendment 145, I shall speak also to the other amendments in this group: Amendments 146, 147, 148, 148A, 151, 153, 154, 155, 156, 159, 160, 222 and 223.

The amendments in this group make a number of changes to some of the Bill's schedules of consequential amendments. These include, for example, consequential amendments to the Charities Act 2011 and the Health and Safety at Work etc. Act 1974, as well as a number of amendments consequential to the abolition of PCTs, SHAs and NHS trusts.

I am happy to explain any of these amendments, if noble Lords wish, but I hope that noble Lords will take it from me that these are minor, technical or consequential amendments. I beg to move.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues), Shadow Spokesperson (Health) 9:00 pm, 29th February 2012

My Lords, I have a question on Amendment 148A, which does not look small or minor to me. It concerns "Support functions of the Secretary of State". Why is it there? Why is it necessary? What does it aim to do?

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

My Lords, with the changes to the Secretary of State's powers under the Bill, it has recently become clear that it would be better to make express provision for the Secretary of State's powers to provide the support functions referred to in the amendment rather than rely on Section 2 of the NHS Act 2006 and risk any legal doubt. The amendment would maintain the current position under the Act and enable the Secretary of State to continue to carry out the activities concerned. The context of this is that Section 2 of the Act gives the Secretary of State a general power to,

"do anything else which is calculated to facilitate, or is conducive or incidental to, the discharge of", his duties in the Act.

The kinds of thing that come under that heading are support facilities and other assistance to the NHS-for example, the department purchases some medicines centrally for the NHS or provides advice to NHS bodies in carrying out procurement activity. It is also involved in arrangements known as NHS shared business services. It provides accounting, payroll and e-procurement services for all types of NHS organisation. There are benefits to the health service in ensuring that the Secretary of State remains able to co-ordinate activity centrally-for example, in certain cases it is likely to be financially beneficial to purchase services centrally.

Perhaps I may make it clear that Amendment 148A does not allow the Secretary of State to commission or provide health services. As noble Lords will be aware, the Bill requires the Secretary of State to exercise his functions to ensure that services are provided but removes the Secretary of State's specific powers to provide or commission NHS services directly. This amendment does not change that.

Amendment 145 agreed.

Amendments 146 to 148A

Moved by Earl Howe

146: Schedule 4, page 317, line 35, at end insert-

"( ) In subsection (9), for "section 224 or 226" substitute "section 225"."

147: Schedule 4, page 318, line 24, at end insert-

"( ) In the heading to the section, omit "Strategic Health Authorities and"."

148: Schedule 4, page 318, line 30, at end insert-

"( ) In the heading to the section, omit "Strategic Health Authorities and"."

148A: Schedule 4, page 319, line 33, at end insert-

"After section 254 insert-

"Support functions of the Secretary of State

254A Support functions of the Secretary of State

(1) The Secretary of State may, for the purpose of assisting any person exercising functions in relation to the health service or providing services for its purposes-

(a) provide (or otherwise make available) to the person goods, materials or other facilities;

(b) facilitate the recruitment and management of the person's staff;

(c) develop or operate information or communication systems;

(d) do such other things to facilitate or support the carrying out of the person's functions or other activities as the Secretary of State considers appropriate;

(e) arrange for any other person to do anything mentioned in paragraphs (a) to (d) or to assist the Secretary of State in doing any such thing.

(2) The power conferred by subsection (1)(a) includes power to purchase goods and materials for the purpose of providing them or making them available.

(3) The Secretary of State may, in connection with anything done under subsection (1), make available the services of any person employed by the Secretary of State.

(4) The powers conferred by this section may be exercised on such terms, including terms as to the making of payments to or by the Secretary of State, as may be agreed.

(5) In this section, "the health service" does not include that part of the health service that is provided in pursuance of the public health functions of the Secretary of State or local authorities.""

Amendments 146 to 148A agreed.

Amendment 148B

Moved by Baroness Murphy

148B: Schedule 4, page 320, line 4, at end insert-

"( ) After subsection (5) insert-

"(5A) The Secretary of State may by directions to the Board specify the minimum amount which the Board must spend in a financial year in making payments under-

(a) this section;

(b) subsection (1) of this section;

(c) subsection (3) of this section.

(5B) The Secretary of State may by directions to the Board specify-

(a) a body or description of bodies to whom payments under subsection (1) or (3), or under either or both of those subsections, must be made by the Board in a financial year;

(b) functions or activities, or descriptions of functions or activities, in respect of which such payments must be made by the Board in a financial year;

(c) the minimum amount that the Board must spend in a financial year in making such payments-

(i) to a body or description of bodies specified in relation to the year under paragraph (a);

(ii) in respect of functions or activities, or descriptions of functions or activities, specified in relation to the year under paragraph (b);

(iii) to a body or description of bodies specified in relation to the year under paragraph (a) in respect of functions or activities or descriptions of functions or activities so specified under paragraph (b).""

Photo of Baroness Murphy Baroness Murphy Crossbench

My Lords, the noble Baroness, Lady Cumberlege, expressed what we psychiatrists call a transient situational emotion of delight.

Photo of Lord Patel Lord Patel Crossbench

That is a serious mental condition.

Photo of Baroness Murphy Baroness Murphy Crossbench

Just as she was delighted at having her amendment accepted, I too am delighted that the Minister has expressed the fact that the Government will accept this amendment. I beg to move.

Amendment 148B agreed.

Amendments 149 and 150

Moved by Earl Howe

149: Schedule 4, page 321, line 18, at end insert ", and

(b) before paragraph (a) insert-

"(za) section 14A(1),"."

150: Schedule 4, page 322, line 11, at end insert-

"( ) After the entry for "LPS scheme" insert-

"NHS Constitution Section 1AA(2)"."

Amendments 149 and 150 agreed.

Schedule 5 : Part 1: amendments of other enactments

Amendments 151 to 159

Moved by Earl Howe

151: Schedule 5, page 326, line 37, at end insert-

"Health and Safety at Work etc. Act 1974 (c. 37)

(1) Section 60 of the Health and Safety at Work etc. Act 1974 (supplementary provision about the Employment Medical Advisory Service) is amended as follows.

(2) In subsection (1) for "each Primary Care Trust and Local Health Board" substitute "the National Health Service Commissioning Board or each clinical commissioning group (in relation to England) and each Local Health Board (in relation to Wales)".

(3) In subsection (2)-

(a) omit "for one of their", and

(b) for ""each" to "its"" substitute ""the National" to "arranges""."

152: Schedule 5, page 333, line 9, at end insert-

"Local Government and Housing Act 1989 (c. 42)

In section 2 of the Local Government and Housing Act 1989 (politically restricted posts), in subsection (6), after paragraph (za) insert-

"(zb) the director of public health appointed under section 73A(1) of the National Health Service Act 2006;"."

153: Schedule 5, page 334, line 24, at end insert-

"( ) in that paragraph, after "or" (in the first place it occurs) insert "a",

( ) in the words after paragraph (b) in that subsection, omit "authority or","

154: Schedule 5, page 334, line 33, at end insert ", and

( ) in the words after that paragraph, omit "Trust, Authority or."

155: Schedule 5, page 334, line 34, leave out from beginning to end of line 6 on page 335

156: Schedule 5, page 342, line 1, leave out "Minister" substitute "the Welsh Ministers" and insert "Minister considers" substitute "the Welsh Ministers consider"

157: Schedule 5, page 342, line 6, at end insert-

"( ) The Licensing Act 2003 is amended as follows.

( ) In section 5(3) (statement of licensing policy)-

(a) in paragraph (ba) omit "Primary Care Trust or", and

(b) after that paragraph insert-

"(bb) each local authority in England whose public health functions within the meaning of the National Health Service Act 2006 are exercisable in respect of an area any part of which is in the licensing authority's area,".

( ) In section 13(4) (authorised persons, interested parties and responsible authorities)-

(a) in paragraph (ba) omit "Primary Care Trust or", and

(b) after that paragraph insert-

"(bb) the local authority in England whose public health functions within the meaning of the National Health Service Act 2006 are exercisable in respect of any area in which the premises are situated,"."

158: Schedule 5, page 342, line 8, at end insert-

"( ) In section 69(4) (authorised persons, interested parties and responsible authorities)-

(a) in paragraph (ba) omit "Primary Care Trust or", and

(b) after that paragraph insert-

"(bb) the local authority in England whose public health functions within the meaning of the National Health Service Act 2006 are exercisable in respect of any area in which the premises are situated,".

( ) In section 172B(4) (procedural requirements for early morning alcohol restriction order)-

(a) in paragraph (d) omit "Primary Care Trust or", and

(b) after that paragraph insert-

"(da) the local authority in England whose public health functions within the meaning of the National Health Service Act 2006 are exercisable in respect of an area any part of which is in the area specified in the order,"."

159: Schedule 5, page 354, line 24, at end insert-

"Charities Act 2011 (c. 25)

In section 149 of the Charities Act 2011 (audit or examination of English NHS charity accounts), in subsection (7)-

(a) omit paragraph (a),

(b) omit paragraph (b),

(c) before paragraph (c) insert-

"(ba) the National Health Service Commissioning Board,

(bb) a clinical commissioning group,

(bc) trustees for the National Health Service Commissioning Board appointed in pursuance of paragraph 11 of Schedule A1 to the National Health Service Act 2006, or

(bd) trustees for a clinical commissioning group appointed in pursuance of paragraph 14 of Schedule 1A to that Act,", and

(d) omit paragraph (f)."

Amendments 151 to 159 agreed.

Schedule 6 : Part 1: transitional provision

Amendment 160

Moved by Earl Howe

160: Schedule 6, page 356, line 13, at end insert-

"( ) The amendment made by section 20(6) does not affect-

(a) the validity of any direction made by an instrument in writing which continues to have effect by virtue of sub-paragraph (2),

(b) any power to vary such a direction otherwise than for the purpose of directing the Special Health Authority concerned to exercise an additional function, or

(c) any power to revoke such a direction."

Amendment 160 agreed.

Amendment 161

Moved by Lord Fowler

161: After Clause 59, insert the following new Clause-

"Charges to overseas visitors

(1) The National Health Service (Charges to Overseas Visitors) Regulations 2011 (S.I. 2011/1556) is amended as follows.

(2) In regulation 6 (services exempted from charges) for paragraph (e) substitute-

"(e) the diagnostic test for evidence of infection with the Human Immunodeficiency Virus (HIV) and counselling associated with that test and its results;

(ea) all other services for the treatment of HIV provided to an overseas visitor who has been present in the United Kingdom for a period of not less than six months preceding the time when services are provided;

(eb) treatment for sexually transmitted infections other than HIV;"."

Photo of Lord Fowler Lord Fowler Conservative

My Lords, I have the slightly unusual advantage in proposing this amendment in that not only do I find that the arguments I will be using have already been set out in the press, but also that we are told how the Government intend to respond. I am extremely grateful to the Daily Telegraph for the information, and I only hope that it is correct. I also hope, as my noble friend Lady Cumberlege so rightly put it, that at the moment the Government are on a roll so far as these things are concerned. The background to the amendment is clear: it is about promoting better public health. That was also the message of the recent Lords Select Committee report on HIV/AIDS in the UK. I was chairman of the committee, and three of its members have added their names to this amendment, which reflects one of the proposals made in the report.

The general position is that more than 100,000 people in this country are now living with HIV. The number of patients has trebled in the past 10 years, but, just as serious, around a quarter of those who are infected do not know their condition. So we have 25,000 people in the community who are ignorant of their condition and who by definition are not taking the treatment that is available. They are risking their own health and lives and, above all from the public health perspective, they risk passing on and spreading the infection further. If this is put into financial terms, every extra person who is infected in that way will, over his lifetime, cost around £300,000 in medical treatment. We should remember that the National Health Service is already spending over three-quarters of a billion pounds a year on drugs alone for the treatment of HIV. So from every point of view, personal and financial, a new emphasis needs to be placed on prevention. I underline that the whole intent here is to prevent the further spread of HIV in England, which I believe would be much to the public benefit.

The amendment concentrates on one important, albeit limited, area where we can make progress. For conditions such as TB and hepatitis, treatment on the National Health Service is already given absolutely free for anyone in the country whatever their residence status, whether they live here permanently or are in this country for some other reason. The public interest is that the infection should be contained, and the same is true of all the sexually transmitted infections, including HIV, with the following exception. There is a group of patients where treatment is not free and where instead the National Health Service tries to make a charge. This group includes, for example, the young student from overseas with HIV who happens to be here for a short stay, or the failed asylum seeker who has been allowed temporarily to stay in the country because his own country may be too dangerous, or the undocumented worker. They are exceptions and, here, a charge is attempted. I say "attempted" because, in the vast majority of cases, these people have no resources in any event-some are virtually destitute. So we get the worst of both worlds. The National Health Service never gets any money, but the story nevertheless goes out that those suffering from HIV will have to pay, which obviously deters people coming forward for treatment and does the exact opposite of what we want in public health terms. There is now very strong clinical evidence that treatment reduces onward transmission and, according to the surveys that have been done, late diagnosis is far greater among people who are liable to charging.

So why do we have this self-defeating policy? The answer seems to be a fear that if we were to say that treatment was free there would be a sudden influx of HIV sufferers from abroad-health tourism, in other words. There are at least three reasons why this is not the case. The first is the position in Scotland and Wales, where treatment is totally free and there has been no sudden increase in overseas visitors to Edinburgh, Cardiff and other such cities. Secondly, my amendment makes it quite clear that there is no prospect of sudden treatment for someone who just flies in. It applies to people who have been in the United Kingdom,

"for a period of not less than six months preceding the time when services are provided".

That condition can doubtless be met in different ways, although the principle is very much the same. We are not in the business of providing HIV treatment for health tourists-that position is, I think, common to us all. That is not the effect of the amendment and it will not be the result of it.

Thirdly, the whole idea that you can suddenly arrive, pick up three months' supply of antiretroviral drugs and then fly out is utterly misjudged. The acknowledged experts in the treatment area in this country are the clinicians of the British HIV Association. I asked its chair, Professor Jane Anderson, what the treatment position would be. She gave me a number of possible situations of which I shall take just one. A patient arrives at an HIV service and sees a doctor or nurse and says that he has the HIV infection. He would be fully assessed medically and his background circumstances explored. Reasons for being inside the United Kingdom would be clarified at that stage. Health and social care needs would be reviewed and previous treatment centres identified and documented, and so it goes on. The net result of that is that it is very unlikely that anyone will be given three months' supply of antiretroviral drugs until the completion of three or six months.

I note two things about what Professor Anderson says there. First, the hospital would for clear reasons check on the immigration status in the UK of the person and seek to clarify it. Secondly, there is no prospect either of someone with HIV getting an instant supply of drugs.

Basically, and very shortly, that is the case. It is not, I stress, opening the floodgates or adding vast extra expense to the National Health Service. Indeed, the cost of the present policy to the National Health Service of every extra individual who is infected-£300,000 over a lifetime-needs to be recognised. We should also remember the considerable additional cost of people being deterred from coming forward who then have to be dealt with as an emergency in an intensive care ward, again at extremely high cost. The amendment makes not only humane sense but financial sense as well.

My point remains. If we are serious about public health and preventing new infections, the amendment should be supported. On the last occasion when we debated this issue the Government were encouraging in their response. I hope that tonight we will hear of action that will be to the benefit of the public in this country. I beg to move.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench 9:15 pm, 29th February 2012

My Lords, the noble Lord, Lord Fowler, was chairman of the House of Lords Select Committee on HIV and AIDS. Other members included the noble Baronesses, Lady Tonge and Lady Gould of Potternewton, and me, all of whom are in their places tonight to support the amendment. There is support across the House.

We found that there was a serious problem with people who became HIV positive and were living in England but did not qualify for free medicines. As the noble Lord, Lord Fowler, said, this is a public health problem. If people are HIV positive but do not know it, they can be a danger to others, by infecting them, and to themselves, as late diagnosis is a big problem and very expensive.

Infections are going up but someone on medication is less infectious. HIV/AIDS is an infectious disease. Other people with infectious conditions are given medication, and it is only right and wise that people who are infected with HIV and are living here should receive free medicines. HIV has not gone away-it is still increasing-and I hope that what we hear tonight will be confirmation of what we have heard in the press.

Photo of Baroness Gould of Potternewton Baroness Gould of Potternewton Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I had a long speech prepared but I have decided to reject it on the grounds that what we will hear tonight will be sound common sense. At the end of my speech on Second Reading I said that we would expect sound common sense, and all the indications are that this will happen. I sincerely hope that that is the case. I am going to make a very short contribution tonight-possibly the shortest I have ever made in your Lordships' House -and make two specific comments. I have argued and campaigned for this change for many years and, as I say, I hope that I will be able to say thank you.

Not only is this a health issue that will protect the public and bring HIV treatment in line with other infectious diseases-it will save valuable NHS resources in the long term. Principally, however, it is absolutely wrong to discriminate against any section of the community, as has been happening since this rule was first brought in in 2004. There is no question but that universal access, which this regulation will introduce, will be very important in ultimately reducing the cost to the NHS and in making it easier to have early diagnosis, thereby reducing onward transmission and guaranteeing hospital treatment if that is required. No deterrent should be put in the way of reducing transmission and treatment. I hope that that will now cease.

I hope, finally, that the concept of HIV tourism has been accepted as the myth that I have always believed it to be. I hope I am right in saying that I can genuinely thank the Government for a change to this rule. I dread the thought that the Minister is going to stand up and say the wrong thing now-I hope that that is not the case. I also want to thank those HIV organisations that, along with me and others, have campaigned for this change for many years. It has been a long and hard battle trying to persuade people that what we are asking for is, in many ways, not a big issue, although it is for those who are affected by it. Again, I can only say thank you, given that we are perhaps going to get regulations that will change that.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I did have a speech prepared in support of this amendment, based on the Welsh experience. However, after being woken by the "Today" programme telling me about a debate that we had not had-or that I thought I might have perhaps slept through-and announcing how the Government had responded in a way that I could not recall, I decided simply to bin my speech and live in hope. That is how we all are at the moment. We await the Government's response to the amendments.

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

My Lords, perhaps I may just say that when I was a Minister this was one of the few battles that I had and lost in the department. I shall be very glad if the noble Earl has had the battle and won-congratulations. I also say well done to all those who have been campaigning on this issue, particularly my noble friend Lady Gould.

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

My Lords, I am the lucky one who has drawn the long straw on this issue and I am very grateful to my noble friend Lord Howe for allowing me to have that long-rather than a short-straw. I am especially grateful to my noble friend Lord Fowler for bringing back this important issue. Again, I pay tribute to his enormous commitment in improving HIV services for all and, of course, to the outstanding work he did to protect the public from infection.

As I advised in Committee, the Department of Health has now concluded its review of the current policy, under which some overseas visitors are excluded from free HIV treatment. The review considered many issues, including the public health and economic arguments for providing free treatment. We also noted the recommendation and findings on this in the No Vaccine, no Cure report, published last year by the House of Lords Select Committee on HIV and AIDS in the United Kingdom, chaired by my noble friend Lord Fowler.

Since the debate in Committee we have also taken account of the views of other government departments with an interest in this issue and I am pleased to report that the Government have agreed to support the change that this amendment proposes. The evidence on the public health benefits of HIV treatment is compelling. Research published last year, and subsequently reviewed and endorsed by our own Chief Medical Officer's expert group, shows that treatment reduces infectivity and onward transmission by up to 96 per cent. Reducing transmission will reduce the risk of new infections in the wider UK population and, as noble Lords have said, reduce the NHS costs associated with treating late diagnosis of HIV. Around half of new HIV diagnoses in the UK are diagnosed late; that is, after HIV treatment is clinically recommended. As the noble Baroness, Lady Masham, said, late diagnosis results in increased mortality and morbidity and more expensive treatment.

As my noble friend Lord Fowler said, it is estimated that there are 91,000 people living with HIV in the UK, of which one-quarter are unaware they are infected, which means they can continue to transmit HIV to others. Without access to treatment upon diagnosis there are no or few incentives for testing. Amending these regulations will remove this barrier. It is also worth noting that the knock-on effect of improved public health protection for HIV is that reduced onward transmission will itself reduce the number of new cases within the overall population. The noble Baroness, Lady Gould, made reference to the importance of all of this. Earlier diagnosis, resulting from the testing of those previously put off by the prospect of charges, will reduce the number of late cases with more complex emergency healthcare needs. Together these benefits should reduce overall NHS costs significantly over the longer term.

Therefore, we agree that where clinically necessary we must provide HIV treatment, free of charge, to all who are present in the country, irrespective of their residency status. In doing so, this actually does no more than to bring HIV treatment in line, as others have said, with that for all other major communicable diseases, such as TB and hepatitis, and for all other sexually transmitted infections for which treatment is free without a qualification period. However, my noble friend's amendment as drafted proposes to include a residency qualification period of six months for HIV treatment. I understand why he put that provision in. Our view is that such a limitation could compromise our primary public health objective and that therefore there should be no such exclusion. However, I recognise that my noble friend had included this limitation to address wider concerns about attracting others to come here for treatment. We share those concerns.

The NHS is, and must remain, a national not an international health service. While it should also provide for the emergency and humanitarian needs of others, we are clear that in implementing this change we must avoid creating an incentive for people to travel to the UK solely for the purpose of free HIV treatment. In fact, they should not have to; there has been huge progress globally on increasing access to free or subsidised HIV treatment. Some African countries have achieved universal treatment coverage. Average treatment coverage in Africa has increased to almost 50 per cent, with even higher treatment coverage in eastern and southern African. While the different models of healthcare systems in other countries make direct comparisons difficult, research suggests that free HIV treatment is available, regardless of a person's residency status, in France, Spain, Holland, Italy and Portugal. The noble Lord mentioned the situation in the rest of the United Kingdom.

The Department of Health is already in the process of drafting, with HIV clinicians and others, new clinical guidance to support implementation in a fair and consistent manner. This will limit the extent of immediate access to drugs after a person is diagnosed and allow for continued review of the duration of any drug supplies before another visit is required. So it simply will not be the case that tourists can get off the plane and access immediate long-term supplies of drugs. If clinicians identify a person who is in the country just to receive free treatment, the NHS will not provide it unless there are exceptional circumstances, such as extreme infectiousness or pregnancy. Treatment for any conditions other than HIV itself remains chargeable.

Furthermore, we will continue to monitor any change in new HIV diagnoses in the UK of HIV infections acquired abroad. We will strengthen our current monitoring and collect additional anonymised data on residency status that will help to identify any abuse. In addition, we will maintain existing stringent procedures to check for fraudulent registrations at GUM clinics. It will also remain the case that receiving HIV treatment will not be sufficient to overturn an immigration requirement to leave the country and there are no provisions under the Immigration Rules for a person to travel into the UK in order to access the NHS.

To conclude, I am very grateful for the opportunity to discuss this important issue again and I am very grateful to noble Lords around the House for all their work over a number of years. I pay tribute also to the noble Baroness, Lady Thornton. This is a very sensitive issue and I appreciate the constructive way that people have dealt with it. There is a compelling public health case in support of this amendment which we cannot ignore. However, while safeguarding our overriding responsibility for public health, we are clear that the change this amendment proposes should not be seen as an incentive for travel to the UK for the purposes of obtaining free HIV treatment. We will therefore be introducing strong safeguards in our front-line procedures in clinics to address this.

Having said that, the Government support the change that this amendment proposes but I am asking my noble friend to withdraw it for now, for three reasons. First, on a technical point, the proposed change is to secondary regulations. It is not normal procedure to amend such regulations through a primary Act. Secondly, as I have indicated, the amendment includes a six-month exclusion period that we do not support. Thirdly, the department needs some time to finalise the clinical procedural safeguards and monitoring processes that I have set out.

However, in seeking withdrawal, I offer on behalf of the Government an absolute commitment that the department will introduce a statutory instrument to amend the current exemption, so that the exemption from charges for treatment of sexually transmitted infections will include HIV. The change would be effective from October this year, and we would anticipate laying the amending SI before the Summer Recess to achieve that effective date. As my noble friend Lord Fowler said, this makes economic and human sense. I hope that my noble friend will understand and agree to the process that I have proposed as the most effective way of delivering the mutually desired outcome of his amendment, for which he and others have long campaigned.

Photo of Lord Fowler Lord Fowler Conservative 9:30 pm, 29th February 2012

My Lords, let me say first and foremost that I am extraordinarily grateful, as I think all who have signed this amendment are, for that reply and the way in which my noble friend gave it. We are grateful for the absolute commitment that she has given. I have had commitments before; I do not think I have ever had an absolute commitment, but I do not think that there is any prospect of withdrawal from it and I am grateful for that. I thank the Ministers for all that they have done. Perhaps I might also thank the public health officials, who I know have worked extremely hard to get a sensible outcome on this. We do not often thank the officials in this House, but in this case I will.

I thank the noble Baronesses, Lady Masham and Lady Finlay, both of whom spoke, and of course I thank the noble Baroness, Lady Gould, who has long campaigned on this issue. As she said, there are very important organisations which have campaigned and put forward proposals over the years. The National AIDS Trust has taken a lead, as has the Terrence Higgins Trust and the British HIV Association. All of them have spoken with the same voice and their campaign has gone on not just for a few months but for six, seven or eight years. This is an extraordinarily good culmination to all those efforts. I congratulate again the Government. It reflects great credit on them and on the Department of Health that they have accepted the case and that common sense, frankly, has triumphed.

I would just add this to my noble friend. I notice that the Terrence Higgins Trust produced a document called HIV and Sexual Health: 12 things the Government can do. They have done one of them now with an absolute commitment. It would be wrong for me to say that they still have 11 to go, as I think they have done some of those as well, but there are other things to do in this area. It is an important area of public health. It does not get the public attention that it deserves but in my view it is absolutely crucial. I congratulate the Government and thank them for their reply. I beg leave to withdraw my amendment.

Amendment 161 withdrawn.

Amendment 161A had been retabled as Amendment 163AA.

Amendment 162

Moved by Baroness Cumberlege

162: After Clause 59, insert the following new Clause-

"Public Health England

(1) Public Health England shall be an executive agency engaged in the exercise of public health functions accountable to the Secretary of State.

(2) Public Health England shall have a board chaired by an independent chair.

(3) The board shall have a majority of independent non-executive directors appointed by the Secretary of State.

(4) Any appointment of the independent chair or independent non-executive directors of Public Health England shall be made by the Secretary of State after consultation with the Faculty of Public Health and such other bodies as the Secretary of State considers appropriate.

(5) Public Health England shall be able to-

(a) undertake independent research;

(b) bid for funding for research from research councils, charities and national and international funding agencies;

(c) publish research findings;

(d) tender for contracts, including research for work related to the functions of The Agency."

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

My Lords, this amendment refers to the setting up of an executive agency, Public Health England. I thank noble Lords who have put their names to this new clause. I sense that there is a spirit of generosity on the Front Bench tonight and I hope that it will not evaporate before we conclude this debate.

Nowhere in the Bill is Public Health England mentioned. The information comes to us not through the Bill or its schedules but through the White Paper Healthy Lives, Healthy People. It therefore has no legitimacy in primary legislation but we know that it is the intention of the Government. We are told that Public Health England will have a mission across the whole of public health: protecting the public from health threats; improving the healthy life expectancy and well-being of the population; and improving the health of the poorest, fastest. Public Health England is to be an advisory service with a civil servant as the chief executive-there is no mention of a board, just the chief executive. I find this extraordinary. As the noble Lord, Lord Warner, mentioned in Committee, this model flies in the face of the UK's corporate governance code, which states:

"There should be a clear division of responsibilities at the head of the company between the running of the board and the executive responsibility for the running of the company's business".

If that is important for the corporate world, how much more important is it for safeguarding and improving the nation's health?

What is being proposed has no division between the board and the executive, because there is no board. How strange. No, not strange-not right and not good enough. The role of the board is essentially to challenge the executive, to ask awkward questions, to be independent and to provide oversight, leadership and vision. This poor executive is an orphan; he or she is operating without a parent. In the model proposed, Public Health England is in the cosy embrace of the department, with a civil servant directly accountable to the Secretary of State. It is a model that produces a fire blanket to extinguish any spark of innovation or risk-taking.

Despite recent revelations I am a huge admirer of the Civil Service, but I think that your Lordships will agree that the people who enter it are not the world's greatest entrepreneurs or risk-takers. If they were, we would be in trouble; that is not their role. That is recognised in the department's operating model and endorsed by my noble friend Lady Northover in her letter to us dated 21 December, where we learn that there are to be three non-executive members-note, non-executive-not directors. Theirs is not to direct, unlike the new Commissioning Board, or indeed NICE or other government agencies, but to provide independent advice and support. Support is comforting and advice can be ignored; neither element has clout. However, these members are to be trusted, since one will chair the agency's audit and risk committee.

I suggest to my noble friend that here is an opportunity to make the non-executive members directors and to appoint one as the independent chairman of the agency board. I hope that my noble friend will consider this and meet us, along with other Ministers, in order to discuss this further-there is an opportunity before Third Reading-so that we can see what progress we can make.

The essence of public health contains the basic principle of social justice. It is to ensure that people have access to the essentials for a healthy and satisfying life. To achieve that often involves conflict with Government. As the Secretary of State states in his foreword to the White Paper, we need,

"a radical shift in the way we tackle public health challenges. We have to be bold because so many of the lifestyle-driven health problems we see today are already at alarming levels. Britain is ... the most obese nation in Europe. We have among the worst rates of sexually transmitted infections recorded, a relatively large population of problem drug users and rising levels of harm from alcohol", and he goes on. Nobody can challenge the Secretary State's ambition or commitment to public health; it is quite remarkable. He goes on to say:

"The dilemma for government is this: it is simply not possible to promote healthier lifestyles through Whitehall diktat and nannying about the way people should live".

He is 100 per cent right. That is why we need an independent board that can give unpopular messages straight to the public-a board that can check the veracity of research, unfettered by political pressures. It is a matter of trust-the public's trust that they are not being manipulated by politicians of any colour; the trust of would-be research funders that their funds are safeguarded by an independent organisation; and trust that Public Health England has the well-being and safety of the public at heart.

BSE demonstrated the importance of scientific advice being seen to be impartial and free from political influence. The episode had a lasting impact on public trust. Independent experts and the medical professions are far more likely to be trusted, and their advice acted on, than any Government. A recent Ipsos MORI poll found that 93 per cent of the public felt that it was important to have an independent organisation providing advice on protecting people from new diseases and environmental hazards, and helping health services to prepare for and respond to emergencies. That is an incredibly high level of trust, especially when it is compared to trust in politicians. Only 14 per cent of the public think politicians tell the truth and I am sorry to say that only 17 per cent trust government Ministers. Our present Ministers on the Front Bench are excluded from this.

I am very grateful to noble Lords who have put their names to the amendment, which seeks to ensure that Public Health England, as an executive agency, is accountable to the Secretary of State. It will have a board with an independent chair and non-executive directors appointed by the Secretary of State after consultation with the Faculty of Public Health and such other bodies as he considers appropriate. It will undertake independent research and will be able to bid for funding from research councils, charities and national and international funding agencies. It will publish its findings and tender for contracts, including research contracts, for its related functions.

In Committee, the noble Lords, Lord Turnberg and Lord Patel, among others, expressed concern at the abolition of the Health Protection Agency. It is a much admired, non-departmental public body, which is soon to be abolished. The noble Lords expressed deep concern about the future funding of Public Health England and its ability to finance and carry out world-class research.

In her letter, my noble friend Lady Northover states that,

"the funding rules of intergovernmental organisations such as the European Union may limit the capacity of an Executive Agency to apply directly to them for research funds".

The position is not clear and the Government are in the process of clarifying it. I ask my noble friend: has the situation been clarified? This is critical, as the HPA currently derives more than half its annual operating costs from external sources. It cannot attract and retain world-class researchers without the necessary resources and taxpayers will not be forgiving if more is demanded of them to fill the void. Therefore, I urge my noble friends and the Secretary of State to agree to the proposed new clause.

The Secretary of State has suggested to me that the Chief Medical Officer should chair the board but that is not a solution. The CMO already has two important jobs-those of being CMO and chairing the NIHR. Nor does that solve the problem of independence. Therefore, I hope my noble friends will reconsider and put forward an acceptable proposition for noble Lords to consider. I beg to move.

Amendment 162A (to Amendment 162)

Moved by Lord Beecham

162A: After Clause 59, line 3, leave out from "be" to end of line 4 and insert "established as a Special Health Authority"

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Health) 9:45 pm, 29th February 2012

My Lords, as the noble Baroness might have said, but did not quite, Public Health England has been conjured out of the ether rather than having been approached in the way one might normally have expected as regards a subject to be included in the Bill. The body constitutes a significant change of policy and direction which ought to have brought before us by the Government and not left to the noble Baroness and others to raise as a consequence of their failure to do so.

It is instructive to look at the comparison between the executive agency model which the Government have chosen to adopt and the special health authority model to which my amendment refers. I say immediately that I agree entirely with the noble Baroness's analysis of the situation as it will obtain under the Government's proposals-not legislative proposals-in terms of the independence of the organisation. I share many of her doubts about other aspects, including the impact on the income which is currently derived-to the extent of, I think, £150 million a year-by the existing organisation: namely, the Public Health Agency.

The critical definition of the role of Public Health England was provided in a debate in the House of Commons by the Minister of State, Paul Burstow, who said:

"In legal terms, Public Health England and the Secretary of State are the same thing, and Public Health England will not be provided for in primary legislation".-[Hansard, Commons, 7/9/11; col. 412.]

That set the tone of what has subsequently emerged as the Government's policy. There are Cabinet Office guidelines on the attributes of executive agencies. They are effectively threefold. The first is that an executive agency is independently accountable within the government department. Secondly, an executive agency has to be financially viable. Thirdly, and critically, executive agencies should be,

"clearly designated units ... which are responsible for undertaking the executive functions of that department, as distinct from giving policy advice".

One would imagine that the giving of policy advice in the area of public health would be a prime function of the body charged with the responsibilities that we anticipate will fall to Public Health England. As an executive agency, it would not be in a position to offer that critical element which is so indispensable to a proper development of policy and monitoring of policy in this arena.

As to the structure of the organisation, the noble Baroness has rightly referred to the curious proposal that the chief executive will establish an advisory board. PublicHealth England's Operating Model states:

"The Chief Executive will establish an advisory board to provide external challenge and expertise".

I stress "external". The most recent document, with the snappy title Building a People Transition Policy for Public Health England, states in terms that:

"Staff in Public Health England will be civil servants whose conduct will be governed by the Civil Service Management Code".

It goes on to say, as the other document indicated, that there would be,

"an advisory board to provide external challenge", and the,

"current intention is that the chief executive will chair the board, which will", as the noble Baroness indicated,

"include at least three non-executive members".

That is the model that the Government seem to prefer. However Public Health England will have a huge role. Its incorporation within the department will virtually triple the size of the department. It will have enormous responsibilities, ranging from managing disease outbreaks to running specialist reference laboratories and regional laboratories, and providing-critically-information and intelligence support in respect of, for example, cancer registries and public health observatories. These are massive responsibilities and there will be no legal or constitutional separation from ministerial control.

In this arena, as we debated and determined when we were talking about the position of directors of public health within local government, there is a critical need for independence. I am grateful to the Government for reinforcing this-it is to be seen in the arrangements made for local government. However, what is good for local government in this respect does not appear to be good for central government because that independence is patently lacking. I will allude to the position of staff as civil servants a little later.

Contrast that model of the executive agency with the position of special health authorities. They are defined as,

"health authorities that provide a health service to the whole of England".

They are exemplified by the National Blood Authority, and,

"are independent, but can be subject to ministerial direction".

There are 10 such bodies at the moment, including the Health Research Authority, the National Treatment Agency and the NHS Litigation Authority. Ironically, they will include the NHS Commissioning Board when it is formally constituted. The employees are public servants, not civil servants, and are not therefore subject to the Civil Service Code. That has some interesting implications.

I must refer to the recent case of Professor John Ashton of Cumbria-a distinguished director of public health who had the temerity to join 400 of his professional colleagues in writing a letter, under the auspices of the Faculty of Public Health, critical of the Government's proposals in this area. He received a rebuke from the primary care trust that employs him. I do not know whether or not he is right, but he believes that it may have been instigated by the department. I know that the Secretary of State has indicated that he had no role in it, and the noble Earl seems also to be indicating that the department had no role. I accept that of course, if that is what is being said. However, it is interesting that the primary care trust nevertheless felt obliged to take the step of rebuking Professor Ashton and calling him to a meeting. If that is indicative of how a serving, distinguished and leading public servant in the realm of public health is treated under the present dispensation, one wonders what would happen under the regime that is being established, which will be even less accepting of the independent nature of the role of its chief officers.

The question of independence remains very much at issue. I concur with the questions raised by the noble Baroness in Committee about income-raising. We received some rather broad assurances that all would be well. Half of the Health Protection Agency's income is raised externally-as I said, in the region of £150 million. The Government said that they would set up a mechanism to ensure that income-generation activities of the Health Protection Agency can be maintained. When the Minister replies, perhaps she can tell us how far the Government have got in developing proposals to establish that mechanism.

Finally, when we were debating this in Committee, the argument was advanced-it has also appeared in other places-that because the function is not limited to England, because there are implications for disease control and the like which cannot be confined within the national borders and potentially reach to the territories of the devolved Administrations, somehow we cannot establish it as a special health authority. That seems to me to be hardly an insuperable obstacle. Have any approaches been made to the devolved Administrations to see whether they would have any objection to there being a special health authority? I should have thought that they might prefer a special health authority, given that it would not be, as Mr Burstow, described it, simply a manifestation of the English Secretary of State. I may be wrong, but I wonder whether the Government have taken any steps to ascertain the views of the devolved Administrations. If it were not unacceptable to them, I can see no objection to creating a special health authority for that purpose.

Although I warmly endorse the thrust of the amendment moved by the noble Baroness in having an independent chair, I would go a step further to have a completely independent special health authority in place of what the Government propose. She clearly wants to discuss matters further. I hope that the Minister can give an assurance that she will take the matter away to consider it. I apprehend that it is unlikely that the noble Baroness will seek to take the opinion of a fairly empty House tonight, but there might be an opportunity at Third Reading. This is too important a matter to be left in abeyance for a decision to be reached by default.

I commend the amendment moved by the noble Baroness, but seek to extend it in the way that my amendment describes. I beg to move.

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

It may be for the convenience of the House if I point out that, as Amendments 162A and 162B are amendments to Amendment 162, we have to dispose of them first and then come back to Amendment 162.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, I support Amendment 162, moved by the noble Baroness, Lady Cumberlege. It is vital. The Health Protection Agency is admired across the world. It does vital work and important research. We cannot afford to lose something which is so effective. I see no reason why it should not have an independent chairman. It is also a very interesting idea to have a special health authority. When we were taking evidence on the Select Committee on HIV, the Health Protection Agency said that there were many concerned people not just in England but across the world, because they depend on our advice. That is why independence is so important. We cannot lose something so good.

Photo of Lord Patel Lord Patel Crossbench 10:00 pm, 29th February 2012

My Lords, I wish to speak to the amendment in the name of the noble Baroness, Lady Cumberlege. Of course, the amendment of the noble Lord, Lord Beecham, is attractive. It would give Public Health England independence as a special health authority. However, the Government are obviously not ready to accept that, otherwise why would they have abolished the HPA? We would be recreating the HPA if it were a special health authority.

However, I commend the Government on giving public health a high profile, indicating that they want Public Health England to be closely associated with, and be accountable to, the Secretary of State. Public Health England needs to be a body that is nationally and internationally recognised for the authoritative work that it does, as the HPA does now, for the advice that it can give and for attracting high-profile public health specialists. For that, it needs high-calibre leadership. An executive agency that does not have an independent chair or non-executives who will support a high-calibre chief executive will not be recognised or gain people's confidence.

I have wondered where the model comes from and I think that I now know. I wonder whether the Secretary of State has made a trip to Atlanta, because the model is exactly like that of the CDC. The Centers for Disease Control is a federal executive agency. It has a board but it does not call itself that; it calls itself a committee of advisers. It has a high-profile chairman, and the other non-executives are also high profile. However, it is an independent body. It is able to give policy advice and is not restricted in doing so. However, that model does not quite fit in for England because, apart from being different, our system is different when it comes to having an independent chair with non-executives. Its function is advisory because it belongs to an executive agency and not a special health authority; otherwise its function would be different. That does not preclude Public Health England from having an independent chair, and I should like to hear why the department thinks that it does. I do not see that the accountability changes at all. Public Health England, being an executive agency, will still be accountable to the Secretary of State. In fact, that would strengthen it.

I agree with the noble Lord, Lord Beecham, that executive agencies are constitutionally part of their parent body, and those employed within them are governed by the Civil Service code of conduct. This includes rules and restrictions on what they may say in public, including before Select Committees, about government policy. I think that an independent chair helps to mitigate this. Because of the critical role that Public Health England will have, this will be important. If it is to be an executive agency, it is vital, for the sake of public trust and confidence, that the Government ensure that the arrangements for the new body provide it with a sufficient guarantee of its independence. Only through being perceived to be independent of government will Public Health England establish a reputation for independent, evidence-based and, above all, trusted expertise.

The model of a single independent organisation employing a large number of public health specialists is an attractive one-one which has worked to great effect, as in the case of the Health Protection Agency. We have an agency that is partly independent: the MHRA. The MHRA has an independent chair, it is accountable to the Secretary of State and it gives policy advice. Perhaps the mechanisms for delivering that policy are different, so that it can be managed without breaking any rules. I do not agree that there are EU rules that forbid it to bid for external funds. I would like to hear which EU rules those are. There are mechanisms for getting external funds through a different arrangement, but that does not forbid it to access external funds.

HPA has built up an international reputation. Its expertise in carrying out contract research is such that it attracts half its current budget from external funding. Are we going to allow a system based on somebody's whim to end all that? If we are, we will have to ask ourselves a question. Do we want a structure that seems closer to the Civil Service and to politicians but that weakens an internationally recognised body which is powerful and able to deliver the high-profile agenda which the Government have set for Public Health England? We need to examine that. I feel that there is room for discussion so we can arrive at a compromise solution that will achieve all this.

The amendment addresses other issues to which the noble Baroness has already referred, including independent research, published researched findings et cetera, all of which should be possible for Public Health England, as an agency of the department, to accomplish. I hope that the Ministers and the noble Baroness will consider these suggestions. Let us give this serious thought. Let us not reject it out of hand simply because, at half past 10 at night, we do not have time.

Photo of Lord Warner Lord Warner Labour

My Lords, I rise because I have added my name to the amendment of the noble Baroness, Lady Cumberlege. I did so because there is a part of me which actually wants to save the Health Secretary from himself. He is going down a path-for good reasons, in some ways-by which he wants to be accountable, through the department, for public health in this country. I understand that, and I understand some of the arguments that the Government have put forward about ministerial responsibility and accountability which were at the heart of some of the thinking behind the Public Bodies Bill. I can understand why that will happen. However, this is an area where science is of the essence. The Secretary of State and the Department of Health's management and credibility in public health would be seriously damaged if the scientific underpinning of it were not sound.

The CDC in America-and I have been to the CDC in my visits to America-is an executive agency, but it is a very special executive agency. It has a route into Congress to secure its funding. That makes it very different from executive agencies in this country. It has that route into Congress because it has a very strong scientific reputation. It is the credibility of its scientific reputation that enables it to be both independent and a part of the federal Government.

We cannot create that quite as easily with an executive agency here. I believe that the Government made a mistake, almost in a casual way, by abolishing the Health Protection Agency without being sure that they had another model to put in its place that would preserve that scientific independence and the kind of funding that the HPA was able to raise. We do not live in such splendid financial circumstances that we can casually toss away £150 million a year-which is the danger that we are in. I have not yet heard assurances from the Government about how they will protect access to that funding, and how they will protect the ability of people working in Public Health England to undertake independent research and be sure that their findings will be published without being censored in any way. We need absolute guarantees on that, and they should be in the Bill. That is why the amendment of the noble Baroness, Lady Cumberlege, is so convincing. I would prefer to have a special health authority, if we thought we could get one. We have compromised by going for an executive agency. However, the agency must have the kind of dimensions that are set out in Amendment 162.

I will say a few words about the issue of the chair. I heard the story that the noble Baroness, Lady Cumberlege, mentioned-namely, that the Secretary of State would be interested in the Chief Medical Officer being the chair of the committee overseeing the work of Public Health England. I am a member of the Science and Technology Committee. In two inquiries we came up against the issue that in the Department of Health, uniquely across Whitehall, we have a Chief Medical Officer who is also the Chief Scientific Adviser to the Government. Both jobs seem capable of keeping someone gainfully and happily occupied full-time for most weeks of most years. Adding the chairmanship of Public Health England would be an incredible proposition. There are already concerns in the Science and Technology Committee about combining the posts of CMO and Chief Scientific Adviser. There is an unresolved issue about how we will proceed on that. However talented Dame Sally Davies is, we do not want to muddy the waters further by asking her to take on the chairmanship of Public Health England.

We need to get to the bottom of the guarantees that are required to preserve the integrity, scientific independence and public credibility of Public Health England. If we are to have an executive agency, we need something very like what is proposed in the amendment of the noble Baroness, Lady Cumberlege. I hope that the Government will accept it and give us some certainty that the money that the HPA has raised in the past will be guaranteed as something that the new executive agency, Public Health England, will also be able to secure.

Photo of Baroness Jolly Baroness Jolly Liberal Democrat

My Lords, I will speak very briefly, because a lot has been said on this amendment, to which I was happy to add my name. I welcomed the amendment and the structure that it laid out. I am sure that my noble friend Lady Cumberlege will address the amendments to the amendment.

The issue is one of culture. The culture proposed by the Government does not achieve the desired vision for Public Health England. An executive agency is proposed that will be independent, able to speak out without check and research as it thinks necessary, with an independent chair and non-executive directors. At the beginning of Committee, I met the president of the Faculty of Public Health. In advance of this debate, I rang her this week and we spoke again. She expressed her anxiety about the structure proposed by the Bill.

The role of Public Health England should be to implement the policy made by the department. It should also have the opportunity to influence that policy. Clearly, the Government's structure does not allow for that. I would really welcome an explanation from my noble friend about the rationale for favouring an organisation that is lacking in independence and that therefore will also lack in public and professional trust.

Photo of Lord Turnberg Lord Turnberg Labour 10:15 pm, 29th February 2012

My Lords, I am afraid that my name is not attached to the amendment moved by the noble Baroness, Lady Cumberlege. I was not quick enough to get in the queue of people who wanted to get their names on this, but I have been banging on a little about the disappearance of the HPA and the need for an independent body just as is described in this amendment-and even better in the other amendments seeking a special health authority. I suppose we are not likely to get that this evening but we may be able to get somewhere with Amendment 162.

What I find very difficult to understand is why the Secretary of State would want to take this on. Having chaired the PHLS and then the HPA and now Public Health England, which is an even bigger body with even more responsibilities and a whole host of practical activities-scientific, laboratory, epidemiological-why would a government department want to take that on? Is it that it did not trust the HPA? Is it to save money? Did the HPA in some way fail? What is the rationale for the Secretary of State to want to take it inside the department and lose that level of independence, that ability to look outside and that facility to take advice from independent chairmen and members of the board?

I find it very difficult to believe that if the department wants this job done-and I do not doubt that it wants this job done very well indeed-it cannot expect to do it as well within the department as if it allowed an agency that was directly responsible and directly answerable to the Secretary of State but had that degree of independence that would give confidence to the public and the profession that it was doing a good job. I find it difficult to imagine why that cannot be done, and I do not understand the reasons why not.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I also did not put my name on this amendment because there was not enough space for more than four names.

I have a concern that the Health Protection Agency itself may have been a bit like a prophet in its own land and that it was not recognised fully until now, when we see its disappearance, just how important the work is that it has been doing, both nationally and internationally. Apart from already earning money for the UK, its potential to carry on doing so in the emerging large economies in other parts of the world and expanding its scientific input is enormous. It has the role not only of public health but anticipating what threats may emerge in the future, particularly in the range of toxins that it looks at and studies.

These amendments seem to solve a problem that we have all heard about. We have all been at meetings; we have all met with the relevant people. I really hope that we will not just get told that this cannot happen for a variety of reasons. The amendments seem to be solving a problem that has only been created as a result of these changes. I cannot see that there is anything to lose, except that if the amendments are not accepted we might lose the capacity to earn international research funds in the future.

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

My Lords, noble Lords have raised a number of issues regarding Public Health England, many of which we discussed in Committee. Both then and today, we heard serious points very cogently argued, which we greatly appreciate. We have considered all these issues very carefully. Since Committee stage, the department has published more detail on the new public health system, including its operating model for Public Health England. The views expressed in Committee influenced the tone of those documents, and I hope that I can now reassure noble Lords that our proposals will give the agency the operational independence that it needs to become the leading organisation of its kind in the world.

The first point I want to stress is that Public Health England will function openly and transparently. Its operational freedom will be formalised in a clear and published framework agreement between it and the department. My noble friend's amendment proposes that the PHE board must have a non-executive chair and a majority of non-executive members. We have considered this at length and understand what the amendment aims to achieve, but we do not agree that this is the best option.

The Public Body Review was clear that Ministers should take more responsibility for arm's-length bodies. Cabinet Office guidance is also clear that nothing should undermine the direct accountability of an agency chief executive to the relevant Minister. We believe that there are sound and pragmatic reasons underlying that position, which could be put at risk by a governance structure dominated by non-executive representatives.

The public will look to the Secretary of State for leadership and accountability in protecting the nation from threats to health and they will be right to do so. The buck must be seen to stop with him. In the past, public health has too often been pushed to the fringe, which has been recognised by noble Lords. This arrangement brings public health centre stage. Instead of the NHS simply being a treatment service, public health in its widest sense will be central to the new arrangements.

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)

Does the noble Baroness not recall the reason why the Food Standards Agency was set up? The agency was given complete independence because the public had lost confidence in the role of Defra in relation to food safety. On public health issues, surely she can see that when she simply says that it should be a Minister who responds, the risk is that people will lose their faith in the fact that public health advice will not be impartial and independent. The Government are really putting at risk the integrity of the public health advice that is received.

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

I have heard what the noble Lord and other noble Lords have said in that regard. There have been very interesting debates over the role of the Secretary of State in the whole of the NHS. Public health is one part of that. It is interesting to see that in some areas, noble Lords would like the Secretary of State to be closer.

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)

Perhaps I may come back on that. Surely, it is very different. In relation to the National Health Service, we have been arguing that because of the need for parliamentary accountability, it is absolutely right that the Secretary of State should have the responsibilities that are now in Clause 1. But here we are talking about critical issues around public health where the need for independence is very important. Having professional advice on issues such as public health is very different from there being direction over the operation of the NHS.

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

As I have outlined, there is independence. It is key to the changes that we hope to put in place in terms of public health that it moves to the centre stage and that the Secretary of State has a much more direct line of sight in terms of promoting public health and the protection of the public. The Secretary of State will lead and have direct accountability for public health, which many people have welcomed.

Inserting an independent chair and board between him and the individual charge for the day-to-day running of Public Health England could blur those clear lines of accountability and undermine the chief executive without enhancing the agency's flexibility, responsiveness and effectiveness in dealing with threats. This is not to say that the chief executive should not face independent challenge from the board. On the contrary, the board will include at least four independent-

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

This is the Report stage so I hope that the noble Lord has a simple question for clarification.

Photo of Lord Warner Lord Warner Labour

My query is a point of fact. The Minister is putting great emphasis on the role of the chief executive. Could she tell the House if the chief executive has a scientific background which is relevant to public health?

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

Since the chief executive has not been appointed yet, I cannot give the noble Lord an answer. Perhaps I might be able to continue, especially as it is almost 10.30.

As I have said, the board will include at least four independent non-executive members of the highest calibre, bringing experience of public health, local government, the voluntary sector and business. The challenge they provide will be real and impossible to ignore. Public Health England will also have scientific committees set up to provide rigorous and impartial advice. Executive agencies are normally established administratively, without legislation, and that remains our intention in this case. I realise that my noble friend Lady Cumberlege may want to fix Public Health England's status in legislation to protect it from undue interference. Of course this is a valid objective, but I hope she will accept that the openness with which Public Health England will operate, and the nature of the Secretary of State's duty to protect health, would deter him from clipping Public Health England's wings. He would simply be limiting his own ability to fulfil his statutory duties. I also hope that my noble friend will consider whether the model that her amendment suggests is really in the best interests of public health. A significant advantage of the agency option is its flexibility, allowing Public Health England to adapt and stay fit for purpose without amending primary legislation.

The second part of the amendment focuses on research, to which a number of noble Lords have referred. We recognise the value of the research that the Health Protection Agency undertakes now, and the importance of it continuing. The Bill as drafted provides for the Secretary of State to conduct and commission research and Public Health England will exercise those powers. Noble Lords have expressed concern over Public Health England's ability to secure health protection research funding. We are satisfied that there is no point of principle preventing Public Health England applying for health protection research funding from external national and international partners, including charities and income generation from commercial contracts. I hope that I can reassure the noble Lord, Lord Patel, that Public Health England can also bid for EU funding, subject to Treasury rules. I hope also that I can reassure other noble Lords that there is no reason why these changes should jeopardise the outstanding reputation that the HPA has had in research.

More specifically, I am happy to be able to confirm that funding from the National Institute for Health Research for research into health protection will continue at its current level and that this autumn we will launch a NIHR research call to be awarded to Public Health England and academic institutions in partnership. Publishing public health research will not only be possible under the Bill as drafted, but also critical, as noble Lords have indicated, in ensuring that the public health community as a whole learns and progresses. It is also worth mentioning that we expect Public Health England's published data to be subject to the relevant code of practice on official statistics, which imposes strict limits on Ministers' access to certain information before it is released.

I am afraid that the amendments tabled by the noble Lord, Lord Beecham, while seeking to enhance Public Health England's independence, would blur the lines of accountability still further. Executive agency status, we believe, provides by far the most appropriate blend of operational independence and clear accountability. When we debated the special health authority model during the Committee stage, I did indeed, as the noble Lord said, refer to its impracticality. Special health authorities are established to exercise functions in relation to the health service in England, whereas Public Health England needs to exercise functions, such as radiological protection functions, in respect of Scotland, Wales and Northern Ireland. I should also point out that the NHS Commissioning Board will not, in the future, be a special health authority.

Perhaps I may comment further on the points made by the noble Lord, Lord Beecham. Special health authorities can sometimes perform functions outside England and Wales but the powers in the 2006 Act are such that the body can do work in Scotland and Northern Ireland only on the basis of income generation. Some of the functions of Public Health England will relate to reserve matters and we cannot look to the devolved Administrations to pay any money for such activity. Nor would income generation be the solution with the Secretary of State's non-health service-related functions in England. Public Health England may exercise functions that are wider than just the health service in England and Wales.

I give noble Lords every assurance that our proposals are designed to produce an agency that we can all be proud of. I hope that noble Lords at least understand the philosophy behind organising it in this way and trying to move public health centre stage and in the line of sight of the Secretary of State. We are firmly committed to making it a success. To that end, I, my noble friend Lord Howe and my right honourable friend the Secretary of State would be very happy to meet my noble friend Lady Cumberlege and other noble Lords to talk through these important issues in greater depth. I hope that noble Lords will accept that and not press their amendments.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Health) 10:30 pm, 29th February 2012

My Lords, I thank the noble Baroness for her reply to my amendment. The noble Baroness, Lady Cumberlege, will no doubt speak in relation to hers. I am afraid that I do not find the response convincing in a number of respects. In the first place, on the status of Public Health England as an executive agency, she did not really deal with the Cabinet Office guidelines, which I remind your Lordships state that an executive agency should be a clearly designated unit responsible for undertaking executive functions of the department that established it as distinct from giving policy advice. If, as I apprehend, it is the intention that Public Health England should give policy advice, it should not be an executive agency. If on the other hand the Government's position is that it should not give policy advice, it is a significant departure from what we have hitherto understood the role of Public Health England to be and certainly from the current arrangements. That would not be acceptable to this side and, I suspect, to other Members of your Lordships' House.

In anticipation of the Minister's reply, I raised the question of income. She referred to the possibility of raising income but did not set out in any detail the proposals which we had anticipated being forthcoming in light of the Government's previous statement that they would explain clearly how the income-raising capacity of the organisation would be maintained.

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

I thought that I had said clearly that there is no point of principle preventing Public Health England applying for research funding from external national and international partners, including charities, commercial companies, the EU, DH, UK research councils et cetera. There is no reason why this new organisation should not be as eligible as the previous one to apply for that research funding.

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

That evades the question of why the Government said they would be bringing forward proposals in that respect. If it was axiomatic that revenues could be raised in that way, presumably that would have been stated at the outset.

In any event, the further point I anticipated the noble Baroness would raise relates to the devolved Administrations. She referred to the 2006 Act as if that were immutable-which, of course, it is not. If it was thought that the position of the devolved Administrations was in some way a barrier to creating the agency because of the provisions of the 2006 Act, then this legislation could have amended that Act. Again there has been no indication in response to my question about whether this issue has been discussed with the devolved Administrations. As I say, I cannot imagine there would be any disadvantage to them in establishing Public Health England as a special health authority.

I regret that the thrust of my amendment has not adequately been dealt with. In the circumstances, I cannot do more than withdraw my amendment to the noble Baroness's amendment. I do not know whether she is content with the offer of talks. If I were in her position, I would be asking for a little more than only an offer of talks: I would be asking for some assurance that the Minister will take the matter away and consider it with a view to something happening at Third Reading. Without that assurance I fear that we will get no further forward than we are now-and that is not a satisfactory position for outside organisations such as the Faculty of Public Health, others in the professions or many Members of your Lordships' House. However, in the circumstances, I beg leave to withdraw Amendment 162A.

Amendment 162A (to Amendment 162) withdrawn.

Amendment 162B (to Amendment 162) not moved.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

My Lords, I thank all noble Lords who have taken part in the debate. I have not detected any demurring or a feeling that this was not a useful proposition to put forward; it is extremely important in the nation's health and should be pursued further.

I thank the noble Lord, Lord Beecham, for his suggestion of a special health authority. I can understand why that is quite appealing but, on the other hand, I am pragmatic. He said that he wanted to take my amendment a step further; I fear that that would be a step too far. I was trying to build on the concession that we had already been given of having three non-executive members. It is a compromise but I believe that politics is about the art of the possible and I thought this suggestion might appeal to the Government.

I thank the noble Lords, Lord Patel, Lord Warner and Lord Turnberg, and the noble Baronesses, Lady Masham, Lady Jolly and Lady Finlay, for staying until this late hour.

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 declare an interest as president of the Royal Society of Public Health, which I should have done in my earlier intervention. Can the noble Baroness-briefly but taking a little time-say whether she thinks from what she has heard from the Minister that she can now bring this issue back on Third Reading? I was not absolutely sure what the implications of the offer of talks meant in terms of our being able to debate it on Third Reading. I hope she takes it as an acceptance that the matter could come back on Third Reading.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

Perhaps I may address that in one minute's time.

I appreciate the commitment of my noble friend Lady Northover to this matter. I understand that the Government are anxious to build on public health, as the noble Lord, Lord Patel, said, and that they take this area with all due seriousness.

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

I assure my noble friend that we do indeed take this area very seriously. We are looking forward to the discussions that will happen with the Secretary of State, my noble friend and others.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

I thank my noble friend for that. I must say I am not reassured. What noble Lords were saying about credibility in the public mind is very important. There is a perception, whether we like it or not, that departments within Government tend to be closed-not secretive perhaps, but not very accessible to the general public. They have an image, and that perception is a reality in the public mind. Although there is an intention that they should be open and transparent, I am not sure the public see it like that.

On the question of trust, it was interesting that the Office for National Statistics at one time lacked a degree of credibility. People did not trust the figures that were coming out and so the Government of the day reconstituted it with the UK Statistics Authority and set it up in very much the way that we are trying to set up Public Health England. There is another model there. The Food Standards Agency, NICE and a lot of the new organisations-indeed the NHS Commissioning Board-are all being set up with non-executives and independent chairs. It seems really strange that here we have one of the most important new ideas coming forward with the establishment of Public Health England, trying to do something totally different.

I have never taken an amendment to Third Reading, nor have I tested the opinion of the House against the wishes of the Government whom I support. However, I have to say that I feel so strongly about this issue. I very much welcome the talks that have been promised but that does not rule out the possibility-I hope it will not become a reality-of taking this to Third Reading. I hope, if we meet the Secretary of State and our House of Lords Ministers as has been promised, that we will come to some accommodation. This is just too important to be left as it is and we need to take it further. I very much want to reach agreement in the future. It would not be a good idea to test the opinion of the House right now, because we would have a very small vote, but I do want to give notice that I feel strongly and will bring it back at Third Reading. However, as we cannot reach an accommodation at this time, I beg leave to withdraw the amendment.

Amendment 162 withdrawn.

Amendments 163 and 163A not moved.

Consideration on Report adjourned.

House adjourned at 10.44 pm.