Baroness Thornton:

Moved by Baroness Thornton

9: Clause 14, page 12, leave out lines 3 to 6 and insert—“(4) Each integrated care board must set out in its constitution—(a) the arrangements for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the board’s decision-making processes,(b) the process by which any appointment of a member to the integrated care board or any appointment to any committee or sub-committee of the integrated care board that has a commissioning function must be made so as to avoid the appointment of anyone who would be perceived to have a conflict or potential conflict of interest, and(c) the arrangements for ensuring that no member of any committee or sub-committee of the integrated care board who has a conflict or potential conflict of interest obtains access to information that might be perceived to favour the interest or potential interest.”Member’s explanatory statementThis intends to ensure conflict of interest rules that apply to an ICB also apply to commissioning sub-committees.

My Lords, we now come to the group of amendments where the wonderful harmony that has so far filled the House, with all the fantastic concessions and discussions, comes to a bit of an end. It concerns the make-up of the ICBs. I am very grateful to the Minister and the officials for the range of discussions that we have had and, it has to be said, for the consensus that there was and the brilliant initiative by the noble Baroness, Lady Walmsley, which led to Amendment 31. I commend the noble Baroness and the Minister for that amendment, which very successfully looks to the future of how ICBs might work in terms of an audit of the qualities, skills and so on that you need on an ICB. This group, however, reflects the fact that the House is concerned about who serves on ICBs now; they are being formulated and appointments made right now, and the Bill is the only opportunity we shall get to influence who serves on them and how that works.

This group of amendments addresses that issue in various different ways. I feel particularly strongly in my support of the amendment in the name of my noble friend Lord Bradley, for example. We have had a suite of amendments that have addressed the issue of mental health, but his particularly addresses the issue of ICBs. However, I will allow him to speak to that in due course.

This amendment addresses the fact that in the Commons there was significant discussion and debate about who should and who should not be a member of an ICB—and indeed, agreement was reached about who should not be eligible. Part of the solution came with the amendment which the Minister brought forward then to ensure that private organisations, other than charities, social enterprises and genuine not-for-profit organisations, will be unacceptable as members of the ICB. Employees of a private organisation, lobbyists and those very recently employed would also be barred from being members of an ICB.

That is in the Bill because it was recognised that it was not enough to rely on the governance around declaring conflicts of interest. The Bill is explicit in its exclusion. The current wording of new Section 14Z30(4) says:

“Each integrated care board must make arrangements for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the board’s decision-making processes.”

Paragraph 4 of new Schedule 1B says:

“The constitution must prohibit a person from appointing someone as a member … if they consider that the appointment could reasonably be regarded as undermining the independence of the health service because of the candidate’s involvement with the private healthcare sector or otherwise.”

There was agreement across the Commons and indeed across your Lordships’ House that that was the right way to move forward.

However, we believe that there is a loophole here. We have discussed this and I have exchanged emails with officials in the department about it, and we believe that the loophole still exists. ICBs will of course be able to set up sub-committees to do some of their work, and those sub-committees can and should be mandated to commission NHS contracts. We believe that the same restriction that the ICB board has on it should be placed on those sub-committees. That is what this amendment centrally concerns.

One of the letters that I received said:

“We anticipate it may be beneficial for a wider range of people to be able to sit on some committees or some sub-committees and NHS England have explicitly asked for this flexibility.”

That reasoning provided made little sense, because it could apply in the same way to the ICB itself. The letter also said:

“We in NHS England think it reasonable to allow private providers to sit on sub-committees of the ICB as barring them risks blocking sensible integration and joint working. For example, if community services in the locality were primarily provided by a private provider it would be unhelpful and damaging to patients to bar an important provider from the committee discussing discharge pathways in that area.”

In fact, the original amendment that was agreed in the Commons was because Virgin Care, as was, got its place on the ICS in its area—which, as we know, was the forerunner of the ICBs—because it was a community provider in that area. So the very thing that caused the anxiety in the first place and which Ministers claim to have addressed—which they have—is in our view still a loophole. We believe that applying the same restrictions to commissioning at that level is unacceptable and flies in the face of flexibility.

One of the reasons for that is that ISPs will set policy and have the discussion about integration. We have accepted that, given the right kind of governance, of course they should have a range of people on them, including people representing the private sector in that area, because those bodies will not be commissioning NHS services. They will be discussing the appropriate commissioning for the ICB to do for that area. We think that is exactly the right place for the flexibility that NHS England seems to be so concerned about to take place.

I regret having to table this amendment but, after many exchanges—this is not an academic argument—we have been told that much of the ICB’s commissioning role will be delegated to, for example, place-based committees. Those place-based committees will be commissioning NHS services. We suggest that the rules that apply to the ICB should apply also to those place-based committees. So at the moment, unless the Minister has something very different from the letters that his officials have sent me about this matter, we will seek the opinion of the House. I think that is a shame. But ICBs are powerful bodies allocating many billions of NHS funding and influencing many millions as more integrated commissioning takes place. We think that the role of allocating funds in the best interests of patients, carers, service users, the public and the staff should be properly governed and governed by the same rules at local level as they are at ICB level.

The amendments in this group seek to express in different ways the fact that we are still unhappy with the way the ICBs are representing themselves. In Committee, the Minister said to us on several occasions, “This is what the NHS wants”. I think one noble Lord—I do not think it was me—said it was not really the point that NHS England wants this. We are talking about what is best for the locality, the patients and the people in it, and how we best invest and use our NHS money. So what we see in this group is that we are not quite there yet. I beg to move.

My Lords, it is a pleasure to follow the introduction from the noble Baroness, Lady Thornton, of her Amendment 9, which I signed. It is the first of a group on the structure and membership of integrated care boards—including the Commons amendments to which she referred. We agree with the noble Baroness and have concerns about the possible loophole of sub-committees. Before I go into that, I will add my thanks and congratulations to my noble friend Lady Walmsley on her excellent proposals for a skills audit and thank Ministers for agreeing to them. I hope that the Minister will reflect on some of the other amendments in this group that seek to ensure core representation from certain key groups within the NHS.

In Committee we had a lengthy debate on the roles and responsibilities of those who may have current or past connections with private sector providers. A key element of that debate revolved around the duties of board members and sub-committee members of the ICB to have its duties at the heart of all they do as they commission using public money. In his response to that debate, the Minister said that

“each ICB must make arrangements on managing the conflicts of interest and potential conflicts of interest, such that they do not and do not appear to affect the integrity of the board’s decision-making processes. Furthermore, each appointee to the ICB is expected to act in the interests of the ICB.”—[Official Report, 13/1/22; col. 1308.]

Amendment 9 seeks to clarify exactly what is meant by “each ICB” by looking at the structures for those that make decisions—which includes sub-committees. The noble Baroness, Lady Thornton, described the difficulties in the example of Virgin Care that demonstrate the loophole she spoke of.

I want to go back a step to the principles behind conflicts of interest. In 1995, the then Conservative Government adopted the seven Nolan principles of public life, which are applied to all who hold public office. Members will know very well that these key principles of personal and corporate behaviour are a golden thread running through the public service that any officeholder delivers, and health bodies are specifically included in the rubric of Nolan. All seven principles are absolutely intrinsic to how an ICB and its members will operate, whether at board or sub-committee level. To pick just two, they must have integrity, including not to

“act or take decisions in order to gain financial or other material benefits”,

and they must

“act and take decisions in an open and transparent manner”.

Amendment 9 expresses exactly the type of arrangement that a public-facing body, even a sub-committee that commissions public services, should have in place. I ask the Minister: would any Government not want conflicts of interest in respect of sub-committees of ICBs to be clear, unambiguous and strong? Is he really arguing that each board should not have that wall of protection in ensuring the integrity of its decision-making processes, as set out in proposed new subsection (4)(a)? Does he think that it is appropriate not to have an appointment process that avoids the appointment of anyone who would be perceived to have a conflict of interest, as in proposed new subsection (4)(b)? Does he also not agree that anyone who has a conflict of interest or potential conflict of interest should not have information that

“might be perceived to favour the interest or the potential interest”,

as set out in proposed new subsection (4)(c)? If the Minister cannot answer those questions, I fear that some noble Lords might be concerned that the Government have abandoned the Nolan principles for some people on sub-committees who will make decisions on commissioning many millions of pounds of public funds. I look forward to his response.

My Lords, with the leave of the House, I hope that noble Lords will find it helpful for me to speak early in this debate, since we believe that government Amendment 31 addresses some of the concerns raised by noble Lords. I shall, of course, listen carefully to the rest of the debate and respond in full at the end.

In speaking to Amendment 31, I thank noble Lords from across the House for the wide-ranging discussions in the Chamber on membership of ICBs. We are grateful for the discussions. Many noble Lords have offered their gratitude to the noble Baroness, Lady Walmsley, for the suggestion on the skills mix. We accept the spirit of these amendments and agree that it is important that ICBs are populated by members with the appropriate range of skills and expertise. I know that noble Lords have heard this many times, but it is also important that we do not over-prescribe, as ICBs should have the flexibility to design their boards to meet their needs, while also ensuring they have the skills and experience necessary to properly discharge their functions.

We have listened, and I hope that the amendments we have brought forward, which require ICBs to consider these skills, knowledge and experience, address those concerns while also ensuring balanced, workable boards. When the amendments refer to the necessary skills, knowledge and experience, that is in relation to the discharge of all the ICBs’ functions, including those related to mental health, children’s health, public health, public and patient involvement, engagement with the voluntary, charity and social enterprise sector, and digital innovation and integration. Therefore, these amendments would help to ensure confidence that ICBs have the necessary skills and expertise to discharge these functions, while allowing them to retain discretion in how they deliver this. This approach has been welcomed by stakeholders, including the Allied Health Professionals Federation, which represents 12 professional bodies representing allied health professionals.

The second, connected amendment would ensure that an ICB reports on how it has discharged this new duty in its publicly available annual report. This will allow public scrutiny of ICBs and create confidence that they are drawing on an appropriate range of skills, expertise and knowledge. This is in addition to governance of ICBs being clearly set out in their constitutions, which will also be published and signed off by NHS England. As I have said, I shall listen carefully to the rest of the debate, but at this stage, for these reasons, I commend these amendments to the House.

My Lords, I rise to speak to this group of amendments, but particularly to move at the appropriate time my Amendment 12. Again, I declare my health interests in the register, especially as a trustee of the Centre for Mental Health and an honorary fellow of the Royal College of Speech and Language Therapists.

As we have heard, we had considerable discussion about membership of ICBs in Committee. I argued in an amendment that membership of ICBs should include a representative of a mental health trust. I also supported amendments stating that allied health professionals—who make up about a third of the health and social care workforce, within which speech and language therapists are a crucial service—should also have membership on the board. However, as we heard, the Government rejected the arguments, principally on the grounds that they made membership too prescriptive and inflexible.

The Minister, with strong support from the noble Baroness, Lady Walmsley, which I welcome, has instead brought forward Amendment 31, which addresses, among other things, the need for an ICB to

“review the skills, knowledge and experience” of board members and to

“take such steps as it considers necessary to address or mitigate that shortcoming.”

This is clearly very important, and I do not oppose Amendment 31. I certainly hope that, as the Minister indicated, allied health professionals such as speech and language therapists will be part of that review and of the board. But the amendment does not ensure that critical areas of healthcare, particularly mental health, are at the table when the ICBs are established.

Government Amendment 31 is retrospective, looking backward at a possible lack of knowledge and expertise after the event, while ICBs are the crucial forum where decisions will be made about millions of pounds of NHS funding, as well as choices about priorities and system changes. Membership of ICBs really matters from day one. It cannot be left to chance or adjusted inconsistently over subsequent years. Further, I remain concerned that if the voice of mental health is not in the room from the inception of ICBs, there is a danger that the very powerful interests of acute trusts will dominate the agenda, which could lead to undermining the not inconsiderable progress towards parity of esteem between mental and physical health, as we have already heard.

My amendment, on mental health representation, tries to overcome the Government’s criticism of overprescription and inflexibility by proposing that at least one member of the ICB should have expertise and knowledge of mental health in each ICB area. The Centre for Mental Health and the Mental Health Foundation support the view that this has the advantage of not being prescriptive and of not specifying that mental health representation should have a clinical focus or involve the nominee of a particular mental health trust. This could help to contribute to a more rounded conception of mental health, including public mental health representation, user-led representation or community organisation being placed on the board as the advocates for mental health services in their local area. This would help to ensure that integrated care systems do not become remote from their local communities and that the issues that really matter to the people are addressed from day one as the ICB plans its services.

Amendment 31, which would require ICBs to have a balance of skills and knowledge, is certainly a huge step in the right direction. I again commend the noble Baroness, Lady Walmsley, for the work she undertook on this amendment, but it should go one step further and guarantee that none of the 42 ICBs can leave mental health out of the room when crucial decisions are made. My amendment would not constrain ICBs by specifying who can or cannot bring mental health on to the board, but it would ensure that that voice is there and in the room. In doing so, it would benefit everyone’s health and well-being, helping to create a more balanced and effective health and care system in every area, and for all of us.

As the Minister said he would listen to the arguments, I hope he will accept this and, if not, clearly explain why. I will not move my amendment now but certainly will at some point.

My Lords, I support Amendments 9, 10, 14 and 32 and will speak to my Amendment 11, which follows on quite nicely from the contribution of the noble Lord, Lord Bradley. It refers to mental health, public health and secondary care services as vital to be represented on ICBs.

As drafted, the Bill leaves the membership of ICBs very much up to local decision-making. The Minister’s Amendment 31 does not change that; it leaves it up to the ICB to decide what it should look like. My concern is that ICBs may be dominated by managers from a range of organisations, perhaps including private sector health bodies. If such ICBs are established—they are being created as we speak—the Minister’s amendment simply enables them to reproduce themselves over time. There will be a degree of transparency over time, but the amendment ignores key sectors and the need for significant clinical inputs to these boards.

Amendment 31 usefully provides an opportunity for statutory guidance to achieve important objectives. In his letter, the Minister made it clear that statutory guidance will clarify that the ICB’s annual report will cover ICB duties in relation to child safeguarding. I very strongly welcome that. Can he include mental health and public health alongside child safeguarding as very particular services that are too often neglected and really need to be represented on ICBs? If he can agree to include those key services in the statutory guidance, as he has included child safeguarding, I would be very content.

Why are these services so important? As I said in Committee, having chaired a mental health trust for nine years, I am acutely conscious of the importance of high-quality and available child mental health services in particular. Across the country at present, the scarcity of such services means that vast numbers of children with quite severe mental health problems simply never get a psychiatric service at all while they are children. These untreated children will have severe problems for the rest of their lives because of that lack of treatment. It is therefore crucial to have a psychiatrist, who will be very conscious of this, on these ICBs—any psychiatrist will be aware that you have to intervene early if children display mental health problems. That is why I feel so strongly about that; I have watched it happen over years.

Another highly significant field being neglected as ICBs are being formed is public health. As many noble Lords know, I am conscious of the huge impact that effective public health responses could have on drug addiction. Police services are increasingly aware of this and are diverting addicted young people to treatment and away from the criminal justice system. However, this approach assumes that treatment services are available in every urban area, but they are not—they have been dropped or cut. Having a public health consultant on every ICB is crucial if these difficult matters are to be properly dealt with and treatment centres are not just closed because they are inconvenient, or whatever the case may be.

The Government hope to control the growth in knife crime through punitive, serious violence reduction orders. We know from all the research in the field that they simply will not work. The Durham, West Midlands and other police services are way ahead of the game, and more and more police services are following them in showing how best to ensure that violent young people caught up in county lines gangs can be diverted into education and work and away from the criminal justice system. However, that assumes that there are treatment facilities available; otherwise it simply cannot happen. Again, please can the Minister include a public health professional consultant on the ICBs as a recommendation in the statutory guidance, as he has done for child safeguarding. I beg to move.

My Lords, I will speak to Amendments 14 and 32 in my name and that of my noble friend Lady Watkins. I want to give an example from my experience; I declare an interest here as independent chair of an oversight panel, reviewing for the Department of Health and Social Care the use of long-term segregation for children and adults with learning disability and/or autism detained under the Mental Health Act. I have seen the impact of very poor and unaccountable commissioning for this group, with very costly mistakes—costly in money and in terms of lives lost and lives destroyed—because of a failure of commissioning appropriate health and social care in the community.

Some commissioners, frankly, do not have the competencies to do their commissioning job safely. I make this point because—while I appreciate the value of Amendment 31 and its requirement that ICBs would have skills, knowledge and experience, keep them under review and take action if they consider that members are failing in some way—as the noble Lord, Lord Bradley, put it, it is rather looking backwards, or marking their own homework, as I might put it, when they do not know what they do not know. This is the problem and why these amendments propose going a little further.

I welcome the Minister’s statement that ICBs will be required or expected to have the appropriate skill mix and experience necessary to deliver all their functions. I understand that the Government will issue regulations regarding fit and proper person tests, which will apply to ICBs when established, including adherence to the Nolan principles, Without the inclusion of the specific skills and expertise required, however, there will be little oversight or accountability of commissioning competence.

I would like the Minister to think again, and to commit to regulations and guidance that set out the criteria and standards that members of ICBs must possess, recognising the responsibilities that they will have and the impact of their decisions on the health and well-being of some of the most vulnerable people in our society. Commissioners take decisions of extraordinary influence; they spend large sums of public money. Civil service appointments are made in accordance with a competency framework. There is no reason why commissioners should be exempt from meeting specific eligibility criteria—and not just in the clinical sphere but in the commissioning sphere, for which there is currently no professional competency laid out.

To give another example, later this month I will be sponsoring the Second Reading of the Down Syndrome Bill, the Private Member’s Bill from the other place that will require relevant authorities, including the NHS, to take account of the specific needs of people with Down syndrome. During the Committee stage of the Down Syndrome Bill, the Minister committed to

“having a named lead on integrated care boards who will be responsible for the implementation of the guidance in practice.”—[Official Report, Commons, 2/2/22; col. 642.]

Thus, representation of learning disabilities and autism interests on ICBs would be within the context of the duty of ICBs to ensure that they have the necessary skills, knowledge and experience. Much will depend on the guidance issued by the Secretary of State under that Bill, which would fulfil similar obligations, I hope, to those of the autism strategy and the Autism Act 2009.

I reassure the Minister that I and other noble Lords recognise the challenge that the Government have in seeking to ensure that the new ICBs comprise people with the correct skills to enable the board to carry out its functions, but these amendments ask for a slightly stronger approach. I ask the Minister to assure the Chamber that guidance and regulations will address the requirement for criteria to be specified.

My Lords, I am delighted to contribute to this rich and important debate, and particularly to speak to Amendments 10 and 13 in my name.

Commenting on the words of the noble Baroness, Lady Meacher, about the importance of public health, I would stretch that much more broadly than the examples that she gave. It really ties to the previous group, where we were talking about how climate change and the nature of the environment are related to health. A public health approach really is talking about ensuring that we have a healthy environment, that we prevent illness and malfunction. If we do not have that approach in the ICBs, that is a real problem.

I agree with the noble Lord, Lord Bradley, that government Amendment 31 is useful but not sufficient to deal with the issues that are raised by this group of amendments. The Green group very much agrees with Amendments 9 and 12 and will support them should we get to that point.

I declare my interest as a vice-president of the LGA and the NALC, which may be relevant here. In speaking to Amendments 10 and 13, I declare exactly where I come from. It was the Royal College of Nursing that persuaded me that these amendments should be here. It is very much the college’s case that I now present.

To begin with a little bit of history, as part of the statutory regulations of the Health and Social Care Act 2012, it was mandated that registered nurses would be part of the governing body of clinical commissioning groups. If we look at Regulation 11 of the National Health Service (Clinical Commissioning Groups) Regulations 2012, we see that a CCG governing body must have at least one registered nurse within its membership. This will be lost if it is not required within the leadership of the integrated care boards.

This ties to a point made by the noble Lord, Lord Bradley, that sometimes there are very powerful forces in medicine. It also relates to the points made by the noble Baronesses, Lady Thornton and Lady Brinton, about the powerful force of private interests in medicine. Other truly important voices often get swept aside. It is worth noting that in the NHS in England, registered nurses are more than 49% of all professionally qualified clinical staff. They have a unique relationship with patients and clients which gives them a different insight to other professionals on how the service works, and in ensuring that measurement of performance reflects the interests of patients and clients.

In representative volume terms alone, the case here is very clear. Registered nurses lead, innovate, and deliver the largest proportion of care, and their leadership brings critical expertise, advice and challenge into boards. Without this clinical leadership, there is a risk that service design and delivery become a matter of financial accounting, without proper attention being given to quality and outcomes for patients and clients, or that there is a focus on the heroic interventions rather than on day-to-day care or on the importance of rehabilitation, on which we heard a lot of debate in Committee and which is an area to which our registered nurses bring particular skills.

It is not my intention to move these amendments, but I hope that the Government will listen to the case being put by what is a hugely important professional body and a hugely important body of professionals, and that we see action taken after this debate to make sure that registered nurses are represented.

My Lords, I rise to speak to the amendments in my name and to support those of the noble Baroness, Lady Hollins, who earlier described the need to standardise the knowledge and experience of commissioners, given the potential significance of their decisions.

The Government rightly suggest that there must be some flexibility so that integrated care board membership best reflects the competences needed to commission for local populations. However, unless regulations stipulate essential criteria for members’ collective skills, knowledge and experience, we risk falling into old habits of medical paternalism. That will undermine efforts towards more integrated, holistic care and mental health needs may be given cursory regard. The voices of nurses—as so ably outlined by the noble Baroness, Lady Bennett of Manor Castle—and other professionals will not be heard.

I would like to share with the House a well-known quote in organisational management: “Every system is perfectly designed to get the result it gets”. We now have the opportunity to safeguard the diversity of experience in each integrated care board by establishing a minimum standard, imposed either by regulation or by statutory guidance, to ensure the system gets the result that best meets commissioners’ needs for local patients and populations across the country.

My Lords, as well as supporting Amendments 9 and 12 and the rest of the group, I would like briefly to add my support for Amendment 31 in my capacity as patron of the British Stammering Association. This amendment is very much welcomed by the Royal College of Speech and Language Therapists, for all the reasons that we set out in Committee. It would do much to improve the expertise available for these damaging difficulties with the basic human need to communicate and the capacity to swallow, so I hope the Government adopt it—I am sure they will, because it is a government amendment. I am very grateful.

My Lords, before the noble Baroness, Lady Walmsley, speaks, I congratulate her and the Minister on Amendment 31. I also want to ask a question. It very much looks as if the integrated care board is marking its own homework, because the duty to keep the experience of members under review is placed on an integrated care board. It is then for the integrated care board itself to make a judgment as to whether it

“lacks the necessary skills, knowledge and experience”.

Quite clearly, any board that has already appointed a group of members is almost certain, in undertaking its review, to come to the conclusion that it was altogether wise in appointing the members with the balance it did. Who is going to monitor this? Who is going to check?

What if you are a local nursing body concerned that nursing issues are not being debated and reflected enough within an integrated care board? What do you do? Who do you go to? As far as I can see, apart from judicial review proceedings there is absolutely no way you can get any change. That is why—and I pay tribute to the noble Baroness, Lady Walmsley, for her work on this—you need amendments like my noble friend Lord Bradley’s to make some specification in relation to those critical areas where it is essential that the board has members with the relevant experience.

My second point for the Minister is this. In introducing her Amendment 9, my noble friend Lady Thornton essentially said that the Bill already lays out constraints on integrated care boards in relation to potential conflicts of interest. All she seeks to do is to extend that to sub-committees of the integrated care board, including place-based committees, which will commission a huge amount of health service provision in future. For the life of me, I cannot see how those sub-committees can be constituted under any different principle from that of the integrated care board itself. Unless the Minister really comes up with a convincing answer on this, I think the House should make its views clear.

My Lords, as this is my first contribution on Report, I begin by declaring my interest as the recently stepped-down chair of NHS Improvement and NHS Test and Trace.

I commend the noble Baroness, Lady Walmsley, and my noble friend the Minister and support Amendment 31. In Committee, we debated in considerable detail the constituent elements of the ICBs. I think it hugely important that integrated care boards have a loud, strong, forceful voice for mental health, public health and prevention in all its forms, but I also think it really important that we enable a board to be a proper board.

The noble Lord, Lord Hunt, questions whether a board would ever assess its own competence and members. Any really good, functioning board in the public and private sector views that as one of its primary obligations. The first line of defence to ensure that a board is performing well is whether it is actually doing an assessment every year of whether it has the appropriate skills. Yes, you should have second and third-line assessments through the CQC and NHS England, but it is the role of a board, and we should let them do that. I believe that Amendment 31 holds these boards to account to do that.

The amendments we have already debated today, enshrining the obligations around public health, health inequalities and mental health, ensure that that is the clear objective of those integrated care boards. I encourage my noble friend the Minister to hold firm and support his amendments and not the others.

My Lords, I thank noble Lords who have expressed their support for Amendment 31 and my role in it; it is very kind.

I go back to how this arose. It is to some extent influenced by what the noble Baroness, Lady Harding, said in Committee. It was quite clear that many noble Lords were very concerned that appropriate levels of skills, knowledge and experience were on an ICB so that it would be able to carry out all the functions that the Bill puts upon it; not perhaps just the list that the noble Lord, Lord Kamall, mentioned, because it was not intended to be an exclusive list. The amendment actually says:

“in order for the board effectively to carry out its functions”.

I think there it means all of its functions.

It was quite clear in Committee that the Government had set their face against prescribing all the different people who should be on a board. But there had to be a way of making sure that the board had all the necessary commissioning skills, and the knowledge and experience of all the areas of health services which that board had to deliver. The board had to have the duty to make sure it could do all of those things—perhaps without prescribing everything, which the Government are determined not to accept.

The solution came to me not just because of what the noble Baroness, Lady Harding, said but because of what my noble friend Lord Thurso said to me in private—not on the Floor of the House. He is a very experienced board chair. He called my attention to the National Audit Office advice on best practice in this respect and a paper on NHS leadership, which recommends something very similar: that the board must have the duty to make sure it has all the skills, knowledge and experience to carry out all its functions, keep that under constant review and report on what it has done and how.

It is inconceivable to me that, if ICBs had this duty, there would not be somebody who knew everything that needed to be known about mental health and public health to effectively commission those services. The duty to report is very important, to keep this in constant review every year and to report in its annual report on how it makes sure that it has got all those skills and that experience. I think the CQC would look very carefully at whether the board had actually carried out the duty put upon it by Amendment 31. If there were any gaps in a service which the board had to carry out, and it did not have the right skills, knowledge and experience to do that, the CQC would be very critical. I commend this amendment to your Lordships.

I will also say in concluding that on these Benches we also support Amendment 9. The noble Lord, Lord Bradley, had a very good point. The amendment in the name of the noble Lord, Lord Kamall, which I am supporting, is retrospective because it requires that, by the end of when an annual report comes around, the board has to show what it has done in respect of providing the right people to make the right decisions. From day one, what this House has done on mental health and how important it is, with the Government’s co-operation, is right.

My Lords, one has to start with the definition of the functions of the integrated care board in the Bill. It says:

“An integrated care board … has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act”— that is, in accordance with all the provisions of the Act. The idea that you must identify some of them in order that the thing should be perfect strikes me as damaging to the nature of the definition. For example, we had today at Question Time a Question about experts in eating disorders. Ought it be said that we must have an expert with clinical experience of dealing with eating disorders? Is it perfect without that? This is the nature of the board that is being set up: it has a generalised responsibility for all that the Act provides in relation to its area.

So far as Amendment 9 is concerned, it seems to me that the requirement in respect of conflicts of interest is part of the construction of the board itself. Therefore, it must be a restriction, if you like, on every committee and sub-committee of the board, because they are all part of the board and therefore subject to that definition.

My Lords, despite what the noble Baroness, Lady Thornton, said at the beginning about this perhaps being the end of the harmonious start to our debates so far, I feel that this has been a helpful and constructive debate. I am grateful to noble Lords for bringing these issues before the House.

Let me start with Amendment 9, as I understand the wide interest in the membership of the committees of the board and potential conflicts of interest. We firmly agree that conflicts of interest must be handled carefully, and have included multiple references to that in the Bill. We also recognise the concern that ICBs should not allow private providers to control commissioning decisions, which is why we added the amendment relating to private providers in the other place, in paragraph 4 of Schedule 2.

Furthermore, in the helpful discussions we have had with noble Lords since then, there has been mutual recognition that we need to balance the importance of protecting the core values and public nature of the NHS while not overly restricting the membership of ICBs. I am pleased that the amendment to Schedule 2 balances on that tightrope and gives appropriate reassurance. We think that it is reasonable to allow private providers and social enterprises to sit on some committees and sub-committees of the ICB, as barring them risks blocking sensible integration and joint working.

I am also aware of the mixed reactions to this amendment from stakeholders. Many noble Lords will have seen the NHS Providers Report stage briefing, which states that

“there could be circumstances where a local private or voluntary sector provider would be well placed to join a joint committee with a focus on integrated service delivery whereby the usual arrangements to identify and manage conflicts of interest would, and should, apply.”

It goes on to say:

“It does not seem reasonable … therefore to further restrict the membership of those committees in a way which is prescriptive in law.”

Further, the NHS Confederation stated in its Report stage briefing that this amendment

“risks critically undermining integration by reinforcing a rigid, out-dated purchaser-provider split and derailing the fundamental purpose of these reforms.”

As it so eloquently put it:

“The current reforms aim to facilitate collaborative working by bringing all partners in local areas around the table to plan the most effective and the most efficient way to deliver care. This, by its nature, involves bringing providers of services, alongside commissioners, into committees and sub-committees of the ICB to plan how care is delivered”.

Potential conflicts of interest are inevitable in commissioning, especially when we are looking to increase integration and bring multiple bodies together. The ICBs will be required to manage conflicts of interest as part of their day-to-day activities. That is set out in the Bill and will be part of their constitution as well.

For all committees, the board of the ICB will have to determine what functions they exercise, their membership, and the level of oversight of their decisions. The board of the ICB cannot delegate a function and claim to be no longer responsible for how it is discharged, and will be held to account for this by NHS England.

Also, ICBs will be clear and transparent about interests, and how they are being managed. We think that transparency will prevent poor decision-making. New Section 14Z30 makes it clear that an ICB must maintain and give public access to a register of interests for members of its committees or sub-committees. There must be arrangements in place to ensure that conflicts are managed not just for ICB members but within committees. The constitution of the ICB must also include the arrangements to be made to discharge the functions under new Section 14Z30 and a statement of principles to be followed by the board in this regard. This will all be supported by guidance from NHS England. We are quite determined to tackle conflicts head on and not shy away from this issue.

My Lords, if NHS England is determined to tackle conflicts of interest head on, why is it building them into the whole structure of integrated care boards? Let us think about an integrated care board discussing future strategy: it would inevitably discuss where the priorities will be. That inevitably means that money will follow the priorities. At what point in those discussions do the major providers, who will be sitting round the table, have to withdraw from because of a conflict of interest? At heart, this ambiguity is built in, so it is not surprising that my noble friend wants to see consistency right through the system, including the sub-committees.

I thank the noble Lord for that Intervention because I was just about to come to it. I should add that new Section 14Z30 very clearly requires ICBs to manage conflicts of interest at sub-committee level.

We think that the approach we have outlined will be more appropriate and possibly more effective than simply barring individuals with a conflict of interest—which, I encourage noble Lords to note, would also include NHS Providers and local authorities— from all committees with a commissioning function. First, this approach is broader than what the noble Baronesses might have intended. Secondly, many committees will have a range of functions, and commissioning may be only a small part of their activity. This approach risks creating a series of duplicated committees with similar interests to enable commissioning decisions to be taken in line with the Amendment. This risks undermining one of the very purposes of this reform: to reduce bureaucracy and increase integration.

On Amendment 10A, we are clear that chief executive pay should be value for money. The pay framework is based on our ability to attract the highest-quality candidates. ICB roles, such as the chief executive, are some of the more complex in the health system. Experienced chief executives of trusts already exceed the suggested £150,000 per annum remuneration. Therefore, we do not believe it would be realistic to expect them to take a pay cut to take up a role with such a portfolio.

I remind noble Lords that putting the salary of an ICB chief executive into the Bill would be inappropriate. Such a lack of flexibility would be extremely unusual for a senior position and risks salaries declining in value over time, precisely as ICBs take on more responsibility as they become more established. This would fundamentally weaken ICBs’ ability to recruit and retain senior management. I also warn that directly tying pay to performance is likely to make it significantly harder to recruit chief executives to more challenging ICBs—precisely the organisations that we would want to recruit the very best leaders.

I hope I can reassure noble Lords that the recruitment process will ensure that only the most qualified people can take up these roles. All ICB chief executive appointees across England need to demonstrate how they meet—

I am sorry to interrupt my noble friend. I do not think we have debated Amendment 10A; it is not in this group.

I wish my noble friend had stood up the moment I mentioned Amendment 10A. I can only apologise. I have received advice to agree with what my noble friend said. I shall very quickly move on and I thank him for his vast experience of this.

Let me move on to a couple of issues raised about mental health. We expect mental health trusts to play a critical role in ICBs and ICPs. The Bill sets out a minimum requirement. It does not specify what sort of care NHS trusts or NHS foundation trusts deliver. As we said earlier in the debate, we hope that ICBs by local agreement go beyond the minimum requirements. We clearly want to see parity of esteem between mental health and physical health.

Noble Lords mentioned public health. The department and NHS Improvement publications have stated an expectation of an official role for directors of public health in ICBs and ICPs. This recognises the vital advisory and leadership roles of directors of public health in the system-wide effort across all domains of public health, which is amplified by the shift to a more preventive, collaborative and integrated systems focus on improving population health. We are working very closely with stakeholders to shape this official role in relation to ICBs.

Can I just check that we talked about Amendments 14 and 32? Yes, we did. This is a more interactive session than many noble Lords would have expected. Perhaps it will do as a sort of novelty. I believe that Amendments 14 and 32 are aligned closely with the skills mix amendment, and I hope that will go some way to satisfying concerns.

On guidance, I am able to reassure your Lordship’s House that NHS England’s regional teams are having ongoing discussions with CCGs and will deal with ICB leaders about the potential membership of the ICB board on establishment. These discussions are focused on ensuring that the board will be effective in discharging the statutory duties of the ICB. Looking beyond this, NHS England is able to issue guidance to ICBs and will engage with them—to understand what issues are emerging during the initial period of operation —and their committees and how they are working with stakeholders. In some areas, NHS England is already developing draft guidance. For example, the proposal is that each ICB will be expected to have a named lead with responsibility for commissioning for learning disability and autism.

On regulations, we think the rules as currently set out in the Bill, and with the addition of the new skills mix amendment, are sufficient and will give ICBs the space they need to develop effective systems in their area. The Bill already includes a regulation-making power that covers any provision related to ICBs’ constitutions, including ICB membership. Therefore, if we deem it necessary in future to be more specific about ICBs’ membership requirements, we retain the ability to do so through regulations. I hope I have been able to provide some assurance—sufficient assurance—to noble Lords and that they will not move their amendments when they are reached.

I do not believe that the Minister has directly addressed Amendments 10 and 13. I am aware of the time, so perhaps he will agree to write to me about them.

That is a very wise suggestion by the noble Baroness, and I will acquiesce to it.

I congratulate the noble Baroness, Lady Bennett, on that suggestion.

I shall be very brief. This was an excellent debate, which proved that the House still has some reservations about ICBs and, if nothing else, it should tell NHS England and the 42 existing ICBs that we want them to do extremely well and to be powerful. Amendment 31 will help ensure their future prosperity and the diversity they need to do their job.

However, I am not content with the Minister’s explanation about my Amendment 9. I regret that NHS Providers and the NHS Confederation never bothered to speak to me about this amendment. They seem to have spoken to the Minister and a few other people and have been on Twitter about it. I think that is rude and it makes me wonder where their panic has come from. I do not think they need to panic about something which just adds consistency to the rules that govern commissioning and the spending of our money. I say with great respect to the noble and learned Lord, Lord Mackay of Clashfern, who I did not see at the beginning of this debate, that if sub-committees are commissioning and spending public money, they should have the same rules as the ICBs. That is the crux of this. I wish to test the opinion of the House.

Ayes 175, Noes 161.

Amendment 9 agreed.

Schedule 2: Integrated care boards: constitution etc

Amendments 10 to 11 not moved.