Clause 58 - Transfer schemes between trusts

Part of Health and Care Bill – in a Public Bill Committee at 12:00 pm on 23rd September 2021.

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Photo of Alex Norris Alex Norris Shadow Minister (Health and Social Care) 12:00 pm, 23rd September 2021

It is a pleasure to serve with you in the Chair, Mrs Murray. There is not a tremendous amount to get excited about in these clauses and amendments, but I want to ask a couple of questions of the Minister.

On clause 58, it makes sense to provide for a time where there needs to be a transfer of property, rights or liabilities from one NHS trust or foundation trust to another. Indeed, I suspect that our conversations about boundaries in earlier parts of the Bill are far from finished. That may have a knock-on impact on providers, so we may see it used in the near future. On the powers reserved for NHS England to create transfer schemes, it is not greatly surprising that it is the ultimate arbiter of applications. That is consistent with the rest of the Bill.

I could not tempt the Minister to cover one point in the final grouping on Tuesday evening, and I hope he might expand on it now. Where are the integrated care boards in this? Surely they would have a significant view about changes to the providers, and possibly the splitting up of providers—the Minister mentioned cross-border trusts, and how that might be led with lead providers. It is not inconceivable that the integrated care boards might have significant views, so should there not at least be a sense that their views have been sought? If not, there ought to be support, which would probably be desirable. In the previous grouping, we covered the fact that that was also true for trusts entering special measures and for trusts becoming foundation trusts. Again, there was no sense of what the ICB’s role was. I do not think that the Minister mentioned that in his summing up. I hope that he might do so on this occasion.

I heard what the Minister said about Government amendments 15 and 16, which I have a lot more sympathy for. I raised this issue on Tuesday night. Where the Care Quality Commission and NHS England are involved in a trust failure situation, they should of course want the ICB to be a part of that process. I believe that the point the Minister made was that amendments 15 and 16 will amend the clause sufficiently to ensure that integrated care boards have their say in situations of failure. I hope he will clarify that ICBs in any such situation will get due consultation about what comes next.

I accept the Minister’s point that clause 59 does not represent a material change in direction or policy from where we are today, but instead tidies up who is responsible and deals with new arrangements for NHS England, as set out earlier in the Bill. Again, there is not much of a reference to the ICBs. Hopefully we get clarity that the point of the amendments is to put that back in. If so, obviously we would support that, but I would wonder why that has not happened in other places—both in this group and previous ones too.

The Minister will love how granular this inquiry is. I ask it for no other reason than out of a genuine desire to know the answer; I am not trying to catch anybody out. Schedule 8 replaces section 65KD of the National Health Service Act 2006. Proposed new section 65KD mentions ICBs—I think it was about the only reference to them in the schedule, before the Government tabled amendments 15 and 16—and provides for what happens should an ICB fail to discharge its functions. In that case, under proposed new subsection (5)(b),

“the Secretary of State may exercise the functions of NHS England under section 14Z59(2), (3)(a) and (5)(a)”,

which are introduced by the Bill.

Proposed new section 14Z59 is titled:

“Power to give directions to integrated care boards”.

At that point, the Secretary of State has taken over NHS England’s role and now acts as NHS England himself or herself. Can the Minister explain why that would be necessary? If we are saying that an ICB is part of a failure of circumstances, not discharging its functions properly, would not the first port of call traditionally be the centre—NHS England—to step in and provide support, or is there a judgment that the national leadership has failed too if the local leadership has failed, and therefore the Secretary of State must be the next link in the chain?

I am conscious that that is a granular query, but I think the provision departs from principles earlier in the Bill. It may well be that this is a very specific and niche example, in which case there is less to worry about, but I would like an explanation on that, and on where ICBs are in the grand processes around clause 58. When changes happen, what consultation does there have to be with them, and what support will they have?