With this it will be convenient to discuss the following:
Amendment 102, in schedule 6, page 180, line 12, at end insert—
“relevant Health Overview & Scrutiny Committee” means any Health Overview and Scrutiny Committee in an area to which the proposal for a reconfiguration of NHS services relates.”.
This amendment is consequential on Amendment 103.
Amendment 103, in schedule 6, page 180, line 41, at end insert—
“(3A) Before taking a decision under sub-paragraph (2)(a), the Secretary of State must—
(a) consult all relevant Health Overview & Scrutiny Committees, and
(b) have regard to, and publish, clinical advice from the Integrated Care Board’s Medical Director.”.
This amendment would require the Secretary of State to consult any relevant Health Overview and Scrutiny Committee (as defined by Amendment 102), and to have regard to and publish clinical advice from the ICB Medical Director, before intervening in local service reconfiguration.
Amendment 104, in schedule 6, page 180, line 43, at end insert—
“(aa) publish a statement demonstrating that the decision is in the public interest,”.
This amendment would require the Secretary of State to publish a statement demonstrating that any decision they have made on a reconfiguration proposal is in the public interest.
That schedule 6 be the Sixth schedule to the Bill.
If I may, I will turn to the amendments first and then the substantive clause. I am grateful to hon. Members for tabling the amendments. I said that the previous clause was coming to the main business of the afternoon, but I now suspect that was but an hors d’oeuvre to the discussion we may have on this clause and this set of amendments.
Amendments 102 and 103 would require the Secretary of State to consult all relevant health overview and scrutiny committees before making a decision on a reconfiguration. Amendment 103 would also require the Secretary of State to have regard to, and publish, clinical advice from the ICB’s medical director. It is of course vital that local views are represented in any reconfiguration. However, although I understand the rationale behind these amendments, I do not think they are strictly necessary. The new power will not replace the important role that local scrutiny and engagement plays in service change decisions; we expect the vast majority of reconfiguration decisions to continue to be managed by the local system, and system players will be encouraged to resolve matters locally where possible.
The Secretary of State will continue to be advised by the Independent Reconfiguration Panel, which is being retained. The focus of the IRP is and will continue to be the patient and quality of care in the context of safe, sustainable and accessible services for local people. It has also provided the system with advice based on its experience to date around critical success factors.
If I may go down a slight rabbit hole here, I would like to put on the record my appreciation for the work of the IRP. Certainly during my tenure in this post, I have consulted it and seen its advice on a number of occasions, and I am grateful for the work its staff do, the speed with which they do it and the benefit I have gained from that advice in making decisions or advising the Secretary of State on particular decisions.
In practice, the Secretary of State will always need to seek appropriate advice from clinicians, local leaders or other experts before making any decision, and all decisions made using the powers inserted by clause 38 and schedule 6 must be published. This will ensure transparency and allow for proper scrutiny of the way the power is being used.
Schedule 6 also includes the requirement for NHS commissioning bodies, including integrated care boards, to give the Secretary of State any information or other assistance required to carry out any functions under the schedule. It is envisioned that the Secretary of State will obtain information from NHS commissioning bodies when making reconfiguration decisions. This will include any representations that an HOSC, stakeholder, patient group or any other interested party have made, if applicable.
All decision making on reconfigurations, at both local and ministerial level, will continue to be guided by the four tests laid out in existing guidance that reconfiguration should be assured against: strong public and patient engagement; consistency with current and prospective need for patient choice; a clear clinical evidence base; and support for proposals from clinical commissioners.
As such, we believe that clause 38 and the guidance that the Secretary of State is required to produce under the powers in schedule 6 will provide sufficient safeguards to ensure that the Secretary of State receives appropriate advice before using the powers in this clause. As a result of not accepting amendment 103, we will also resist amendment 102, which is consequential on amendment 103.
Amendment 104 would require the Secretary of State to publish, alongside any decision they have made under this provision, a statement demonstrating that the decision is in the public interest. The Secretary of State is accountable to Parliament for all his or her decisions. Ministers are expected, as a core principle of the constitution, to act in the public interest, and this is reflected in the ministerial code. In addition, the Secretary of State’s scrutiny and direction-making process on this and any other matter must already take into account the public law decision-making principles, all relevant information and their legal duties, including the public sector equality duty, that adhere to such decisions.
The Secretary of State is also under a number of duties set out in the National Health Service Act 2006, including a duty to promote a comprehensive health service, to secure continuous improvement in quality of services, and to have regard to the NHS constitution. As I have already set out, the Secretary of State will continue to be advised by the IRP, and will seek appropriate advice from clinicians, local leaders or other experts.
As for paragraph 4 of schedule 6, the Secretary of State already has a duty to publish any decision they make on a reconfiguration and to notify the NHS commissioning body of the decision. For those reasons, I urge the hon. Member for Nottingham North to withdraw his amendment—I suspect that I will be unsuccessful in that plea, but I make it none the less.
I will now address clause 38 and schedule 6. The clause inserts proposed new section 68A and proposed new schedule 10A into the National Health Service Act 2006. It also introduces schedule 6, which includes a new intervention power to allow the Secretary of State to call in a reconfiguration of NHS services at any stage of the process, without the need for a referral from a local authority. A reconfiguration of NHS services is a change in service provision that has an impact on the manner in which a service is delivered at the point at which the service is received by the user, or the range of health services available to individuals. That could be, for example, a change in where a mental health in-patient unit is based, building a new stroke unit, or restructuring a whole hospital trust.
The new intervention power will enable the Secretary of State to act as a scrutineer and decision maker for reconfigurations, to intervene where, for example, they can see a critical benefit or cost to taking one or other course of action, or to take action where there is significant cause for public concern. We do not expect or intend to use the power with any regularity, and where it is used, it will be done so transparently. As I have emphasised, the Secretary of State must publish any decisions made about reconfigurations.
Schedule 6 sets out the scope of the reconfiguration powers as they pertain to NHS commissioning bodies, NHS services, NHS trusts and foundation trusts. It introduces a new duty for the relevant NHS bodies to notify the Secretary of State of any proposed or likely reconfiguration. The Secretary of State will be able to take any decision that could have been taken by the NHS commissioning body. That includes the ability for the Secretary of State to decide whether a proposal should proceed, the results the NHS commissioning body should achieve, and the procedural steps that should be taken. As I set out earlier, decision making will continue to be guided by the four reconfigurations tests. The new power will not replace the important role that local scrutiny and engagement play in service change decisions.
As the shadow Minister set out, the public expect Ministers to be accountable for the health service, which includes reconfigurations of it. The clause ensures that decisions made in the NHS that affect all our constituents are subject to democratic oversight. Without it, the Secretary of State’s ability to intervene and take decisions will remain limited, often coming at the end of a long local process. As now, he would not be alerted to a potential change in services until the change became an issue and he would remain powerless to intervene without a formal referral by a local authority.
I am conscious that that existing arrangement satisfies few in Parliament, including Opposition Members, on the occasions when they make representations about the process. However, it will be for this debate to see whether Members feel that the proposed new arrangement satisfies them—I will not prejudge that for a minute, looking at the faces of the Opposition Members. I therefore commend clause 38 and schedule 6 to the Committee.
The Opposition are pretty realistic and do not think that the clause will survive the parliamentary process in its current form. It would save a lot of time if the Minister was to indicate now that he had taken note of the many concerns expressed and that things will change. However, as the clause remains on the face of the Bill, we will have to go through the long and important reasons why it will not be able to stand in its existing form. The Minister will continue to defend the indefensible until it no longer needs to be defended.
We have heard evidence as to why the powers in the clause are not needed and, indeed, why the Secretary of State would not want such powers. Again, we are trying to help the Minister and his Department out by pointing out some of the pitfalls. The clause really is the total antithesis of everything this Bill is supposed to be. The Minister has told us many times that he wants to take a permissive approach, but the truth, as exposed by this clause, is that being permissive is okay until it is not, and then we have the power grab, the micromanagement and the sound of bedpans dropping all the way up to the Secretary of State’s desk. That is the logical conclusion of the clause.
“There is widespread support for most aspects of the government’s NHS reforms, but the one area we continue to get real concern over is the proposal to extend ministerial control over changes to local services…the risk with this element of the Bill is that we will end up with more politically motivated decisions which erode the NHS’ clinical independence.”
And in his evidence session, he said:
“We think the system, as it is, is not perfect but works pretty well. For the Secretary of State potentially to be embroiled in making decisions not just about major reconfigurations, but really relatively minor reconfigurations runs the risk not only of delaying necessary changes in the system, but of putting less emphasis on the views of local people and of clinical advice.”—[Official Report, Health and Care Public Bill Committee,
He went on to say that
“the powers of reconfiguration are the Achilles heel. I appeal to you to recognise that that is unnecessary and goes against the spirit of the Bill.”––[Official Report, Health and Care Public Bill Committee,
We certainly agree with that, although we would say that there is more than one Achilles heel in the Bill. I do not know how many heels there can be in one Bill, but there is certainly more than one.
Saffron Cordery of NHS Providers said:
“The other thing to say is that, often, Secretary of State powers may seem like small elements, but taken together, the cumulative impact can be seen to erode that local accountability. We would hope, whatever happens, that if someone has an issue with ear wax removal, they speak to someone at the most appropriate level to get something done. That is what subsidiarity is about: the delegation of powers to the most appropriate level, and it is really important. It is also important for accountability, because you cannot have a Secretary of State saddled with taking a thousand tiny decisions in an organisation and a system as complex as the NHS. That is one of the challenges of this local reconfiguration issue that is arising.”––[Official Report, Health and Care Public Bill Committee,
“The other concern is about the local reconfigurations. We know how politically sensitive these things can be. We would not want the Secretary of State to have disproportionate powers in those arrangements, which will often be more susceptible to political influence.” ––[Official Report, Health and Care Public Bill Committee,
There is a pretty clear consensus of concern. It is little wonder, given that clause 38 and the accompanying schedule, as currently worded, would require that if any NHS commissioning body, NHS trust or foundation trust is aware of circumstances that it thinks are likely to result in the need for the reconfiguration of NHS services, it must notify the Secretary of State. That is quite the bar to set. What does it actually mean in practice? If a GP mentions in passing to someone who works in the ICB that they are thinking of extending their surgery’s opening hours one evening but shortening them on another because their bridge club has changed the day its meets, would that count as an event that must be notified to the Secretary of State? If a physio decides that they want to play soothing music and have an incense candle burning during their sessions because it would put patients more at ease, would that count as a notifiable event?
Those might sound like absurd examples, but the way the schedule is currently worded potentially casts the net that widely. Indeed, paragraph 1(a) refers to a reconfiguration as including
“the manner in which a service is delivered”.
The dictionary definition of “manner” is
“the way in which a thing is done or happens”.
I am struggling to think of something that could be broader in its terminology. I am not sure how helpful it would be for the Minister to reel off a long list of what is and is not meant to be included in the schedule, but he is more than welcome to try. Of course, he could save a lot of time by deleting the clause altogether.
One of the reasons the Minister gave earlier for not supporting our amendment on safe staffing levels is that he does not want to impinge on local accountability, but here we are doing the exact opposite. What is troubling people about paragraph 3 in particular of the schedule is that, in effect, it places a positive duty on an NHS commissioning body, be it a trust or a foundation trust, to notify the Secretary of State if it is
“aware of circumstances that it thinks are likely to result in a need for the reconfiguration of NHS services”.
Where exactly do we draw the line with that? If Doris in accounts overhears a conversation, does that mean that the NHS body is aware? Any light that the Minister can shed on that would be most welcome. It highlights how the clause, as worded, creates unrealistic obligations. How would any of this be enforced? Can we punish a trust for failing to be aware of a need, even if it is just Doris in accounts who has heard a conversation from someone else in passing about a possible change? Can an ICP that holds a needs assessment point the finger? Are there any people who are punished if they spot the need, but do not tell the Secretary of State, or if they are aware of a need, or should have been, and do not say anything? Will they also be caught by the provisions of the schedule?
What are the sanctions against an NHS commissioning body, trust or foundation trust if they fail to notify? What is the punishment? What is the lever that will compel them to notify the Secretary of State? Presumably, if our amendments on openness and transparency had gone through, the Secretary of State would not have needed to worry himself about such questions, because he would have been able to read all the board papers and minutes of all the ICBs as they met. Hopefully, those papers would set out any changes that were being considered instead of indulging in this fairly ludicrous guessing game.
The reality, surely, is that the commissioners and providers are considering how to improve things pretty much all the time. Is that not part of their drive for continuous improvement? Are they going to have to keep sending updated memos to the Secretary of State every time a plan is considered again? Not only is the potential scope of the proposed duty extremely wide, but it is not exactly in keeping with localism and place-based approaches. In fact, it is totally contrary to it. How will the Minister justify taking away powers from a local authority to challenge reconfigurations, and yet the Secretary of State, hundreds of miles away, who has probably never visited the place, gets the ability to challenge absolutely everything?
So far, concern about service changes has not led to the proper recognition of staff in the process. The pledge in the NHS constitution to which the Minister referred is not always followed, particularly in relation to the duty to involve staff. That should be included in the Bill if the Government are serious about that.
We should not be surprised that the clause, in particular, is causing so much concern, because people really value what they regard as their services, and they are wary of change and interference from the centre. That should come as no surprise after a decade of cuts and service restrictions. They are right to be cautious and concerned about what is behind that approach. This is the Government who of course claimed that the refurbishment of a wing is the opening of a brand-new hospital. Is it little wonder, in the face of such spin, that people are concerned about what is behind all this?
We know that the NHS keeps adapting and reconfiguring. Any organisation that is serious about improvement will never just accept the status quo. I am sure that the Minister would accept that it is quite a difficult conversation to have when it is proposed to close an unsafe A&E unit, even when that is supported by strong clinical evidence. We know that in such circumstances, tensions are bound to surface. That tension was indeed recognised 20 years ago, when the first reconfiguration process was put in place. It had, I believe, 13 steps in it—unlucky for some —and it required a comprehensive business case, a proper consultation and an independent assessment both from the gateway review and by the then national clinical advisory team. The old strategic health authorities policed them, and made sure that the course was set. To be fair, as with much of the NHS, the process was not always followed properly, but it largely worked and there were beneficial changes as a result.
As Saffron Cordery of NHS Providers said in her evidence to this Committee:
“The powers that are currently in place are a really effective way of doing it. People getting something past a local health overview and scrutiny committee is a really important hurdle for any service change. It is already well respected, well used and very effective. This is one of those elements that at best is redundant and at worst is going to create a lot of work and a lot of unnecessary tension and friction where we already have challenge.”––[Official Report, Health and Care Public Bill Committee,
“The current system seems to me to work quite well. The Secretary of State still has a say, particularly around controversial decisions, but they do not get sucked into every small reconfiguration and change. You also do not have a point where there is an opportunity for local participants to say, ‘I’m not going to contribute to this conversation any more. I’m going straight to the top,’ and undermine people working together locally. I am of the view that the current system works quite well.”
That evidence in particular points very well to the risks of this proposal. It could undermine the whole thrust of the Bill, which we understood was to be about greater local autonomy and collaborative working. Nigel Edwards also said in his evidence:
“I think we said to the previous Secretary of State, ‘You need to be really careful what you wish for. You may think that your intervention is going to help to move things along and improve innovation. It’s quite likely, from both previous experience and experience in other similar types of systems, to have the opposite effect.’”––[Official Report, Health and Care Public Bill Committee,
Perhaps the Minister does not need to listen to the evidence that has already been presented to the Committee to be convinced of the concerns, because it seems that his Department’s own impact assessment has also identified them. I will quote from that. It says:
“The existing local authority-led referral system would likely be replaced by much broader and more active lobbying groups; to ensure equitable reviews, the department would need new administrative processes to provide adequate support to ministers (including clinical expertise) and new data flows allowing adequate scrutiny of complex reconfiguration cases prior to call-in”.
Perhaps he could redeploy some of the people who are not dealing with the foundation trust applications to do that, but there would be a burden on the Department.
The assessment also says that
“the ability to call-in any reconfiguration could lead to…departmental administrative costs” for systems to monitor and inform Ministers about reconfigurations. It says:
“This would be necessary to ensure the Secretary of State has appropriate information across reconfigurations to be able to call them in. This could be a particularly significant cost if cases monitored for call-in extended much beyond the remit of complex reconfigurations…and if duplication with data flows to other bodies…could not be avoided.”
The Minister will see that I am trying to be helpful to him and his Department at this point. There is one other point from the impact assessment that is really pertinent. It says that
“any benefits of greater autonomy” for NHS organisations
“may be forgone.”
That really is going to the heart of one of the difficulties that we have here.
That is a clear warning for the Minister from his own officials. Hopefully he will listen to them if he does not listen to us. We need to understand and I have not really heard—with the greatest respect to the Minister—what the problem is that they are trying to fix with this particular clause. It is always the case that in the end decisions are made by the Secretary of State. The innovation to allow the Independent Reconfiguration Panel to advise the Secretary of State has worked well. Indeed, the Minister himself recognised its role. Something like 100 proposals have come through the panel in its lifetime, and as far as we know, the Secretary of State has never actually taken the steps to overturn them. Indeed, their importance has been recognised today. It was not a surprise, therefore, that the original proposal to scrap the panel altogether was dropped.
Given that we have, possibly, 100 examples, some of which the Minister will be acquainted with more intimately than us, could he tell us which ones under the old system would have been leading to different outcomes from what we are getting proposed in the Bill? What would have been different? What decisions would have been different? Would it have been the speed of them? Perhaps it will be slower, actually. That is one of the risks. What is it that has happened in the past that would not be repeated under this clause?
To take the Committee back to July 2010, a former Health Secretary, Andrew Lansley, made some changes to the panel. He introduced elements of independent scrutiny. The national clinical advisory team and the gateway were no longer required. Four tests came in instead. Obviously, we politicians do love our four tests. I think that normally Labour goes for five tests. But we have four on this occasion. They were really a fig leaf to pretend that something had been done. The process was overseen by NHS England. The four tests were set out in the operating framework, and they required proposals to demonstrate support from GP commissioners, strengthen public and patient engagement, clarity on the clinical evidence base and a consistency with current and prospective patient choice. Anyway, the process carried on, and pretty much worked okay, unlike what we think we are going to see coming through under the Bill.
We think that it is a mistake to change a process that addresses what we all accept is sometimes a very difficult, emotive, highly charged and sensitive issue when it appears to work. I doubt that the Minister will say so today, but I think he might agree with that. We read in the Health Service Journal that the Secretary of State is
“considering scrapping or watering down plans to give him power of local service changes, in response to concerns from the service.”
The article also suggests that we would table amendments in Committee that would apply additional tests and mitigations to the new powers. We have not done that, because we decided that we would much rather that the Secretary of State did not give himself these wide-ranging powers at all. Rather than distract him from his central aim, we are trying to give him an “out” and the opportunity to do what we think, underneath all the fine talk, is what he really wants to do—quietly ditch these proposals. We will vote against the clause and the accompanying schedule, and we suggest Conservative Members do the same. I think that the Minister will be grateful in the end, if they defy the Whip on this occasion.
If I may just trouble the Minister with another element of the article, it said that several sources involved in the discussions said that the Government had indicated that the Secretary of State may form a stakeholder group to consider changes to the service reconfiguration powers to potentially narrow or remove them, although it also said that that was not confirmed. The article went on to say that any changes agreed to would be likely to be made through amendments in the Lords, and that the Secretary of State had rejected the idea of discussing the changes to other clauses unpopular with stakeholders. I do not know whether the Minister is able to comment on the veracity or otherwise of what was said, but if there is to be a stakeholder group, can he tell us who will be in it? I would also be interested to hear whether he has an opinion on the statement in the article about other clauses that appear unpopular with stakeholders. Can he tell us which ones those are? Of course, if the Minister is not able to get into that detail, he could just vote against the clause.
Incidentally, in the same HSJ article a DHSC spokesman was quoted as saying that these proposals would give the NHS more power, not less, and that they would maintain its clinical and operational independence while ensuring that the Secretary of State had appropriate and transparent oversight. As those remarks are quoted in a written article, we do not know whether the spokesperson who made them did so with a straight face. Indeed, it would be most interesting to see if the Minister is able to repeat those comments when he has taken his mask off without at least cracking a smile about what the spokesperson said. I think that that statement does rank up there with some of the stuff we have seen in his playbook about how new clinics, however small, should be called new hospitals. I am half expecting the Minister to wave a pen and paper about and proclaim the introduction of a brand new booking system that is being rolled out across the NHS, such is some of the spin that the Department is producing these days.
Finally, I would like to address a few of the other powers in schedule 6 that deserve greater explanation. Paragraph 4(3)(b) gives the Secretary of State
“power to decide particular results to be achieved by the NHS commissioning body in taking decisions in relation to the proposal”.
I hope the Minister can help me here, because that sounds pretty much as if the Secretary of State would be issuing an instruction that could override any local processes, decisions or consultation by deciding the particular result that he wants to achieve. Is that actually what he is going to do—basically mandate a particular decision? The power for the Secretary of State to direct any commissioning body to consider a reconfiguration is another extremely broad and undefined power; in the context of the rest of the schedule, it amounts to an absolute power. As we have heard in evidence, this could override patient safety concerns, local consultations and agreements, and clinical opinion. It is an absolute power, and it should be voted down.
Even in the very few cases where there might just be a role for the Secretary of State to break the deadlock, as with the reconfiguration of paediatric heart surgery, there is already enough in place in the system, which most people think works reasonably well. Nick Timmins of the King’s Fund said:
“I think it is really dangerous for both Ministers and the NHS…the Independent Reconfiguration Panel…has worked very well. It has dealt with about 80 controversial cases…the Secretary of State does not have to take its advice, but the Secretary of State almost invariably does take its advice. I think that if we end up with lots and lots of reconfigurations hitting Ministers’ desks, Ministers will come to regret that. If you listen to the views of previous Secretaries of State, they almost always say, ‘It’s ludicrous we ended up having to make a decision about what was going to happen’—in Nether Wallop or wherever—which was the case before the Independent Reconfiguration Panel was around.”––[Official Report, Health and Care Bill Public Bill Committee, Thursday
I hope that the Minister will recognise that we are trying to help him. I do not think that he wants to end up giving his Department and his boss so much power, because it will turn out to be a poisoned chalice, and contradicts the stated aims of the Bill.
There are a couple of questions that we would like the Minister to answer. How will he ensure that configurations are to the benefit of patients and can take place within a reasonable timescale, given that he may well be the subject of individual lobbying? How will he ensure that decisions taken under paragraph 4(2)(b) of schedule 6 are appropriate for, and acceptable to, patients and the public? What measures will he put in place to ensure that things are dealt with expeditiously and do not drag on for many years, undermining clinical leadership in local areas? Will he publish a review each year of the impact and effectiveness of the powers that he is giving himself under the clause? As I stand here now, I am still not clear why he wants to give himself those new powers. Hopefully he will reflect on those matters. We have a lot of respect for him, and we are trying to be as helpful as possible, but we do not support clause 38.
I want to speak generally to the clause and the schedule, rather than in support of any amendments. I thank the Minister for setting out the continued role of the IRP and the four tests that have been put in place. I am sure that all of us on the Committee have at some stage in our local communities faced a healthcare service reorganisation. They are very painful processes, as the hon. Member for Bristol South will recognise. We had a reconfiguration across both trusts in Bristol that began, I think, in around 2004 and has yet to be properly completed. They are incredibly painful processes that can leave local communities feeling disaffected and disempowered, whoever is taking the final decision.
We need to think carefully about the potential unintended consequences of the schedule as it stands. I have not tabled any amendments; I just want to raise potential concerns about the detail. In Bristol and south Gloucestershire, Cossham Hospital was provided to the local community by Handel Cossham, who was the Member of Parliament at the time for the east and south Bristol region. He was the only Member of Parliament who, I think, technically died in the Palace; he collapsed in the House of Commons Library and died of a heart attack. I think in those days they could not even claim that he had somehow survived.
Handel Cossham donated in his will land to the people of Kingswood, on which they built Cossham Hospital, named after him. Even before the NHS came into creation, therefore, Cossham Hospital was there, having been built in 1905. The local people of Kingswood, even though it sits in the Bristol East constituency now, felt very passionately that this was their hospital; it was not the NHS hospital. Yet there was a proposal to close Cossham Hospital, which was then reversed. In consequence, the decision was taken to close Frenchay Hospital in favour of a new hospital in Southmead. Frenchay Hospital was meant to become a community hospital, but a U-turn was taken by the healthcare authorities at the time—the clinical care commissioning groups and North Bristol Trust, which squabbled over who was in control because the land had been handed over from North Bristol to the CCG.
I benefited, when I was elected in 2010, from the “Save Cossham Hospital” campaign, which saw the very good Labour MP lose his seat. I faced battles when there were promises to put a minor injuries unit into Cossham Hospital and then there was another U-turn. Ultimately, no one has been held properly accountable, but the IRP published a report that demonstrated that North Bristol Trust had neglected its duty to communicate effectively with the public.
It is that element of communication with the public that I want to talk about in relation to schedule 6, because I have concerns. I agree with the Minister about removing the control of the health overview and scrutiny committees, because they became toxic platforms for councillors, who suddenly had to take decisions as local authority members. They did not know anything about them; all they knew was that their seats were at risk, so the committees were becoming highly politicised forums. People were turning up to the councils and demanding that councillors referred things to the IRP.
Perhaps the Minister can comment a bit more about the nature of who is doing the referral and who is contacting the Secretary of State, because the Secretary of State will not necessarily be aware of all the reconfiguration decisions. Who is the active agent who is making the referral to the Secretary of State? Will it be a councillor, a member of the public or a Member of Parliament? My worry is that when we get to election time, the Secretary of State becomes a lightning conductor, and this will electrify decisions. For new colleagues in marginal seats in the red wall, this could be one of the decisions that creates the dynamic by which the general election is fought on various reconfigurations. The Opposition will claim that it is the Secretary of State’s responsibility to deal with the matter and that he has let down local communities. That is the dynamic and toxic discussions that we have to avoid, if the provision comes into play.
I agree that the Secretary of State needs to have more information to hand and the ability to make decisions, but I am concerned about the definition in schedule 6, which states that
“‘reconfiguration of NHS services’ means a change in the arrangements made by an NHS commissioning body…that…has an impact on—
(a) the manner in which a service is delivered to individuals (at the point when the service is received by users), or
(b) the range of health services available to individuals.”
That is so broad that it could include the tiniest change. Mr Jones, a constituent of mine, might say, “Actually, this has impacted on my local provision of healthcare services for me. I want you to start a petition to the Secretary of State to change this.” I wonder whether there could be some conditionality placed within the definition that might touch on an overwhelming community interest, or something that might touch on the detriment of patient outcomes.
I believe that when we make reconfigurations, they are not necessarily done for financial reasons. They are done to deliver better patient outcomes, so we have to find a way for all political parties to demonstrate that when we put trust in professionals to take decisions, they are doing so because they recognise that there are ways in which reconfigurations can lead to better patient outcomes. We have to be able to move people in that journey. It is not just about the money when it comes to reconfigurations, and I understand that. As political leaders, it is worth supporting clinical decisions when they are the right ones for the benefit of patient outcomes, even if they are difficult decisions for us to take. Some reflection of that in the definition of “reconfiguration of NHS services” would be welcome.
Ultimately, it will come down to guidance, which is why the section on guidance is important. The Minister has mentioned guidance being published. Currently, paragraph 8 of schedule 6 only says:
“The Secretary of State must publish guidance for NHS commissioning bodies, NHS trusts and NHS foundation trusts.”
I think we would all really welcome that guidance being extended to the local authority’s health overview and scrutiny committee, so that it can understand what role it is playing within this fiery dynamic.
What we really need to do with the clause is ensure that members of the general public understand what the duties and responsibilities of the Secretary of State are to any reconfiguration, and that they are set out very clearly to start with. Once we start going down the journey of a petition being collected, it gathers steam and therefore becomes a campaign. Suddenly, rather than having the Department of Health and Social Care, we have a new Department called the Department of Health and Reconfiguration Services, which is what we need to avoid. For the sake of the public and the community, we have to be able to demonstrate that reconfigurations will happen—that is the nature of the NHS. Decisions need to be taken when the facts change and the clinical outcomes change, and I recognise that fact. However, we have seen flip-flopping in Bristol eroding public trust. We need to ensure that, from the outset, people understand why the Secretary of State has these powers and the conditions under which he can take decisions, working with the IRP. We would welcome guidance, potentially for Members of Parliament and local authority members, so they are able to have advance conversations when constituents come to them saying, “I want you now to refer this to the Secretary of State” or “I’ve got a petition of 10 people who want to refer this to the Secretary of State.” They will then know exactly the context in which they can consult the Departments.
Those are the only points I want to make. I am not here to support any of the amendments, although I support the clause. I wanted to reflect on things that might be added in order to break down the granularity of detail, provide wider community context and make sure the public understand where the Secretary of State sits in this potential conversation around reconfiguration.
It is a pleasure to follow the right hon. Member for Kingswood. I feel the need for us to write a book or a pamphlet about the planned reconfiguration of health services in Bristol from my time on the board. I agree with a lot of what he said about the Kingswood-Frenchay area, but I hold the reconfiguration up as a good example of wider consultation, clinical leadership and patient and public involvement.
Some of the messiness we got into reflected healthy discussion of the issues. As he said, we are still going through the process, but at the end of those long days we managed to build two very good, specialised hospitals, particularly around A&E services, and therefore close an A&E service. Although not a clinician, I had lots of work in the Frenchay area at the time and it was a terrible place to work and deliver clinical services, having been built as temporary wartime provision, although it was much loved by local people. That is something we might reflect on at another time. The process continues. We have just closed the consultation on stroke services, and other good services, including primary community care services, have come about as a result of the reconfiguration. Reducing a hospital base from three to two is a major exercise, but it did happen.
The points made by the right hon. Gentleman were well made, as were those made by my hon. Friend the Member for Ellesmere Port and Neston. We could play good cop, bad cop, because I am disappointed that the Minister is not taking the very helpful hands that I have offered to find more ways around this, rather than saying that we just want to see the whole lot come out. It will come out eventually—I think we all know that—but along the way let us put some helpful things in place.
My amendments deal with health overview and scrutiny committees and clinical advice. I will not press them to a vote, but I would like the Minister to address them. I think they might appear in similar form in other places, at other times, so what we say is important.
The Government need to account for where and how they are going to get their clinical advice. Reconfigurations, both large and small, are important to local people, as hon. Members have said. The Cossham example is a good one. Some of those buildings do not belong to the NHS. They belong to local communities and pre-date the NHS. People love buildings and their associations. As we embrace technology, we can see that people like buildings because they are something they can grab hold of and understand.
Clinicians—and clinical advice about change—are crucial in allowing and facilitating change. As with politicians, if there are three clinicians in the room then often there will not be one single answer. The issues about what we should be moving towards are often not black and white. The whole vexed issue around the tests and where clinical advice comes from is problematic for the Government and the Secretary of State.
As my hon. Friends have said, the national clinical advisory team did independent reviews, and then that disappeared. We have looked at clinical senates. The Lansley test, which has been alluded to, wanted clarity about a clinical evidence base. In order to provide such clarity, a lot of clinicians need to come together, across specialities and across primary and secondary care, to agree and to then go and talk to the public, to make people understand why and when they are putting forward their propositions.
The timing is interesting, because the test assumed the support of GP commissioners. In this new world, there is no clinical leadership of these new bodies; they are managerially led. Some of the managers might be clinicians, but when the tests were established—this was also true of primary care trusts—the previous bodies in their previous incarnations were largely clinically led. We may dispute whether that was in actuality, whether those people were acting as clinicians, what sort of clinicians they were, whether they were clinicians in the field of the service reconfiguration we were talking about and so on, but that is an important point in terms of trust with the general public.
The new bodies are not clinically led. In my amendment, I suggest the ICB medical director, but that will be a pretty tall order for the ICB medical director even in my amendments. They are also supposed genuinely to promote patient choice. We talked earlier about the removal of autonomy, and what we are seeking to do in many of our amendments to the Bill is to put back the voice of the patient somewhere in this permissive integration world.
The other test was generally to enjoy public, patient and local authority support. While poor old Lord Lansley is not getting much praise in these meetings, some sort of provision for tests with the public, local authorities and clinicians, recognising the complexity that has been outlined particularly well by the right hon. Member for Kingswood, still living through some of this, is well made.
I do not think the Secretary of State for Health and Social Care wants all this on his desk. In my time in this place I have watched with great interest, as I am sure we all have, as hon. Members across Cornwall, Devon, Dorset, Gloucestershire and all across the south-west have all risen at various times to bring up the issue of their community hospital, their A&E and various other services in their part of the country. Those issues are keenly felt and will all need consideration. Somebody—largely clinicians, and then other managerial people in those bodies—will have to sift out those processes.
What is alarming people, as we heard in evidence from our excellent witnesses—my hon. Friend the Member for Ellesmere Port and Neston outlined the key arguments—is that there is a gap. Who is filling it? How is it being filled? That is not just about process; it is about serious clinical engagement. That is why the Minister would be wise to pick up some of the helpful amendments that have been tabled, to alter this; otherwise it disappears completely. I think it was Nigel Edwards from the Nuffield Trust who said it is working pretty well at the moment.
We will all have our points in time where we disagree with things, and we will all want to bring in something else. That is partly our role as elected representatives, and I know the NHS does not like politics and politicians getting involved in these things sometimes, but it is the job of local representatives, whether local councillors or local Members of Parliament, to articulate on behalf of their constituents, to understand the debates and issues, to mediate them and certainly to challenge clinicians and managers of all types on the veracity of the proposals they put through.
The other thing I have said publicly is that sometimes the evidence put forward is not as robust as it should be. That external local scrutiny is well served by those of us who take a strong interest and ensure that the veracity of that information is solid. I have been able to go back to constituents—it is a brave politician who goes back to a constituent to say, “No, actually, I think we need to close that A&E,” but frankly, as we have seen from various reconfigurations across the country, at times that saves lives and is the right thing to do. Giving people locally the support to articulate that is also important.
I fear we may not have consensus in Committee at this point, but none the less I will endeavour to answer some of the points raised. I am always grateful to the shadow Minister for his kind offers of help and assistance, and he will know that I always reflect carefully on the evidence we have heard and on the opinions of hon. Members on both sides of the House. I welcome his welcoming of the publication of the impact assessment in time for him to be able to quote it back at me. Finally, I thank him for his heartfelt and kindly offer of alternative approaches, given his concern for my workload were these proposals to be approved. I am touched on a number of levels by that, and equally by his suggestion that I and others have been engaged in the dark arts of spin—heaven forbid.
In the context of clause 38 and these amendments, right hon. and hon. Members, including my right hon. Friend the Member for Kingswood, have raised a number of important points that bear further reflection. As we have said throughout this process, the challenge with this Bill is striking the right balance between being permissive and ensuring accountability at a national level, and we believe this clause plays a key part in doing so. I disagree with the shadow Minister’s view—although I respect it—that the clause does not strike the right balance, and I do not believe that the powers set out in it are disproportionate, as he has suggested. He has highlighted the role of the IRP. I mentioned my gratitude for its work in my opening remarks, and I was very clear that that work will continue. The IRP will continue to give the valuable advice it has given thus far.
I do not believe that the notification requirements will prove unduly onerous: a notification can be a very simple process. To the shadow Minister’s point about timeliness, process and definitions, we are working very closely with the NHS and other partners to produce guidance that will set out clear expectations about how and when the powers will be used, and how they will be exercised. In his remarks, he touched on a concern that Ministers might be beset by lobbying from the public and others. I would argue that such lobbying would clearly point to greater public engagement with such matters and increased transparency, which are things that we might welcome. For fear of upsetting my hon. Friend the Whip, the Member for St Austell and Newquay, I will pass over the invitation that the shadow Minister and others have extended to my colleagues on the Government Benches to break the Whip. I saw the expression on my hon. Friend’s face when that was suggested, so I strongly discourage any of my right hon. or hon. Friends from contemplating that course of action. Even though a reshuffle has only just happened, there is always another one at some point.
The shadow Minister mentioned the Health Service Journal, which I enjoy reading. All I would say is that we continue to engage with a wide range of stakeholders, as we have done throughout the process. Indeed, I think that in her evidence, Dame Gill Morgan highlighted the collaborative nature of the genesis of this Bill. I intend to continue with an open and transparent approach, discussing with colleagues and engaging with them and others, because we know that we can always learn by listening.
I am finding the Minister’s response very entertaining, but he really does need to tell us exactly what is wrong with the current system that this Bill is going to fix.
I will come to the shadow Minister’s point, but I just want to get through the points he made earlier in his preamble. He mentioned the quote in the Health Service Journal article from a spokesperson for the Department of Health and Social Care, and I think that quote accurately reflects the nature of this Bill. I am grateful to those officials from the Department who ensured that the Health Service Journal got its quote.
I now turn to the substance of the shadow Minister’s argument and some of the gritter points that he, the hon. Member for Bristol South and others have alluded to. Fundamentally, he asked what challenge this Bill seeks to resolve. He asked a few other questions as well, which I will try to answer.
We believe that the Secretary of State should be able to intervene in reconfigurations for which they are ultimately accountable, and that this proposal will increase accountability to Parliament and the community by enabling intervention at an earlier stage. Too often, controversial proposals are referred at the very end of the process after a huge amount of work, effort and expenditure, rather than at an earlier stage when there is already a divergence of opinion in the local community. The Bill gives the Secretary of State an opportunity to take a view—based on advice and on the IRP’s four tests, which will continue to be the basis of that—and to get earlier intervention, where appropriate. That is one of the key reasons.
I will carry on, and the shadow Minister will nod if I am missing anything. He touched on local authority engagement, who can refer, whether there is a diminution in power—I think the hon. Member for Bristol South might have mentioned that—and what qualifies the Secretary of State to make those decisions. He also referred to local knowledge.
As the shadow Minister knows, the Secretary of State can already act to determine the outcome of a reconfiguration process, but only in limited and defined circumstances following a referral from a local authority health overview and scrutiny committee, on the grounds either that the consultation was inadequate or that the change in question is not in the interests of the health service in the area.
The change in the clause will extend the scope for intervention by allowing that call-in at any stage. That would have the effect of allowing people or organisations other than local authorities—for example, Members of Parliament—to ask the Secretary of State to do so. That will enable a more flexible and possibly earlier intervention, which has the potential to shorten the timescales for resolving such issues, when appropriate, rather than seeing them drawn out and extended.
We could spend a lot of time on this, but I think the Minister is saying that this could happen if there is a dispute within the public at any stage—perhaps at the outline business case, perhaps at the initial raising at the ICB or perhaps at the floating of the idea. That is clearly nonsense, if I may say so. Will the guidance define what “any stage” means?
We anticipate the guidance setting out what is proportionate, the criteria and the appropriate point at which an intervention can be considered. I come back to the point that too often, under the current arrangement, proposals come forward right at the end of the process, after huge amounts of expenditure, effort and time, only to be overturned—potentially at the very last moment—on the basis of the referral. Having a measured and proportionate intervention power at an earlier stage is the right approach to save a lot of angst and possibly money, although we do not anticipate that the power will need to be used on many occasions, because the vast majority of reconfigurations are broadly consensual, or reach a local consensus.
The shadow Minister alluded to local authority referrals, and the hon. Member for Bristol South has highlighted the importance of local authorities and local accountability in a number of previous speeches and interventions. The new call-in power will not replace the important role that local scrutiny and engagement play in service change decisions. Decision making on all reconfigurations, as I said, will continue to be bound by the four tests against which reconfiguration should be assured: strong public and patient engagement; consistency with current and prospective need for patient choice; a clear clinical evidence base; and support for proposals from clinical commissioners.
The IRP will continue to provide the independent clinical advice to inform the Secretary of State’s decision making. His scrutiny and direction-making process must take into account the public law decision-making principles, all relevant information and all legal duties, including the public sector equality duty.
In that context, the Secretary of State will also continue to be bound by his duty on quality of service. That includes promoting the comprehensive health service and securing continuous improvement in the quality of services provided. The new call-in power for reconfiguration will allow the Secretary of State to support effective change and to be more responsive to the concerns of the public—and of Members of Parliament as their representatives—at an earlier stage.
Reflecting on the Minister’s comments about why the provision is needed, my understanding is that the power to give the Secretary of State the opportunity to intervene at an earlier stage means that, in effect, local health systems will not spend an awful lot of time and effort coming to decisions that will ultimately be overturned. I wonder whether the Minister can give us any more detail or any thoughts about why, in a system that was generally thought to be working well, a decision could go all the way through that process and, at the end of it, be deemed to be wrong.
One particular example comes to mind, but given that it is a live one, I will not use it. However, if I semi-anonymise it, there are decisions that are made locally and followed through, and only at that last moment is the process challenged—for example, whether a consultation was done properly—so it triggers a potential referral to the IRP, which could see that process overturned. An earlier power to intervene and an earlier opportunity to engage could in many cases avoid that problem and lead to a smoother process.
Let me make a final point. I would expect most reconfiguration decisions to be managed by the local system, and system players will be encouraged to resolve matters locally where possible and not to require any referral to the Secretary of State. Where cases are highly contentious and require ministerial input, our proposals will allow the Secretary of State to intervene. He is accountable in Parliament for reconfigurations. The shadow Minister made the broader point that if we ask who is responsible for the NHS, people will say the Secretary of State, or potentially the Prime Minister. That is already there in people’s minds. It is right that we have commensurate powers in the Bill to enable the Secretary of State to properly discharge that function and accountability.
I remain touched by the hon. Gentleman’s kind concern about the volume of work I may end up having to do as a result of the measure. I do not quite share his concerns, but I am none the less touched by the thought.