Clause 93 - Establishment of the HSSIB

Health and Care Bill – in a Public Bill Committee at 3:03 pm on 19th October 2021.

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Question again proposed, That the clause stand part of the Bill.

Photo of Julie Elliott Julie Elliott Labour, Sunderland Central

I remind hon. Members that with this we are considering amendments 127 to 135 and schedule 13. I call the Minister to carry on from where he left off.

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

I am grateful to you, Ms Elliott, and I challenge colleagues to remember what I was saying just before the Division.

On amendment 130, having the non-executive members remove one of their own members—essentially, their colleague—could very likely create a conflict between board members, because I would not expect that to be an easy decision for any of them. Of course, we want an effective, cohesive and united board with the Secretary of State stepping in only when a real issue needs to be addressed.

We would not expect those powers to be used very often, and ideally they would never need to be used. However, it is important to have those safeguards, which would allow action to be taken quickly should there be concerns about a non-executive member of the board.

Finally, I will speak about amendments 129 and 132 to 135, which look to mandate the creation and role of a chief finance officer for HSSIB. If I have understood the wording of amendment 129 correctly, the intention is to ensure that the chief finance officer of HSSIB is one of the executive members. As HSSIB is an independent NDPB, the recruitment of the executive members will be led by the non-executive members. It will be for them to take decisions about the composition of the executive members of the board, taking into account the balance of skills and experience required to lead the organisation in its vital work.

If the non-executive members were of the view that a chief financial officer’s skills would help the board’s work and complement the knowledge, skills and experience held by the existing non-executive and executive members, this would be a board role. There is nothing in the Bill, as it is currently drafted, to prevent the non-executive members from doing that.

It will be important for HSSIB, as an independent body, to be fully on top of finance and accounting decisions, and that is already reflected in the Bill. The constitution, which is set out in part 1 of schedule 13, includes a number of requirements in relation to funding and finance to ensure that that is managed correctly by HSSIB. For example, paragraph 12(1) of schedule 13 expressly states that HSSIB must exercise its functions economically, as well as effectively and efficiently. Paragraph 16 relates to the use of income from charges, and paragraphs 18 and 19 relate to the accounts of HSSIB. It is for HSSIB to decide how best to ensure it fulfils these duties, but I hope it is reassuring that the constitution underlines the importance of running HSSIB economically and the requirements for annual accounts, as would be expected of a public body.

Amendments 132 to 135 look to remove from the Secretary of State the responsibility to set the remuneration for non-executive members of HSSIB, and to give that power to the chief finance officer instead. The amendments present some challenges, which I will outline here.

In respect of public appointments, the governance code for public appointments states that

“Ministers must be consulted before a competition opens to agree the job description for the role, the length of tenure and remuneration.”

A number of non-departmental public bodies follow this code, such as the Care Quality Commission, the Human Tissue Authority and the Human Fertilisation and Embryology Authority, to name a few. There is no reason why the arrangements for HSSIB should differ from those of other non-departmental public bodies.

We wish to ensure the independence of HSSIB’s board, and I know that hon. Members feel strongly about that, too. Giving a chief finance officer control over the remuneration of non-executive members means that the Secretary of State and, via the Secretary of State, Parliament would not have full oversight of how public money is spent. Although I am sure that the non-executive board members would act with the utmost integrity, we must ensure that the legislation supports them to do so as far as possible, and that we do not deviate from standard practice in public appointments. For those reasons, I ask hon. Members not to press their amendments, and I commend this clause and schedule to the Committee.

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

It is a pleasure to see you in the Chair this afternoon, Ms Elliot. I am grateful to the Minister for setting out the Department’s position on the clause and the accompanying schedule. The proposed amendments relate to the establishment of HSSIB. As he has said, it builds on the work carried out by the Healthcare Safety Investigation Branch, which was established without statutory basis in 2016 and became operational in April 2017.

The Public Administration and Constitutional Affairs Committee identified in April 2016—more than five and a half years ago—that this legislation was necessary, and I am pleased to see that it is finally being brought forward. The Health Service Safety Investigations Bill, which was introduced in the House of Lords in 2019, did not proceed because of the calling of a general election, on which the Opposition do not wish to linger.

As other members of the Committee may have done, I have raised with the Healthcare Safety Investigation Branch both system-wide issues and individual matters on behalf of constituents. My experience has suggested that there are wider issues that need investigating, so we welcome this opportunity to discuss and set out in legislation the powers and remit of the body.

Unfortunately, some details are lacking from part 4 of the Bill, which we think represents a missed opportunity to set them out a bit more precisely. We should not miss the opportunity to ensure that this body can truly improve healthcare, as we will demonstrate with our amendments, notwithstanding what the Minster has said. We are trying to do our utmost to ensure that HSSIB has the independence, the resources and the influence it requires to operate at its maximum potential. Lessons must be learned from the experience of the Healthcare Safety Investigation Branch, which has undoubtedly had some impact. However, in many ways, its work has not had the impact it might have had, because its reach has been limited for a variety of reasons that are entirely out of its control.

Keith Conradi, the chief investigator of the Healthcare Safety Investigation Branch, touched on that during the second sitting of this Committee, when he commented on how the branch had been operating in shadow form, without any real powers. We have discussed the powers of HSSIB, especially in terms of access to information and compelling people to co-operate with investigations. However, it is what happens after the final report, and ensuring that those recommendations are acted on, that will have the largest impact on patient safety and driving through improvements.

A recent example of the work of the Healthcare Safety Investigation Branch is its investigation into wrong site surgery, through the wrong patients being identified in outpatient departments. The reference for the investigation was evidence from the NHS national reporting and learning system that the incorrect identification of patients is a contributing factor in patients receiving the wrong procedure. The safety recommendation to NHS England was to lead a review of risks relating to patient identification in out-patient settings, and to assess the feasibility to enhance or implement systematic controls such as technological options or the use of the NHS unique identification number. NHS England responded by stating that the work would require an understanding of the true scale and impact of the risks through observational study, which would be resource heavy. It said that, without evidence of the risk, that would did not justify the cost. Hence, the recommendation was considered but not acted on.

NHS England’s response highlights the cost of following the recommendations in the context of funding pressures and large waiting lists throughout the NHS. Many recommendations made by HSSIB may well not be acted on in the future for the same reason. We need to hear from the Minister how cost pressures can be alleviated, so that systemic failings can be acted on when they are identified and we will not see trusts being asked to deliver unrealistic transformations if the finance and personnel are not there to ensure that that happens. We do not want important recommendations in HSSIB reports gathering dust on shelves, marked as too expensive or difficult to implement.

A further concern, on the safety of maternity services in England, was raised by the Health and Social Care Committee on 6 July. The Committee recommended that

“HSIB investigations continue, but that HSIB reviews how it engages with trusts to ensure that the investigation process works in a timely and collaborative manner which optimally supports local learning and development. That review should include processes to ensure that healthcare professionals at all levels and across multidisciplinary team are able to engage with HSIB investigations… In addition, we recommend that HSIB shares the learning from its maternity reports in a more systematic and accessible manner. A top level summary of individual cases together with the key learnings derived from them should be shared rapidly across the NHS.”

I appreciate that there is a lack of clarity on what will happen with the maternity investigation programme, and no decision that I am aware of has yet been made on how the service will be delivered once HSSIB is set up, but these recommendations must still be acted on if HSSIB is to achieve its function. Engagement is essential, as is the way that learning is disseminated across trusts.

Across the Bill there is a focus on the role that the Secretary of State plays, but there is too little on how HSSIB will actually engage with trusts. We must remember that HSSIB’s creation is for the improvement of the national health service; it is not the Secretary of State’s personal investigation body. It is essential that systemic failings are investigated, and that learning takes place in a safe space. Indeed, that was the founding principle of Healthcare Safety Investigation Branch. I am pleased that those principles are to some extent maintained. In due course we will no doubt get on to whether that safe space is actually sacrosanct. There are also concerning aspects throughout part 4 of the Bill that suggest that HSSIB might not be quite as independent as we would want it to be.

Schedule 13 covers the provisions of HSSIB’s formation. It is worth taking a few moments to reflect on paragraph 1, which sets out very clearly that HSSIB is not to be regarded

“as the servant or agent of the Crown”.

That is a clear statement about the need for HSSIB to be an independent body, and we can all see why that is necessary. However, the Bill has repeated provisions in it that could cast doubt on, or impede, that independence.

Indeed, as soon as paragraph 1 is out of the way, we see the first issue where the stated aim of independence comes into conflict with reality. The provisions in paragraphs 2, 3 and 4 are strangely laid out. Paragraph 2 says there will be

“a Chief Investigator appointed in accordance with paragraph 3”.

I do not know what that statement adds to the Bill. However, paragraph 3 then says:

“The Chief Investigator is to be appointed by the non-executive members with the consent of the Secretary of State.”

Why does the Secretary of State have to give his consent? Does that not go against the notion of independence? When we add paragraph 2(1)(c), which states that not only the chair but all the non-executive members are appointed by the Secretary of State, it begins to look like HSSIB is a long way from the independent body we believe it should be.

The NHS has raised concerns regarding this provision, and it sought an amendment that would have introduced some pre-appointment scrutiny by the Health and Social Care Committee to ensure the independence of this body. That view was also held by the Joint Committee on the draft Health Service Safety Investigations Bill, which recommended that both the chair and chief investigator be subject to pre-appointment scrutiny by the Health and Social Care Committee. The Government’s agreed and stated that they would work with the Committee on the best way to achieve that. It is therefore a bit surprising that the necessary provisions are absent from the Bill and that the powers lie directly with the Secretary of State, which is why we tabled amendment 127. I am hoping to hear from the Minister that there will be an appointments process, because although it does not appear in the Bill, it is important.

In the appointment process for Keith Conradi as the chief investigator of the Healthcare Safety Investigation Branch, an open competition approach was taken in the selection panel, which included personnel from the NHS, the Department of Health and Social Care, the ombudsman and the HSIB expert advisory group. The pre-appointment process included a hearing with PACAC after the Secretary of State made it known who the preferred candidate was. A pre-appointment hearing then took place, and the Committee endorsed Mr Conradi. It would be helpful if the Minister could confirm that that is the kind of process he envisages taking place for the chair, and whether that would also apply to the non-executive members who will be appointed by the Secretary of State. In that situation, there is at least some independent scrutiny. Although we can probably all think of examples of where even that process has looked little more than a rubber-stamping exercise, it is certainly an improvement on what lies on the face of the Bill.

By contrast, amendment 128 is much simpler. It simply removes the requirement for the chief investigator’s appointment to be approved by the Secretary of State. I have not yet heard anything from the Minister as to why such approval needs to be in place. He said it is standard practice, but this is not a standard body, in the sense that it has to be seen to be independent of the NHS and the Department. Our view is that the requirement is superfluous and actually does damage and erodes the concept of independence, which we want to see with this body.

From the provisions in paragraph 3 of schedule 13, it is also unclear on what basis the Secretary of State may withdraw consent for the appointment of the chief investigator. If those circumstances arose, how would the chief investigator be appointed? Will the Minister set out the circumstances in which he would envisage consent being withdrawn? In that situation, what procedure would be in place, or is it the case, as we assume, that the non-executive members would have to continue to put forward suggestions until those were agreed by the Secretary of State? In a sense, they would keep asking the same question or a different question until they got a positive response, which does not really bode well for the concept of independence.

I would also be interested to know why the Secretary of State must appoint at least four members of the body. I do not think there has been a set number for executive and non-executive members outlined in the Bill. In the absence of that, I question why a set figure has been placed on the number of members the Secretary of State should appoint. Of course, we say that the number should be zero, but I do not think we will get the Minister’s endorsement on that.

On paragraph 4, it is not entirely clear why the Bill seeks to restrict the number of executive members to five, and why the Secretary of State needs to give his consent if it exceeds that number. At best, I can hazard a guess that it might be to ensure that his appointments are in the majority, which again does not sound particularly independent to me. It may be something to do with keeping a lid on costs, as all these people will presumably be remunerated. However, it seems rather odd that we have a body that is supposed to be independent, when the Secretary of State is looking not only to determine who holds many of the key positions but to restrict the total number of people who can work for the organisation.

It does not end there. Concerns relating to the undue influence of the Secretary of State continue in the provisions on the tenure of the non-executive members in paragraph 5(3) to (7). Sub-paragraph (3) states:

The Secretary of State may at any time remove a person from office as a non-executive member on any of the following grounds…incapacity…misbehaviour, or…failure to carry out the person’s duties as a non-executive member.”

The same provisions also allow the Secretary of State to suspend a person from office and enables them to be reinstated if the Secretary of State

“decides that there are no grounds to remove” the said member, or decides not to remove them under the provision. As the Committee might have noted, there is much talk throughout about the Secretary of State’s decision, with no explanation as to what may constitute misbehaviour. Given the events of the past year, I am not sure that a Secretary of State for Health and Social Care is always best placed to judge what might constitute misbehaviour, but I do not think any of us want to linger on that, so I will move on to the wider point.

Why would we as parliamentarians engaged in an important piece of legislation setting up what is supposed to be an independent body want to give the Secretary of State such broad and opaque powers over members of that body when he ought to steer clear of it? We should not be in the business of handing him such powers without making any attempt to define what constitutes misbehaviour or what procedures would be adopted to form such a judgment. What is the evidential threshold? Is there a burden of proof? Is there an appeals process, or can the Secretary of State simply wake up one morning and say that he is removing someone from office for one of the three reasons set out in paragraph 5(3), without having to produce a single scrap of paper in support of such action?

I hope Members can see that placing the power to remove or reinstate solely with the Secretary of State could not only leave him open to accusations of seeking to manipulate the make-up of HSSIB, but could see non-executive members reluctant to conduct themselves with free will owing to concerns that the Secretary of State might remove them. As Keith Conradi told the Bill Committee,

“Ultimately, we end up making recommendations to the Department of Health and Social Care, and in the future I would like to ensure that we have…freedom to be able to make recommendations wherever we think that they most fit.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 60, Q78.]

The Minister will no doubt be taking my concerns very seriously, but I am pleased to report that I have a solution in the guise of our amendment, which gives the powers to non-executive members, who may exercise them if a majority of them do so after a casting vote. It is important that non-executive members can be removed if circumstances justify it, but we consider the best people to ascertain that are fellow non-executive members. That ensures that there is a clear signal that HSSIB will be required to manage its own affairs, thus ensuring its independence. The Minister referred to wanting the non-executive members to behave in a harmonious manner and not trying to remove each of them from office. I am sure that will not happen most of the time, but if we are talking about a body that is truly independent, it should be up to it to make the judgments, not the Secretary of State.

Likewise, amendment 131 would remove paragraph 5(4), which would give the Secretary of State the power to suspend someone on the grounds set out. It stands to reason that if one accepts that, in order to ensure independence, the Secretary of State should not have the power to remove someone from office, that principle should also apply to the power to suspend.

On payments to non-executive members, as set out in paragraph (8), the Secretary of State is named as the person who determines the remuneration for non-executive members and the compensation payable to those who cease to be non-executive members in exceptional circumstances, but those are not quantified in the Bill. We face a situation where the Secretary of State can remove a non-executive member and then decide to compensate them. It remains to be seen why a Secretary of State must decide on the remuneration and within what parameters remuneration will be considered appropriate.

The provision leads to concerns about transparency and fails to clarify whether the remuneration for each member will be the same. If the Secretary of State chooses at least four of the non-executive members and decides whether members can be suspended or removed and how much remuneration they will receive, that calls into question how it can be argued that the Secretary of State has anything other than undue influence over a body that by its very nature should be an independent non-departmental public body. I do not see why the Secretary of State would want such powers, particularly when he already has enough on his plate: covid, record waiting lists, and the integration plans that have not been covered by the Bill but that we expect more on shortly.

However, concern for the Minister’s workload is of course secondary. Independence is undermined by having these powers in the hands of the Secretary of State. I gently suggest to the Minister that the solution again manifests itself in our amendments 129, 132, 133, 134 and 135, which provide for the chief finance officer to undertake the responsibility set out in paragraph 8 as part of their statutory role.

On matters of pay to members of staff, the ability to appoint and set remuneration sits with HSSIB, aside from pensions, allowances or gratuities, where approval of the Secretary of State is required. Will there be input from trade unions or the Health and Social Care Committee, or will such agreements will be private matters between HSSIB and the Secretary of State? Again, there is the possibility of a conflict of interest because of the undue influence the Secretary of State may hold over the body.

Paragraph 10, on procedure, states:

“HSSIB may regulate its own procedure.”

I agree that, in principle, procedural matters should sit with this body, but it seems odd that Parliament should legislate for that without having any view on how HSSIB should run itself, given that it has already been operating for a number of years. It is probably a moot point but if there were procedural changes in the future we would like a commitment that they would be made following consultation with Parliament, patient groups and, of course, workforce representatives.

Paragraph 14 places full funding decisions in the hands of the Secretary of State in the absence of a timescale for such funding agreements, with conditions that the Secretary of State can impose if they consider it appropriate. I share the NHS’s concerns that any funding should be set for a specified time period, which may be increased after consultation if, for example, costs are likely to increase, depending on the nature of the investigations or the committees and assistance required in cases where expert assistance is needed. I am aware of a suggestion that there might initially be a three-year deal, but any funding deal in line with the review period of HSSIB should ensure that HSSIB can function as intended.

I would also welcome clarity on what conditions the Secretary of State can impose on payments made to HSSIB, which again are set out in the Bill and could bring the independence of the body into question. On the face of it, this is a rather broad power. If we were to subscribe to the maxim “Follow the money”, it would not be too difficult to see how problems could arise under those circumstances.

Finally, paragraph 16 concerns HSSIB’s ability to raise income from non-NHS bodies. I presume—I am sure the Minister can confirm this—that that power is not something that can be visited on NHS bodies. We need to ensure that that power does not become more of a priority than it should be, in terms of funding restrictions, that the body’s primary aim is still followed, and that this power does not lead to conflicts of interest.

Photo of Karin Smyth Karin Smyth Labour, Bristol South 3:15 pm, 19th October 2021

It is a pleasure to see you in the Chair, Ms Elliott. I would like to address some comments to schedule 13, following on from my hon. Friend the Member for Ellesmere Port and Neston. It is not an interest, but I am a member of the Public Administration and Constitutional Affairs Committee, and much of the appointment issue is within our purview.

HSSIB is a really important new body and, as the Minister outlined, it must be of the highest integrity. It must absolutely be built on the highest standards of trust when it comes to the wider system and the general public. We will discuss how that will happen over the forthcoming clauses.

As the Committee knows, the issue of accountability is close to my heart. HSSIB being a public body, and I am afraid to say that the Government’s record in the last couple of years does not fill me and many others with great confidence in terms of how this body is being set up. Its leadership merits due consideration both by the Committee and when the Bill goes to the Lords and then returns to the Commons.

The Government’s recent record in pre-appointment scrutiny hearings is not good. We discussed that back in October with the then Commissioner for Public Appointments, and I will come back to some of the comments made then. The appointment of the chair of NHS Improvement in 2017 was unusual. The Health and Social Care Committee approved the appointment of Baroness Harding with some clear recommendations, one of which was that she should

“relinquish the Conservative whip in the House of Lords”.

It is unusual for a member of these bodies and maintain a party allegiance, let alone to vote for that party in this place. Further, given Baroness Harding’s

“own admission of a lack of professional experience in health and social care” the Committee recommended that she should undertake to gain “the widest possible experience” of learning about the service before taking up the post. Finally, the Committee said that she needed to

“show her full commitment to the NHS while in this role in her own personal decision-making.”

That is fairly strong talk to the Government from our colleagues on that Select Committee. Did the Government act on this advice? Did Baroness Harding? The answer is a very loud, resounding—and terribly expensive, as it turned out—no. She did not and the Government did not. Not only that, but they went on to increase responsibilities throughout the pandemic by creating not another public body but Executive agencies—we have discussed the difference between public bodies and Executive agencies—thereby putting the appointment out of the purview of the Commissioner for Public Appointments.

We talked about that in Committee last October. I asked Mr Riddell, the chair at the time, about the pre-appointment reports. It is not just the one from the Health and Social Care Committee; there is a bit of a pattern in the Government’s regard for the scrutiny work done by Members of Parliament and in Select Committees, and there are a number of examples, which I will not detain the Committee with now. If Members are interested, they can read the reports of Public Administration and Constitutional Affairs Committee itself. A number of Committees and individuals have not been put through that due and proper process.

In fact, the Public Administration and Constitutional Affairs Committee discussed how we can make sure that the Commissioner for Public Appointments looks at where the gaps are. With the Executive agency, we fell into the ridiculous conversation about whether Baroness Harding was a civil servant and subject to civil service code or subject to the Commissioner for Public Appointments. The answer was neither, really, because she was not technically in charge of the Executive agency as chair or a civil servant either. Especially when talking about the spending of £37 billion of taxpayers’ money, that is completely unacceptable. There is a gap between these effective agencies. Whether NHS England itself as a public body is the best arbiter or not is another cause for discussion. I would partly agree with testing the waters with some of these questions here today.

Clearly, something better needs to be done, and the behaviour of the Government in the last couple of years and under the previous Secretary of State does not fill us with confidence, though it may be that this Secretary of State is different. It is no way to make legislation. It is certainly no way to start off this new and important body, which we are all desperate to ensure works well. There will be a lot of trust and good work from people involved in safety in the NHS who are looking to it to achieve great things, so it must start off at the highest possible standard and with the most assurance that the process by which the person appointed is of a high standard.

Basically, we are left to trust the Government and the individual to abide by the codes, and we have to trust the Cabinet Office to make sure that code is implemented, but we have no evidence to suggest that that will be the case. I am not sure what the Government will do about that, apart from maybe try to be a bit better and abide by their own codes and standards, laid down two decades ago, about how people should behave. The Minister is an honourable man; we cannot always choose who we work with, but he needs to take those points particularly seriously. I am sure that he will be subject to more scrutiny in the Lords and elsewhere about standards and this appointment. I hope that he can give us some assurance that the Department of Health will be abiding by the principles of the Cabinet Office codes far more strongly in the future than it has in the past.

Photo of Edward Argar Edward Argar Minister of State (Department of Health and Social Care) 3:30 pm, 19th October 2021

We have had the opportunity in this clause and these amendments to range more broadly in setting out the landscape and issues relevant to our debates on the forthcoming clauses. A number of questions were raised in the context of this debate, and I will aim to answer as many as I can.

The shadow Minister, the hon. Member for Ellesmere Port and Neston, talked about budgets and resourcing in his opening remarks. As he will be aware, schedule 13 provides for funding to be given as the Secretary of State thinks appropriate. We are clear that we want HSSIB to be adequately resourced to exercise its functions, but it is right that when a public body is spending public money, there is democratic oversight, because that money comes from the public purse. We are determined to ensure that it has adequate resourcing, but I believe it is right that the Secretary of State plays a key role.

The hon. Gentleman also asked, I think—he can shake his head if I misunderstood what he said—about the impact of any recommendations or decisions on individual trusts or the NHS, and their ability to act on them without it disproportionately affecting their resourcing and their plans. We are confident that, as we have seen with previously identified failings—not necessarily through this process, but in the past—trusts are able to address those recommendations. However, in cases where there is a major incident leading to significant reform, as has happened—I suspect we all hope that it does not happen again—resources can be made available to address a particular systemic failing across a much broader landscape. I cannot pre-empt decisions made by the Secretary of State or the Chancellor of the Exchequer in those circumstances, but I hope that the principle of adequate resourcing is established, as we all want.

The shadow Minister also expressed concerns that, at their heart, were about the organisation either not being, or being perceived to not be, sufficiently independent of the Secretary of State, because of the nature of the governance arrangements put in place around it. I do not think that is the case. We are adopting a standard approach to managing public appointments to a body of this sort. I would be more concerned if the NHS were responsible for appointments or funding, because although I do not want to pre-judge its work, I expect that HSSIB will more frequently be looking into and reporting on NHS bodies.

On some of the specific points on the role of the Secretary of State and the appointment of non-executive members and the chair of the board, I can give reassurance that that will be managed in line with the Government’s code for public appointments, regulated by the Commissioner for Public Appointments. I hear what the hon. Member for Bristol South says; she will not be surprised that I will avoid being drawn on individuals, but she made her point and made it clearly.

Regarding the chief investigator particularly, it would be normal for boards to have more non-executive than executive members—we see that in both the private and public sectors—and that ensures that one-step removal from the executive operation the ability to challenge within that board. That is reasonable. The chief investigator is a key figure in this body, and I do not believe that the approval by the Secretary of State can call into question the independence of the HSSIB. The Secretary of State will not appoint the chief investigator—that is the responsibility of the non-executive board—but it is right that the Secretary of State approves that appointment, ensuring the route of accountability. I can go a little further and offer some reassurance to the shadow Minister, in that I envisage the chief investigator appearing before the Health and Social Care Committee—the most appropriate Select Committee—before the appointment is made.

To respond to the point made by the hon. Member for Bristol South, the first pre-appointment hearings in Select Committees took place in, I believe, 2008, under the Government headed by Gordon Brown, to give credit where it is due. That has since been strengthened, and we had the Grimstone review on appointments in 2015, so work on the subject has continued. With her Select Committee hat on, I suspect the hon. Lady would acknowledge that but say more needs to be done, which is a perfectly legitimate position to hold.

In terms of removal of board members, the shadow Minister mentioned the three grounds on which a Secretary of State can remove board members and highlighted misbehaviour, suggesting it is a wide term and could mean the Secretary of State can just say, “Well, that’s misbehaviour.” Although I am not a lawyer, my understanding is that misbehaviour is a defined or well-understood legal term that has case law and precedent sitting behind it that would be expected to inform a decision, so that decision could not itself be then subject to challenge for unreasonableness. I may be wrong, but I think the Wednesbury ruling defined unreasonableness. I hope the shadow Minister is reassured that while the term may look opaque or broad, it is understood within the legal profession in that context.

The shadow Minister also made a point about the chief financial officer and remuneration. The governance code for public appointments states:

“Ministers must be consulted before a competition opens to agree the job description for the role, the length of tenure and remuneration.”

It is standard practice for the remuneration policy for non-executive members of NDPBs to be decided by the Secretary of State, with advice going to Ministers on including information on the make-up and diversity of the board. I do not think there is anything in these provisions that goes beyond or moves away from the current practices for the appointment of members to similar NDPBs.

I do not believe there is anything here that would call into question the independence or integrity of those who were appointed. The key figure is the chief investigator, in terms of bringing public trust to bear on the findings of this organisation. That appointment would be carefully considered, made by the board and approved by the Secretary of State, with the key check in this place of the appointment going through a pre-appointment scrutiny hearing.

I hope that gives the hon. Gentleman some reassurance. I fear I have more work to do over the coming clauses to offer reassurance on a number of aspects of this, but I hope that addresses as many of his points as I could remember. If I have missed some, I suspect he will come back to me in future clauses, because these clauses are all interlinked.

Question put and agreed to.

Clause 93 accordingly ordered to stand part of the Bill.

Photo of Julie Elliott Julie Elliott Labour, Sunderland Central

We now come to amendments 127 to 135, which have just been debated. Does the hon. Gentleman wish to move any of these amendments?

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

The Committee will be relieved to know that I will not move every single one of them. What the Minister said about the pre-appointment process is helpful. As my hon. Friend the Member for Bristol South said, it is not a perfect solution—

Photo of Julie Elliott Julie Elliott Labour, Sunderland Central

Mr Madders, the opportunity to debate was before. You just need to indicate which amendments you wish to move.

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

I wish to move amendments 130 and 131, and I will not press amendments 127 to 129 and amendments 132 to 135.

Amendment proposed: 130, page 204, line 32, leave out “The Secretary of State” and insert

“A majority of non-executive members following a vote”.—(Justin Madders.)

This amendment would give a majority of non-executive members the power to remove a person from office following a vote.

Division number 26 Health and Care Bill — Clause 93 - Establishment of the HSSIB

Aye: 5 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 5, Noes 10.

Question accordingly negatived.

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

I beg to move amendment 131, in schedule 13, page 204, line 37, leave out sub-paragraph (4).—(Justin Madders.)

This amendment would remove sub-paragraph 4 from schedule 13 of the Bill, which confers powers on the Secretary of State to remove a person from office in HSSIB.

Division number 27 Health and Care Bill — Clause 93 - Establishment of the HSSIB

Aye: 5 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 5, Noes 10.

Question accordingly negatived.

Schedule 13 agreed to.