Clause 3 - NHS England mandate

Health and Care Bill – in a Public Bill Committee at 10:00 am on 14th September 2021.

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Photo of Justin Madders Justin Madders Shadow Minister (Health and Social Care) 10:00 am, 14th September 2021

I beg to move amendment 19, in clause 3, page 2, line 12, leave out paragraph (e) and insert—

“(e) after subsection (6) insert—

‘(6A) The Secretary of State may revise the mandate should urgent or other unforeseen circumstances arise.

(6B) If the Secretary of State revises the mandate, the Secretary of State must publish and lay before Parliament the mandate as revised with a written explanation of the urgent or other unforeseen circumstances that justify the revision and an impact assessment of the proposed change.’”

Photo of Sheryll Murray Sheryll Murray Conservative, South East Cornwall

With this it will be convenient to discuss amendment 20, in clause 3, page 2, line 30, at end insert—

“(6) No mandate may be laid before Parliament unless the Secretary of State has supplied a statement on how the mandate will be funded

Photo of Justin Madders Justin Madders Shadow Minister (Health and Social Care)

These amendments to clause 3 deal with the mandate to NHS England. The mandate was part of the changes that were introduced to attempt to distance the role of Government and Ministers from the sound of the bedpans dropping. We can talk about how much the Secretary of State should be involved in that, but we will focus our comments on the mandate today.

What we saw was, in effect, an artificial distinction—one that, like so much else in the last piece of legislation, has largely been subverted or ignored. Despite the intentions, Ministers still try to micromanage and sometimes interfere, for what we would describe as political reasons, and the mandate has rumbled on. During the tortuous passage of the Lansley Bill, the Government had to concede that the Secretary of State remained politically responsible to Parliament for the NHS, which, as we have just discussed, has always been the reality.

It would be brave, however, for someone to suggest that the mandate has had the same level of parliamentary scrutiny. The mandate is presented to Parliament each year, but is that anything other than a ritual? I do not think Hansard records energetic and fierce debates about the mandate, although I am happy to be corrected by the Minister, if he can point me to a particular section.

The idea of the mandate is not entirely without merit. It is good that the NHS knows what is expected of it, and we all agree that it should be free from sudden announcements or other surprises—such as the Secretary of State announcing that the following week all NHS staff would have to wear face coverings before informing them that that was what was required. That is just one example from an extreme situation, but the point is that we all crave certainty. The mandate is an attempt to provide that; and without it, it is unclear how accountability works.

As was clearly articulated in last Thursday’s evidence session, the NHS welcomes the mandate’s ability, in theory at least, to give it stability and enable it, if possible, to plan for the medium and long term. I am sure we could have a debate on whether that is indeed what has happened; it is pretty clear in recent times that, for genuine reasons, that has not been possible. However, most experts would suggest that the NHS would benefit from stability and the ability to plan over at least a three or five-year period without lurches in policy and—crucially and pertinently given today’s business in the Chamber—with a degree of funding certainty to match the requirements.

Despite the NHS long-term plan, which the Minister and I worked on in what seems like another era, the NHS still has to go to the Treasury with a begging bowl every year to try to get the funding it needs. That is as relevant in any area as it is in the workforce. No doubt we will return to that later, but with an NHS so dependent on staff who rightly have many years of training before they can take on their roles, long-term planning is the optimum process, not the annual round of deckchair moving that we often see.

Before the mandate concept entered our terminology, the NHS had to use other means to work out what was expected of it. Under both approaches, NHS England had to set out various flavours of operating plan to keep the NHS going and to try to deliver on the political aspirations and directions of the Secretary of State and the Government of the day. It would be valuable to reflect on that and what those who run the NHS think of the mandate and how effective it is—or to put it another way, how it can be made an effective part of governance and accountability, particularly in this place. The idea of the mandate being for a longer period, being amended only when something serious happens—perhaps on the scale of a financial crash or pandemic, as the most recent examples—has merit.

The Minister may well concede that long-term planning and political stability is of benefit to the NHS, but will he reflect on two matters raised in the amendments? First, a change to a mandate during its natural term could be hugely disruptive, so there should be some requirement, as set out in our amendment, for the Secretary of State to do that only in urgent circumstances, and to show Parliament that the need to change the mandate outweighed the destruction and costs of doing so. The last 18 months demonstrate what urgent circumstances look like, but we would not want to try to list them, because no one can predict the future.

Secondly, any mandate without a proper financial analysis will always be open to question. The setting of the mandate must be tightly linked to the allocation of funding, not entirely divorced from it, as it appears to be. That requires a better relationship between the Secretary of State and the Chancellor, but as we now have a former Chancellor as the Secretary of State, he may harmonise decisions more effectively, or he may know the tricks and minds of those in the Treasury and can navigate them more proficiently. We will see, but that is certainly not something we can put into the Bill.

Widely published evidence provided to us suggests that in the year before the pandemic, the NHS had an effective deficit of £5 billion. That is the gap between the cost of delivering what the Ministers put in the mandate and what they are actually paying for. That is against what we consider an entirely unambitious scenario, where the NHS was not reducing waiting times—they were increasing—and a whole suite of performance indicators were going backwards. The Commonwealth Fund has shown the impact of that inadequate funding, as it slides down the league table. Just about everyone agrees that that was an inevitable consequence of the decade of austerity that we endured.

Time and again, we have heard various parts of the NHS being asked to do things that have not been funded adequately. Providing inadequate funding is an old trick of blame shifting, with blame deflected when delivery does not happen. The Minister is a former member of a local authority, as I am, and he will be familiar with that tactic—possibly under more than one Government. The suspicion of blame shifting is something to which we will return when we look at ICBs. We do not want them to suffer the same fate as local authorities, which have to pick up the pieces when inadequate decisions are made in Whitehall.

All of this points to the need to restore credibility in a system that asks for things but does not pay for them. Assessments to accompany proposals are a well-established measure. Bills have to have various assessments—after all, we have to assume that plans in the mandate have been costed—so it should be the case that most of the work required by the amendment is already being done. Why not secure an assurance that costings will be published, as that will give us the confidence that transparency would provide?

The Minister will know that I have had to regularly chastise him in delegated legislation Committees, because statutory instruments, particularly on covid measures, are virtually never introduced with an impact assessment. I was prepared to allow some latitude at the beginning of the pandemic, as the need for swift action was understandable, but the regular rhythm of the Department appears to show that impact assessment are not something that is important. We believe that they are, and when talking about the Government’s political direction for the NHS, the need for them is evident. I am pleased that an impact assessment has now been provided for the Bill, although I understand that it was published only yesterday. Again, that is characteristic of the feeling that impact assessments are an option, not a necessity.

Amendment 19 would require urgent changes to be accompanied by a written statement explaining the reasons for the urgent provision mandate, which should be accompanied by an impact assessment. I hope the Minister accepts that by asking for that I am trying to help him out again, and trying to get him out of the bad habits into which he has fallen recently. It could be said that what is taking place in the Chamber today is the reverse of what we are proposing—it is a revenue-raising exercise without any clear idea about what will be achieved. We do not even know how much of that will be allocated to the NHS and how much to social care. How can any system properly plan if funding is allocated on that basis? We are told that there will be a further White Paper on integration. [Interruption.] Perhaps the Minister will respond to that point when he replies to the debate, and tell us what is missing in the Bill that requires further legislation on integration.

Finally, I refer the Committee to the evidence from the King’s Fund in particular. Richard Murray told us last Thursday:

“The idea that each year, some time between December and March, you can set a different expectation on the NHS, is operationally unreal for the system. They cannot do it, so I think we want to get back to something where you set out a clearer medium-term objective for the things you want the NHS to achieve, whether that is reduced waiting times or better health, and allow them to try and work towards it. Budgets on that basis would also be incredibly helpful—if you are working in the service not knowing what capital you might have two years down the line and what revenue you might have.”

He also said:

“I would strongly encourage the Government to also try and set multi-year settlements for the NHS, as used to be done, so that people can plan at local level.”

Nick Timmins of the King’s Fund said:

“If memory serves me right, the original idea of the mandate was a rolling three-year mandate. You set the objectives of the NHS and what you want it to achieve, and you can have a little review of it each year, but it is clear. I probably should have said that if the money was also planned on the same basis, that would help no end.”––[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 127, Q174.]

I hope that the Minister accepts that we are trying to be helpful in the amendment, and I await with interest his reply to the points that I have made.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health and Social Care), Shadow SNP Spokesperson (Europe)

I wish to make one simple point, following what the right hon. Member for Ellesmere Port and Neston has said, which is that the annual funding of any health system based on the tax year—I can speak to this, having spent more than three decades on the frontline—means that clinicians will inevitably be contacted in January or February and asked, “What equipment do you need? You have to obtain it by 31 March.” Providers of medical equipment will happily admit that prices go up in the first quarter of the year and then drop, so this hand-to-mouth method actually costs all health services massive amounts of money. Simply being able to smooth that out so that we know what is coming several years ahead would save millions of pounds on procurement and allow that money to be directed to clinical care.

Photo of Karin Smyth Karin Smyth Labour, Bristol South

I echo the comments of my hon. Friend the Member for Ellesmere Port and Neston. The mandate is important. It is awaited by clinicians and managers in the health service as it affects how they are to operate in the forthcoming year. Often guidance arrives the week before Christmas, as I remember from my time in the NHS, so we were starting to plan for the very short term, which really is unhelpful. It is a regular statement intent, and it is a way in which the public can see what is happening or is due to happen to their services.

My hon. Friend the Member for Ellesmere Port and Neston quoted from the King’s Fund’s written evidence, which mentioned the

“multiple plans and strategies in each ICS” and the need for a “more ‘local’ place level”. As we heard in our evidence sessions, this is already a very confused picture, and one that we are going to try to navigate our way through. Although I do think that there should be greater permissiveness, so long as it is accountable at local level, the mandate gives us a degree of accountability at national level, on the Government’s intent, published in their stated aims, and that gives the general public and taxpayer confidence.

On our amendment about 18 weeks, that target was often criticised as not being clinically referenced. It was brought in after the then Conservative Government talked about an 18-month target being highly ambitious for people waiting to be seen clinically—some of us are old enough to remember those dreadful days, to which we have returned. Now, we could argue whether 18 weeks was the right number, but it was something that drove up standards of care, and it meant that the NHS said to the taxpayer, “We accept that you deserve a better standard of care and treatment, and it is completely unacceptable to be on a waiting list for 18 months to two years”—it was often longer. It focused minds, drove service redesign and made clinicians go back over their lists, because if someone has come on to a list two and a half years earlier, many things would have happened and, sadly, in many instances that person would have died.

By supporting our amendment, the Government would show that they are ambitious for the NHS and the people it serves. If the Minister is not prepared to support that 18-week commitment, what is acceptable to the Government? We and all our constituents know that waiting lists were rising out of control before the pandemic, and that the target had not been met for several years. Clearly the pandemic has exacerbated the situation, but let us be clear that targets not being met was a pre-pandemic problem.

We hear utterances from the Government in the newspapers about what they think about the targets—“nonsensical” is what the Secretary of State said at the weekend. The targets were put in place to give people confidence that their taxes were funding a service that they could hold to account in some degree, and it drove some positive behaviour. It will take a massive effort to get waiting lists down, so what discussions has the Minister had with clinicians and managers about the loss of targets? Why would he not support putting that target back in the Bill? The long waiting lists are miserable for everyone concerned. They need to be published. We need to let people know what they can expect from our service. I strongly urge the Minister to accept the amendment, or at least its intent. If he is not prepared to do so, what does he think is an acceptable length of time for people to be on a waiting list?

Photo of Edward Argar Edward Argar Minister of State (Department of Health and Social Care)

The hon. Member for Ellesmere Port and Neston is having a good day; I promoted him to shadow Secretary of State and I think the hon. Member for Central Ayrshire made him a member of the Privy Council, so he is doing well this morning. Although we may resist many of his amendments, I take the point that he did not table them from a partisan perspective but genuinely approached them with sincerity. He mentioned that on a previous occasion the Bill Committee had to be run twice. Fond of him as I am, I think both of us would prefer not to have to do this twice together.

The hon. Gentleman mentioned the impact assessment, which I will touch on briefly. When he goes through it, he will see that it is a chunky document. I reassure him that I have read it in detail, and we published it yesterday in time for line-by-line consideration of the Bill. The reason for the slight delay was that we were keen that it went through the Regulatory Policy Committee properly and received a green rating. The RPC proposed some minor amendments to the original draft, which we thought it appropriate to heed. We updated the impact assessment to make it as comprehensive as possible, which caused a slight delay. However, we were very clear that it had to be published before line-by-line consideration, because I share his view that impact assessments are important documents for Members to have at their disposal.

Turning to the substance of the shadow Minister’s amendments, and then to the clause, the statutory mandate for NHS England drives delivery of the Government’s top priorities for health and care. The intention of clause 3 as drafted is to increase its effectiveness as a long-term strategic tool, framed in a way that can endure rather than having an annual use-by date. That will further support the NHS in ensuring that it can plan effectively to deliver the Government’s longer-term strategic priorities and, in the longer term, meet the health needs of this country, ensuring that public funds are used sustainably to improve services and outcomes over time.

The priorities naturally evolve, based on the Government’s collaborative discussions with the NHS and wider Government, as well as insights on where the NHS should focus its resources from patients, the public and their representative groups, and of course staff. Amendment 19 would, however, potentially prevent such flexibility and democratic adjustment, save in response to urgent or unforeseen circumstances. The shadow Minister rightly alluded to what happened during the pandemic as showing that flexibility; however, there may be other circumstances—for example, a change of Government. I do not anticipate one in the near future, but were that at some point to happen he might wish to have the flexibility to change the mandate.

The amendment would require the Secretary of State to justify to Parliament the urgent or unforeseen circumstances that have led to a revision of the mandate, and to provide an impact assessment. I wholly endorse the need for Ministers to ensure that Parliament is kept informed about the mandate. By convention, the laying of every new mandate is announced in both Houses of Parliament by way of a written ministerial statement. That statement explains the approach that has been taken and makes reference to any relevant funding decisions made through the spending review or the Budget.

Amendment 20 would require the Secretary of State to make a written statement to Parliament when laying a revised mandate to explain how the mandate would be funded. Clause 3 as drafted removes the requirement for the Secretary of State to include and give statutory effect to NHS England’s annual capital and revenue resource limit in the mandate document. I understand the shadow Minister’s perspective, and his concern that there should continue to be appropriate transparency to Parliament for the funding that is made available to the NHS and that, in particular, the delivery of any long-term priorities set in the mandate should be fully funded.

I reassure the Committee that there would be no benefit to the Government, or to any Government, in setting an unaffordable mandate that the NHS is simply not resourced to deliver. Aligning expectations set in the mandate with the funding that the Government have provided, and expect to provide in future, will continue to be a vital part of our consultation with NHS England on the content of each new mandate. NHS England’s capital and revenue resource allocations will continue to be set annually and given statutory effect by annual financial directions, as is the normal approach.

Clause 21 provides for those financial directions to be laid in Parliament in the future, adding to the transparency. We believe that the additional requirement for an impact assessment on mandate revisions is therefore unnecessary, as Parliament will see those directions. In future, the financial directions to NHS England will be mandatory, rather than discretionary, and they will give full statutory effect to the limits for annual accounts purposes. I suspect that we will return to that when we debate clause 21. The new duty for the Secretary of State to lay them in Parliament will ensure that Parliament is given a regular assurance on the funding that is being provided to support the delivery of the mandate objectives in the financial year ahead.

Let me address one final point on the amendments, and then I will turn to clause stand part. The shadow Minister and the hon. Member for Bristol South alluded to long-term strategic approaches and asked whether that risked setting a short-term approach, to the detriment of long-term planning. They asked whether Ministers would potentially risk using the new flexibility to replace mandates so frequently that the NHS was unable to do that long-term planning. There will continue to be a duty to consult NHS England before setting a new mandate, and this process already ensures that the mandate is informed by NHS England’s views on the reasonableness of any new expectations set, including in relation to the time that the NHS will need to respond effectively to any new or changing priorities. It is clearly not in anyone’s interest that any expectations set could not reasonably be met. Should the Government choose to replace a mandate within 12 months of first publishing it, NHS England would not be legally required to update its day-to-day business plan to reflect that, although it would obviously seek to work collaboratively with the Government.

Clause 3 amends the Secretary of State’s powers and duties in respect of setting the mandate. The Secretary of State will continue to be required to publish the mandate and lay it before Parliament. A mandate must continuously be in place so that NHS England’s delivery plans are consistently steered by the Government’s priorities for health and care, but this clause means that there will no longer be a requirement to lay and publish a new mandate each and every financial year, thereby aiding longer-term thought and planning. Under the clause, such a mandate would remain in force until such time as it is replaced. This change means that it would not have to be revised so frequently. As it would no longer be revised before the start of every financial year, it would no longer be the appropriate vehicle through which to set out the NHS’s capital and revenue resource limits or annual ring fences in relation to service integration through the better care fund. Clauses 9 and 21, which we will discuss later, make provision for those amounts to be set instead through annual directions. NHS England’s existing legal duties in respect of the mandate remain unchanged, and the Secretary of State will continue to be required to consult NHS England.

The mandate remains the Government’s primary mechanism for setting the overall strategic direction of the NHS. As we emerge from the pandemic, this clause is crucial to further strengthen the role of the mandate in driving forward the priorities of the Government and the nation for health and care with a longer-term perspective. It streamlines our ability to adjust course over a shorter period of time where necessary.

Let me make a couple of final points before I conclude. The hon. Member for Nottingham North, from a sedentary position, alluded to multiple consultations, reorganisations and suchlike. He knows the respect that I have for him, but I gently say to him that we should look at what previous Governments did when in power. Under the previous Labour Government, there were reorganisations of the NHS in 1999, 2001, 2003 and 2006. This is only the second major piece of NHS legislation under this Government. On social care, to which he may have been alluding, the Labour Government managed to have two Green Papers, a spending review in 2007 in which it was a priority, and a royal commission, and they still did not manage to get it sorted.

The hon. Member for Bristol South touched on waiting lists. We believe that the clinical review of standards process, which is being undertaken by clinicians, is the right approach for looking at that, particularly in the context of the very unique circumstances in which we find ourselves post pandemic, as we seek to recover waiting times to an acceptable level and reduce waiting lists.

I will pause there. I encourage the hon. Member for Ellesmere Port and Neston to withdraw his amendment, and urge colleagues to support clause 3 stand part.

Photo of Justin Madders Justin Madders Shadow Minister (Health and Social Care) 10:30 am, 14th September 2021

I thank the hon. Member for Central Ayrshire for promoting me to the Privy Council. At this rate I will be Prime Minister by lunchtime and supreme leader of the universe by the end of today’s sitting, in which case the Bill will no longer be required.

The hon. Lady made an important point about the effect of annual budgets and, frankly, the opportunism that follows from those providing services. We know that happens in all sorts of sectors, but the amendment sets out very clearly why a longer-term footing is needed. What the hon. Lady referred to was a boom-and-bust approach, but we will leave such terms to history.

My hon. Friend the Member for Bristol South articulated clearly some of the challenges as well. She made the point about accountability, which really does matter. As she said, there is a theme throughout the Bill that accountability is somewhat missing. I am grateful for the Minister’s explanation of the impact assessment—better late than never. The White Paper was issued in January and the Bill had its Second Reading in July, so there has been plenty of time to get everything sorted.

The amendments seek to stop the Government’s propensity to announce policy by headline and then work out the detail later on. The Minister has helpfully said—he will correct me if I am wrong—that the mandate will be fully funded, and we will make sure that he commits to that. We probably do not need to press amendment 20, but we will press amendment 19 to a vote. We think the Government intend to move towards a longer-term plan for the mandate on an annual cycle, but the legislation as it currently stands does not prevent it from becoming stop-start, and there will be circumstances when it will be necessary to change within year. It is important, for reasons of accountability, that that comes with some conditions attached.

The Minister said that we are trying to take away flexibility from the Secretary of State, but we are not. We are trying to encourage accountability alongside flexibility. We accept that there will be circumstances in which the mandate will need to be changed in urgent situations and we would not want to impinge on that, but if the Secretary of State has the power to move things forward in that manner, he should be accountable to Parliament when he does. Again, we are trying to be helpful and assist him. We hope he does not have to do it very often, but if he does issue a mandate in urgent circumstances he will want to know what the impact will be on the NHS. He will want to know that the funding is there and that the NHS has the capacity to deliver the demands placed on it. Those are questions that any member of the Department will ask, so we hope to put in the Bill what ought to happen in practice. It is important enough to press the matter to a Division.

Question put, That the amendment be made.

Division number 1 Health and Care Bill — Clause 3 - NHS England mandate

Aye: 6 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

Clause 3 ordered to stand part of the Bill.