I beg to move Government amendment 57, in clause 9, page 6, line 3, after ‘for’, insert ‘—

(a) ’.

With this it will be convenient to discuss the following: Government amendments 58 and 59.

The amendments are to new subsections (1A) and (1B), which are to be inserted in section 3 of the NHS Act 2006 by clause 9. I should emphasise that the amendments do not constitute any change in the policy intentions of the Bill. The amendments will achieve what we had intended to achieve with secondary legislation, and the Bill as originally drafted and scrutinised by Parliament would have achieved this, but in response to the concerns raised during the listening exercise by the NHS Future Forum and by professional organisations, we recognise that there would be value in clarifying on the face of the Bill the responsibilities of clinical commissioning groups. This should leave no doubt in the minds of the future commissioners about the scope of their responsibilities and, more importantly ensure that there is no apprehension among the public that there are gaps in the responsibilities of those with whom we intend to entrust the co-ordination, planning and securing of the care we receive from the NHS. In that sense, the changes are significant in ensuring the coherence of the Bill and that we maintain the trust of professionals and public alike in the NHS.

The amendments are intended to clarify the responsibilities of clinical commissioning groups in two important areas, which I would like to consider in turn. First, amendments 57 and 58 make it clear that a  clinical commissioning group has responsibility for commissioning care not only for patients who are registered with a GP practice included in the membership of the commissioning group, but for people usually resident in the area covered by the clinical commissioning group who are not registered with a GP practice.

Will the Minister define precisely what he means by “usually resident in the area”?

I will return to that later, but if the hon. Gentleman thinks that he has caught me on the hop and he wants an instant answer, I will give him one that immediately springs to mind: students usually live in an area, but go away for part of the year to university, college or whatever. I will come on to that in more detail with some other groups later, but I hope that that helps.

A strong message from the NHS Future Forum was the importance of ensuring that the new arrangements for commissioning recognise the need for a system within which services are delivered with the objective of health improvement across the whole population. There were concerns that that would be undermined if it appeared that clinical commissioning groups did not have a clear duty to the whole resident population. The forum reported that

“the responsibility for commissioning services for a defined geography and population is, we believe, particularly important to ensure that people are covered by health and other local services in an integrated way, and for a Population Health perspective to be effective.”

On a similar theme, concerns have also been raised by important stakeholder organisations such as the Royal College of General Practitioners that the Bill as drafted did not make it clear that clinical commissioning groups had responsibility not only for their registered patients but for those who are not registered anywhere with a GP, a category which often includes vulnerable and hard-to-reach groups—I imagine the hon. Member for Pontypridd will want to listen to this—such as homeless people, Travellers or refugees. There was a strong view that the particular health needs of such groups should not be overlooked, however inadvertently. The amendments, as part of our wider drive to remove inequalities and improve outcomes, make sure that that cannot happen.

There are likely to be instances where clinical commissioning groups are specifically not to have responsibility for certain people who would otherwise meet the criteria. That could include, for example, people who are receiving primary medical services as temporary residents, such as someone on holiday in an area covered by a clinical commissioning group who was registered with another GP elsewhere in the country. The regulation-making power in new subsection (1C) would allow such exemptions to be made and give us the flexibility to divide categories of patient among those who are not registered with a GP and for whom the clinical commissioning group does not have responsibility, which might include some categories of overseas visitors, who are usually eligible to be charged for the hospital care that they receive.

Amendment 59 makes it clear that we intend to specify in regulations that a CCG also has responsibility for ensuring that it commissions emergency services to meet the reasonable requirements of anyone in the area that it covers. That might include ambulance and accident  and emergency services and other urgent and emergency care services such as walk-in centres. It was always our intention to make that a responsibility through secondary legislation, and that has not changed. It would be far more inflexible and impractical were we to specify those responsibilities on the face of the Bill. However, we are making it clear in the Bill that the regulations that we intend to make under the powers must capture that responsibility, to remove any doubt that clinical commissioning groups are responsible for ensuring that everyone who needs emergency care has access to it.

That does not, of course, affect any current rules on charging. The proposed amendment would not prevent the NHS from subsequently charging overseas visitors who receive emergency care if they are eligible to be charged. I emphasise also that the amendments do not refer to access to primary medical care, which will be commissioned by the NHS commissioning board. To be clear, the amendments will not change the nature of entitlement or access to primary medical care services.

On Tuesday, Andrew Cozens, an adviser to the Local Government Group, highlighted concerns that the proposed amendments miss wider responsibilities. The example that he gave was of emergency mental health services or services for homeless people. Homeless people in the area covered by a clinical commissioning group are in fact covered by the amendments if they are not registered with a GP practice. On Mr Cozens’ first point, it would not be appropriate to list specific responsibilities in detail or make specific provision for so-called Cinderella services. We cannot feasibly or flexibly cover all potential services; in particular, we cannot make prescriptions in primary legislation that might cut across the autonomy of commissioners and their partners on health and well-being boards to identify local demand and commission accordingly. None the less, I accept the important point that commissioning must be thorough in detecting local need, and the service provided must be comprehensive to meet those needs. I do not doubt that the framework that we are endeavouring to put in place does so.

We have tried to strike a balance in the amendments between clarifying on the face of the Bill the responsibilities of CCGs and retaining a degree of flexibility to ensure through regulations that we have the scope to adapt as necessary policy on urgent and emergency care and entitlement charging, or to meet our EU obligations. For those reasons, I urge Committee members to accept the amendments.

Before I call the next speaker, let me say that I consider it highly unlikely that there will be a stand part debate on the clause, so I am prepared to accept comments that go slightly wider than the amendments, on the strict understanding that those comments relate to clause 9 and not other clauses.

I am grateful to the Minister for some of the points that he has made. I listened with interest to his answer to Andrew Cozens, the witness from the Local Government Association. It is yet another example of the great mistake that the Government are making in rushing the Bill through the parliamentary process. Mr Cozens was given an opportunity to discuss just one of his three concerns, and that was it. I am  pleased that the Government appear to have responded to his point, but I have only heard what the Minister has just said. I now have to go away and read his comments, and we have to speak to Mr Cozens. We would like to come back, but we will not be able to because of the timetable that the Government are pushing on us.

It is unfortunate because we want to try to improve the Bill—if we cannot defeat it—and we need the opportunity to be able to work properly and constructively. Frankly, it is very difficult, but I know the Minister’s response to that. It is a shame that the witness did not have the opportunity to voice his other two concerns. The Government may have risen to the challenge on Mr Cozens’ first concern, although I am not sure yet, and there could have been an opportunity for them to rise to his other two challenges, too.

Amendment 58 would insert a reference to

“persons who usually reside in the consortium’s area and are not provided with primary medical services by a member of any consortium.”

There is a question about what that “usually” means and where the definition is to be found. Although the Minister criticises some Opposition Members for not listening when he is listing people who might fall within a consortium’s area, the fact is the list that he was reading out is the one that we gave him in the previous Committee proceedings.

You must be pleased.

I would like to say that I am pleased, but given the way in which partial quotations are used, from the Prime Minister downwards, I have to wonder whether, in future, the rest of this sentence will be read out, too: in the narrow confines of this particular section of a bad Bill, I am pleased that that part of a bad Bill is now better, and in that context, I am pleased that the Government have listened to us—to that extent. Please, though, do not pray that in aid of any claim that there have been substantial or substantive changes to the Bill. It is but a tiny corner of it.

In that spirit of goodwill and magnanimity, will the Government acknowledge that we were right and they were wrong? [ Interruption. ]

Unfortunately, Hansard will not be able to record the mass cheering that broke out at that point. I think I heard from Government Members, “Yes, you were right. We’re very sorry”—[ Laughter. ]

You’re pushing it.

I definitely remember the Minister saying that the amendments we tabled last time were unnecessary, but it is better for a sinner to come back, and so on. I have nothing more to say on amendment 58.

Amendment 59 deals with the confusion raised by Andrew Cozens and the possible partial movement on the part of the Government, which I am pleased about, as a result of his evidence,. I remain concerned, as does he and the LGA, about Cinderella services and exactly  what will happen to those. I heard the Minister when he said that he felt that he cannot list them all, but the difficulty is that it is that much more important to be clear about such services because they are exactly the sort of services that will be overlooked by GP commissioning consortia.

I am also concerned about the continuing confusion over who will commission ambulance services. Will they be commissioned locally or regionally? We still do not really understand. I do not know whether there have been substantial and substantive changes to the Bill sufficient for that now to be clear. I suspect not. In those circumstances, it is difficult for us to be entirely confident about amendment 59, which refers to

“the provision of services or facilities for emergency care”, because we do not know whether that includes ambulance services. Without an answer to that, it is very unsatisfactory that the Committee is being asked to agree the amendment when have not been given a clear idea about an important part of emergency care, which ambulance services clearly are.

I am also to a certain extent unclear about what the Government will do about boundaries. The Future Forum report states:

“If a commissioning group wishes to be established on the basis of boundaries that would cross local authority boundaries, it will be expected to demonstrate to the NHS Commissioning Board a clear rationale in terms of benefits for patients: for example, if it would reflect local patient flows or enable the group to take on practices where, overall, this would secure a better service for patients. Further, they would need to provide a clear account of how they would expect to achieve better integration between health and social care services.”

On Tuesday, the Secretary of State said that

“through the authorisation process, those 16—and others, if they wish to have a boundary that crosses the unitary or upper-tier authority’s boundaries—will need to explain and justify that by reference to the benefit to patients. Indeed, they will need to show that if they do that, they have got clear mechanisms in place to secure continuing integration between health and social care.”––[Official Report, Health and Social Care (Re-committed) Public Bill Committee, 28 June 2011; c. 97, Q208.]

Where is the amendment that deals with that? Where is the amendment that deals with the important issue of coterminosity? At the very least, it should be made clear that GP commissioning consortia must stick to local authority boundaries, but where are the changes apart from warm words? Where are the changes in the Bill that will make a difference in coterminosity? We are concerned about that clearly important issue. Everyone seems to be singing from the same page when it comes to the importance of integrating health and social care, but that will not have a chance of success if GPs have to look after an area that includes two local authority areas. That would make life far too difficult for everyone. Integration is hard enough without putting more boundaries in the way.

We tabled an amendment to delete clause 9, although it was not selected for debate. There is a reason why we did that and why we have grave reservations about the clause, in addition to the points that I have raised about the drafting of the Bill and what is and is not covered. We had a long debate about the role of the Secretary of State, his powers and what he is and is not in charge of, but there is even more concern about the Secretary of State’s responsibilities as amended when they are  compared with the provisions in clause 9, which seem to contradict the Secretary of State’s powers as debated this morning. I do not understand how the two sit side by side.

The clause will give consortia the power to decide what services will be part of the NHS. If it is to be commissioning consortia that make those decisions and one of them decides that peeling bunions should not be part of the menu of services available to people, what will the Secretary of State do about that? How does he relate to that? How can he overturn a decision made by a commissioning consortium under the provisions of clause 9? There seems to be an essential contradiction.

That is part of what I was trying to say earlier: pushing powers away from the Secretary of State and trying to pass responsibility on to bodies will come back to bite the Government. If those other bodies exercise the autonomy that the Government seem to wish to give them, decisions may be made on rationing, on not giving access to particular things and on saying, “You can have that only if you pay,” or, “We will write out a list of what we are prepared to give, but here is a list of things that you will have to pay for.” How can we hold commissioning consortia to account? We cannot hold the Secretary of State to account for it.

Is there not a similar situation at the moment with PCTs? At the moment, the health care lottery is an established phenomenon. We have seen arbitrary rules set up by bureaucrats, often against the wishes of medical professionals on the ground who may want to help individual patients. Will not the proposed system be a better way of enabling GPs and health care professionals to engage and meet the needs of individual patients?

I hear what the hon. Gentleman says and I doubt that this will come as a surprise to him because, as has already been said, many of the arguments have been taken around the block by the Committee. I think he knows that many, if not all, of us believe that there should have been changes to the primary care trusts—but changes are one thing; abolition is something else. There is an issue about PCTs not being sufficiently responsive or democratic, and we heard what the Liberal Democrats’ policy was before the last election, although it is not their policy now. How to make primary care trusts more democratically accountable was an area of live debate, but we should not simply get rid of them and put in their place GP commissioning consortia that have no democratic accountability. There is no such accountability in the make-up of the consortia, and the contradictions in the Bill’s early clauses push the Secretary of State’s control over them further away. It is a matter of real concern.

The point is that, time and again, PCTs and strategic health authorities make decisions very much against the advice of medical professionals on the ground and democratically elected local representatives. Few mechanisms are available to people in local areas to challenge the decisions of PCTs effectively. I do not follow the hon. Lady’s argument.

From my own experiences and, I am sure, that of others, I am aware of many times when we as elected representatives felt that our PCTs were not  sufficiently responsive to what we thought our local electorate wanted. I find it ironic that I spent many years trying to persuade my PCT to listen to what I was saying, because I was a democratically elected representative of my area, and then, at my first meeting with it after the present Government were elected, it asked me to help save it. However, I do not know of any examples—if the hon. Gentleman has any, I would be grateful to hear them—of GPs saying that they needed to spend money on the care of individual patients and the PCT not allowing that to happen.

I will give a hospital example. PCTs often have a lot of funding for fertility services and access to them. At the moment, the guidelines are arbitrary in different parts of the country and there is a huge postcode lottery. Hospital doctors and fertility experts would like to treat the patient according to the relevant clinical criteria, rather than have to deal with the arbitrary criteria imposed by the PCT. Funnily enough, those fertility experts are experts in their field.

That is a good point, well made. In relation to GPs, however, I think that the problem will be magnified rather than diminished. To fix a problem, do not make it even bigger. That is not the way to do it.

I am rather surprised by the comments of Government Members. My interpretation of the clause and of the Government’s amendments is that it is a postcode lottery clause. Inevitably, whether by accident or design, the proposal will bring about variations in service. For example, in my own area, chronic obstructive pulmonary disease is considered a priority, and probably rightly so, but there is a variation in the provision that does not exist in any other part of the region. Some may think that that is a good thing and that it is by design, or they may think that it is a bad thing, but it certainly leads to a variation in services. The situation is a postcode lottery.

I know that at one stage one interpretation of the Bill was that if an individual lived outside the usual area of a GP commissioning consortia, they would be able to sign up to one in an area in which they did not live. If that remains the case, the problem that the hon. Member for Central Suffolk and North Ipswich raised could be exacerbated 100 times, because if one GP commissioning consortium in Aberdeen was providing fertility treatment, I am quite sure that infertile couples up and down the country would all sign up for that consortium. [ Interruption. ] All right, perhaps not Aberdeen, but the point is made, and it is an important one that I would prefer not to be brushed under the carpet. That is the kind of question that remains outstanding, and I would be interested to hear the Minister’s answer.

Increasing the tensions between providers and the Secretary of State and exacerbating underlying problems, which I acknowledge may partially have been there during the time of PCTs, is not an answer to the issue,  and it is continuing to undermine of the power of the Secretary of State and his responsibility to provide services. If a GP says, “I am no longer going to provide that service under the national health service, thank you very much,” what is a constituent to do? Can they, for example, complain to their Member of Parliament? Can that Member of Parliament raise that with the Secretary of State? Does the Secretary of State have any power over the GP commissioning consortia?

I will give the hon. Lady two answers. She asked earlier about where in the Bill were the powers, when she was discussing coterminosity, and they are in clause 21, new section 14C(2)(c) of the 2006 Act. She just asked another question, and she will be aware that CCGs cannot arbitrarily exclude services; they must base their decisions on clinical need, among other factors. The Secretary of State and the NHS commissioning board are under a duty to promote a comprehensive health service and can use their functions to undertake that, as the mandate and the outcomes framework determine.

A question clearly arises from that. If GPs are going to be making decisions on the basis of clinical need “among other factors,” we need to know what those other factors are.

I want to return to the term “usually” in amendment 58. Although my hon. Friend brought up the example of Aberdeen, which is a devolved matter, is there anything to stop a Scottish resident from registering with an English consortia?

I have no idea. As I say, the changes to the Bill have been brought in at short notice, and we are doing our best to catch up. Frankly, however, when the Secretary of State does not know the details of clauses 1 and 2, what are the chances for the rest of us?

On the same question, is there anything to prevent health tourism, where somebody registers with a particular clinical commissioning group, because it has a particular expertise in a particular field? Would multiple registrations be permitted?

I hope that the Minister is making a note and will be able to answer these questions. These are all valid and live questions that deserve an answer.

Ludicrous.

I am insulted that the Minister thinks they are ludicrous. If I was unfortunate enough to be part of an infertile couple, I would do anything to get access to fertility treatment. If it meant registering in one end of the country, and if my husband then developed a rare form of cancer and I felt that a GP in Cornwall could offer a treatment that I thought might help, I would register there as well, given half a chance. That is the truth. I do not think that is ludicrous; I think that is possible.

What I was saying was ludicrous was the concept, not the highly emotive and, in real life, tragic situation that the hon. Lady described; no one would describe that as too ludicrous. There was some fishing around for circumstances that are highly unlikely ever to happen, just to make a debating point.

We are not.

The hon. Lady may not be, but the hon. Member for Easington knows what I am talking about.

I know that the right hon. Gentleman is an experienced Member of the House, but I feel as though his Whip roots really come out at times in a way that is very unfortunate. The purpose of our being in the Committee and asking questions is to scrutinise the legislation, and to look at it from all angles. We are doing our job, and frankly I think we are doing it rather well. The more irritated the Minister becomes, the more confirmed I am in my view that we are doing it well.

As we have heard, clause 9 transfers the functions of arranging provisions listed under section 3 that were previously vested with the Secretary of State to the clinical commissioning groups. They will not have a duty to provide or secure that provision except to the extent that they consider it necessary to meet reasonable requirements.

That is particularly significant for the care of pregnant women, women who are breastfeeding, young children, other services or facilities for the prevention of illness, the care of persons suffering from illness and the aftercare of persons who have suffered from illness. In terms of those responsibilities, it is now for each of the clinical commissioning groups to determine what is appropriate as part of the health service. They are being given the discretion to determine that within the limits of the measure.

As I mentioned in an intervention, my concern is that that could give rise to a postcode lottery situation. The Bill gives the commissioning board a duty to ensure that services are provided through its functions to the consortia, with specific services left to local determination. A lack of a direct relationship seems to make the Secretary of State’s duty to secure provision of services extremely limited.

I turn to the Government amendments. I welcome that they have acknowledged some of the issues raised, not least by Opposition Members, during the listening exercise. We raised the matter about the Secretary of State delegating his responsibilities to the commissioning board and to the consortia, and we also legitimately raised the issue about conflicts of interest and variations in service. In addition—the following matter comes into the postcode lottery category—we pointed out the risks of private providers cherry-picking elements of the service and issues of accountability and coterminosity.

Opposition Members and stakeholders, not least in representations that Members have received, have asked about the issue of coterminosity between the clinical commissioning groups and the local authority. There will be coterminosity between the clinical commissioners and the health and well-being boards.

It seems that we have a halfway house because, as the Bill stands, the clinical commissioning consortia commission care for patients who are registered with member practices rather than for a geographical population. Government amendments 57, 58 and 59 change the position, leaving consortia responsible for

“persons who are provided with primary medical services by a member of the consortium”.

That is rather different. Perhaps the Minister can explain why they did not just refer to everyone who lives in the clinical commissioning group’s area. This is not sophistry; there is a difference in meaning with that choice of words.

One of my hon. Friends asked the Minister to give some examples of groups that would be covered by amendment 58, under which the consortia have additional responsibility for

“persons who usually reside in the consortium’s area”.

I can clearly identify students, and perhaps homeless people and members of the travelling community. These people are provided with primary medical services by a member of the consortium that makes up the clinical commissioning group. In other words, these people are usually in that geographical location but are not registered with a GP. Many students fall into that category.

I understand why Government Members believe that the straw-man accusation might surface again, but the issue is a real concern. There are parallels with the passage of the Scotland Bill and definitions of Scottish taxpayers. It is important that the Government provide clarity before the Bill progresses.

I am grateful for that intervention. The wording in the clause has implications. I do not want to be pedantic, but one issue is funding. I am aware that the proposals fall far short of changes anticipated by, for example, the Social Liberal Forum. In its analysis of the proposals, it called for

“Local commissioning bodies to have responsibility for clearly defined geographical populations and to be funded on the basis of relative need as now.”

You can imagine, Mr Gale, that some categories of people and some constituencies have many students—for example, in Manchester and the big cities. If that is not factored into their capitation funding allocation, the impact on the local economy will be significant. [Interruption.] The Minister is looking quizzical, and perhaps he will clarify the position.

An issue that is dear to the heart of some Labour Members and, I hope, on the Government Benches—my hon. Friend the Member for Oldham East and Saddleworth raised it—is the implication for addressing health inequalities. Clearly, if a needs-based allocation does not reflect the true population, there would be implications for the clinical commissioning group’s ability to commission relevant services.

There are some inconsistencies. Some issues were raised, by accident or by design, and there are questions to be asked. There should have been an easier way of defining the population. I have identified a problem. However, the consortia will have responsibility for emergency care for a whole geographical population in an area. Again, that is an inconsistency that I find difficult to reconcile. Why define for emergency care, but not for all primary care? That seems bizarre.

The change is substantial—and confusing, because patients may find their care commissioned by different bodies as they move from the accident and emergency department to a ward, or when they are discharged into the community. It is understandable that that might happen if someone is working away from home or is away on holiday and has an accident.

As I mentioned, it would be hard to allocate funding according to population needs, because the population would not necessarily resemble the wider demographic mix of the geographical area covered, and I suspect that that may become worse over time. The approach does not fit with the gist of the Future Forum’s recommendations. During our evidence session, it was specific about what it wanted, and page 10 of its workstream on patient involvement and public accountability states:

“We heard many views about the importance of co-terminosity of conmissioning consortia with the boundaries of local authorities and health and wellbeing boards. The responsibility for commissioning services for a defined geography and population is, we believe, particularly important to ensure that people are covered by health and other local services in an integrated way, and for a Population Health perspective to be effective.”

I am also worried that when collecting an evidence base, the impact of the 30% in-year cuts to the public health observatories—

Debate interrupted (Programme Order, 28 June).

The Chair put forthwith the Question already proposed from the Chair (Standing Order No. 83D), That the amendment be made.

Question agreed to.

Amendment 57 accordingly agreed to.

The Chair then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83D).

Amendments made: 58, in clause 9, page 6, line 4, at end insert ‘, and

(b) persons who usually reside in the consortium’s area and are not provided with primary medical services by a member of any consortium.’.

Amendment 59, in clause 9, page 6, line 10, at end insert—

‘( ) The power conferred by subsection (1B)(b) must be exercised so as to provide that, in relation to the provision of services or facilities for emergency care, a commissioning consortium has responsibility for every person present in its area.’.—(Mr Simon Burns.)

Clause 9, as amended, ordered to stand part of the Bill.

Clauses 10 and 11 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Stephen Crabb.)

Adjourned till Tuesday 5 July at half-past Ten o’clock.