Care Bill [Lords]

Public Bill Committee, 30 January 2014.

Clause 109 - Co-ordinating and promoting regulatory practice etc.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment 91, in clause 109, page 95, line 35, after ‘Health;’, insert—

‘() the Chief Nursing Officer of the Department of Health,’.

Hugh Bayley (Labour, York Central)

With this it will be convenient to discuss amendment 169, in clause 109, page 95, line 41, at end insert—

‘(j) the Chief Nursing Officer of the Department of Health;

(k) the Medicines and Healthcare Products Regulatory Authority.’.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

As was said at the beginning of the previous sitting, we are very nearly there. I did not see a man on the way here with a sign saying, “The end is nigh”, but none the less it feels like we are pretty much at the end of the road in this wonderful process. I look forward to the two days of Report, the next stage of the Bill.

The amendment is short but, as I hope the Minister will agree, perfectly formed. Its intention is to correct a defect that I think must have resulted purely from an oversight. Clause 109, which outlines the co-ordination and promotion of regulatory practice with regard to the Health Research Authority, lists numerous individuals or organisations that should be part of the consideration of how the HRA operates. Subsection (1) contains a long list that includes, quite rightly, the Secretary of State, those responsible for licensing medicines, the Health and Social Care Information Centre, the chief medical officer and several other bodies.

One problem with comprehensive lists is that later they can be interpreted as excluding rather than including, so I wanted to ensure that we did not erroneously exclude the voice of a rather important profession in such matters: the Department’s chief nursing officer, who seems to me to have some interest in supporting the Health Research Authority in the discharge of its responsibilities, ensuring that the nursing profession plays its part in promoting access to and awareness of trials, and supporting patients and families in decisions that are sometimes difficult and complex. I therefore tabled the amendment to ensure that the central and fundamental role of nursing is reflected properly. I hope that the Minister can give us some reassurance that its omission was an oversight that the Government are keen to correct. I look forward to his response.

Hugh Bayley (Labour, York Central)

It has been the practice so far in our discussion of the Bill to debate amendments and therefore not clause stand part. My intention with this group is to continue on that basis, so if people want to speak more widely about the clause and not just about the narrow amendments, they are free to do so.

Sarah Newton (Conservative, Truro and Falmouth)

Thank you very much, Mr Bayley. I would certainly like to take that opportunity, so I welcome your decision.

When I was travelling in on the tube this morning, I did not see, “The end of the world is nigh”, but I did notice a Cancer Research UK advert proclaiming, “Three times more people than are in this carriage are saved by research each day”. It struck a chord with me about the importance of these discussions. Getting the regulation right for how we undertake medical research is critical, not only because that research saves and improves lives but because the UK is a world-leading centre for research, and we have world class universities in life science and medical research. The purpose of setting up the Health Research Authority was to facilitate safe and ethical research and, by working with relevant partners, help create an environment in which applying to do research is simpler and people get quicker decisions. That will be an important part of getting the regulatory regime right. Will the Minister therefore confirm that, as the HRA becomes an arm’s length organisation, the anticipated triennial review will take place so that its achievements so far can be noted, lessons can be learnt and improvements considered?

I have the great fortune of being a member of the Science and Technology Committee, which undertook an inquiry into medical research and clinical trials. In that, we noted the significant positive steps that the Government had taken to build trust among the public about the safety of participation in clinical trials and how well received the HRA has been so far. I want clarity on whether the HRA’s important work, such as its 2013 “OK to ask” campaign, which encouraged people to participate in clinical trials by raising awareness, will be part of its new regulatory regime as proposed in the Bill, so that protection of those participating in clinical trials and promotion of participation is there in equal measure.

The UK Clinical Trials, which the Government introduced, is great: it helps more people understand how they can participate in research and enables more research to be carried out. In the Minister’s summing up, will he confirm that the HRA will have, as its key role, not only protecting people, but promoting participation in medical research so that the UK’s world-leading academics can continue to pioneer new treatments? That work is not just a benefit to our constituents; it contributes a great deal to growth in the economy, which the Government see as being science and technology based.

Jamie Reed (Labour, Copeland)

I almost regret mentioning the gentleman with the sandwich board that said, “The end is nigh,” not least because I forgot to mention which constituency he represented—I am sure that it was a marginal seat.

I thank the right hon. Member for Sutton and Cheam for tabling his amendment and starting the debate on this group of amendments. He has demonstrated a sound and impressive knowledge of the Bill and the pertinent issues throughout our Committee sittings. I do not think that we have disagreed in principle at any time, even if our opinions have diverged at certain points on the most effective means of achieving our aims. Our agreement here is no surprise, given the wording of his amendment and that of amendment 169, which is in my name and that of my hon. Friend the Member for Leicester West. Both amendments would make additions to subsection (1).

The subsection states that the HRA must co-operate with a number of groups to exercise effectively its

“functions relating to health or social care research, with a view to co-ordinating and standardising practice relating to the regulation of…research”.

So far, so good. The explanatory notes state:

“The aim of this…is to encourage co-ordination and standardisation of practice of such bodies and persons when carrying out functions relating to the regulation of health and social care research.”

That is a commendable aim, the achievement of which would undoubtedly improve the efficiency of undertaking research, which would be to the benefit of health service professionals and patients.

I share the right hon. Gentleman’s concern about omissions from the list in the subsection and he made a good point about the nature of a comprehensive list. Amendment 169 deals with two omissions: the chief nursing officer and the Medicines and Healthcare products Regulatory Authority. I thank the Royal College of Nursing for its help and advice on the first part of the amendment. It believes that the omission of the chief nursing officer is an oversight that must be rectified. It stated:

“The nursing profession has a fundamentally important contribution to make in health and social care research, recognised by the UK Clinical Research Collaboration...and National Institute for Health Research”.

The college goes on to argue:

“The paucity of evidence of what works in care and caring practices could be a factor in identifying what constitutes good levels of care. In times of austerity when resources are limited it is more important than ever to ensure that care and caring practices are both compassionate and effective.”

I am sure that the Committee agrees with such arguments. If those are not sufficient to justify the inclusion of a chief nursing officer, the RCN gives further reasons:

“Research is essential to develop the knowledge base to underpin nursing practice and ensure that the deployment and interventions of the largest health care workforce are both efficient and effective.”

As the right hon. Gentleman has set out, there is simply no justification for the omission of chief nursing officer from the list. I hope that the Minister will agree with the arguments and accept the amendment. If not, I hope he will explain why.

Our amendment goes further: we want to see the Medicines and Healthcare products Regulatory Authority included in the list. I understand that the licensing authority is referred to in the list, but, under the Medicines Act 1968, the function is conferred on a group of Ministers to act as the licensing authority, so there is legislative reasoning for the inclusion of the MHRA. With the functions of the clause to promote co-operation and research and the regulation of research, it is essential that the body responsible for regulating medicines in the UK is included.

The MHRA is responsible for regulating all medicines and medical devices in the UK by ensuring that they work and are acceptably safe. Underpinning all its work lie robust and fact-based judgments to ensure that the benefits justify the risks. That is the blurb from the MHRA website. It clearly has a role to play in the standardisation of research practices. Can the Minister outline the role he expects the MHRA to play in relation to the functions of the HRA in subsection (1)? The benefits of involving the regulator of medicines and medical devices in the research and the development of medicines and medical devices is surely apparent to all. The MHRA expertise on the efficacy and safety of products cannot be surpassed, and it must have a part to play in this area.

One of the key objectives for the MHRA is to support research and ensure, through the application of better regulation principles, that regulation does not stifle innovation. As such, its place in the process becomes even clearer. Subsection (l)(i) gives the Secretary of State power to introduce regulations that would give direction for other groups to be included in the list, with which the HRA must co-operate. Can the Minister give assurances that both the chief nursing officer and the MHRA will be included when the regulations are introduced, and can he assure the Committee that that will be done sooner rather than later? If he can give those assurances, there will be no need for me to test the will of the Committee.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I am pleased to confirm to the Committee that the consensual nature of our proceedings will continue in our discussions on the clause. We have had speeches from Government and Opposition Members highlighting the importance of facilitating research and ensuring, as my hon. Friend the Member for Truro and Falmouth said, that the UK can be proud of our international standing as a centre of international research and a centre of excellence for that research. The clauses on the role and function of the HRA are about facilitating and supporting the development of UK plc as an international centre for research. They are also about strengthening the ethical criteria for research and streamlining the process to make it easier for clinicians, researchers, patients and the public to understand how ethical approvals are given in medical research.

My hon. Friend the Member for Truro and Falmouth asked whether the Government will carry out a review of the HRA and its functions. The answer is yes, absolutely; I can confirm that. It will be undertaken, as appropriate, after the HRA’s creation as a non-departmental public body once the Bill is enacted.

I hope that I can also reassure my right hon. Friend the Member for Sutton and Cheam. The move to establishing the HRA’s functions in statute will pave the way to cementing Britain’s place in the world as a leader in international research. Amendments 91 and 169 directly concern the HRA’s role and functions and the people who have a duty to co-operate with that body. Specifically, the amendments deal with the bodies that are required directly to co-operate with each other in respect of functions related to health and care research, with a view to co-ordination and standardising regulated practice, under clause 109(1).

It is worth reflecting on the fact that the HRA is already making excellent progress as a special health authority in co-operating with other bodies to create a unified approval process for research and promote consistent, proportionate standards for compliance and inspection. Sir John Tooke, of the Academy of Medical Sciences, gave evidence to the Joint Committee that scrutinised the draft Bill, which was chaired by my right hon. Friend, saying:

“In terms of successes in its early days, we welcome the relationships that have been forged with the MHRA and devolved administrations. Those are very important if this is going to act as a coherent body. We also welcome the broader stakeholder engagement because we will only resolve these issues if we involve all the parties that are involved in the process. The creation of the Collaboration and Development Steering Group is a very important step in that regard.”

I am sure that my right hon. Friend remembers that.

Both amendments would add the chief nursing officer of the Department of Health to the list of persons and bodies under duties of co-operation in clause 109(1). Amendment 169 would also add the Medicines and Healthcare products Regulatory Agency to the list of bodies.

We all recognise the valuable contribution that nursing research can make to improving health. It may be useful if I outline some of the valuable contributions from work that is going on, which I am sure will reassure Committee members. Through the National Institute for Health Research’s policy research programme, the Department supports several projects on nursing care, led by or involving nurses. Research funded by the NIHR is typically multidisciplinary and often involves a range of health care professionals. The NIHR supports a range of other research on nursing and care. Committee members will be reassured to know that clinical research nurses comprise the largest research group involved in delivering clinical research in our NHS. There are more than 3,000 nurses in the NIHR clinical research networks. Two nurses have been given the senior investigator award, which is that body’s most prestigious award. One of those, Professor Nicky Cullum, from Manchester university, was made a dame for services to nursing in the Queen’s birthday honours list last year.

The integrated clinical academic training programme for nurses, midwives and allied health professionals and the NIHR fellowship programme support 100 annual training places on clinical academic training masters programmes for nurses and allied health professionals, 18 clinical doctorate research fellows and clinical lecturers, who are nurses, and 10 NIHR doctoral fellows, who are nurses.

The amendments would add the chief nursing officer of the Department to the list of persons and bodies that must co-operate with one another. However, the Department does not have a chief nursing officer, so the amendments as drafted would not work. The Department has a director of nursing. The chief nursing officer is based in NHS England, as my right hon. Friend will remember from piloting the Health and Social Care Act 2012.

Clause 109(1) lists the persons or bodies with whom the HRA must co-operate in exercising its functions: the Secretary of State, the licensing authority for the purposes of the Medicines Act 1968, to which I will return in a moment, the Health and Social Care Information Centre, the chief medical officer of the Department, the Human Fertilisation and Embryology Authority, the Human Tissue Authority, the Care Quality Commission and the Administration of Radioactive Substances Advisory Committee. Those bodies and individuals have statutory functions relating to the regulation of health or social care research. For that reason, we want them to be under a reciprocal duty to co-operate with one another and the HRA.

Unlike the Department’s chief medical officer, neither NHS England’s chief nursing officer nor the Department’s director of nursing have statutory functions relating to regulation of research. It may be useful if I explained why the chief medical officer has such a statutory function. This is not about creating arbitrary distinctions between doctors and nurses and different parts of the medical profession; we value multidisciplinary research and nurses are leading the way in much of the work being done by the NIHR. The CMO's function in this regard relates to previous statutes.

The post is listed because it holds specific statutory functions related to the research under the Abortion Regulations 1991. The regulations require notice to be given to the Chief Medical Officer of any abortion and any information relevant to it. Disclosure of such information is restricted, apart from in specific circumstances which include disclosure for the purposes of scientific research. The Chief Medical Officer is responsible for determining whether disclosure can be made.

I have sympathy with the amendment and I hope I have assured hon. Members with what I have said that, in delivering its functions, the existing Health Research Authority is working, and the new authority will work, with a wide range of bodies with an interest in health and social care research. Subsection (3) gives the authority a freestanding duty to promote the co-ordination and standardisation of practice relating to the regulation of research. In meeting this duty the authority will work with bodies and persons with an interest in multidisciplinary research, including those with an interest in the contribution of the nursing profession and NHS providers, in addition to those persons listed with specific statutory functions.

The existing special health authority employs a number of people with a nursing background, including the head of the National Research Ethics Service, who has previously held a number of clinical nursing posts. Around three quarters of research ethics committees have at least one nurse member and as we are expecting a smooth transition from the special health authority to the non-departmental public body when the Bill is passed, the new body will have similar nurse representation. I am sure my right hon. Friend will agree that that is very strong nurse representation.

More broadly, I reassure hon. Members that the main objective of the Health Research Authority requires the authority to facilitate the conduct of safe, ethical research in performing its functions. It will, of course, do this in the multidisciplinary way we have been discussing today. In meeting this objective, the authority must facilitate all types of high quality, ethical research, including research that is multidisciplinary in nature. In the explanatory notes we now explicitly state that the definitions of health research and social care research are not restricted to any particular professional group—so, for example, they would include nurse-led research.

Turning to the amendment which would add the Medicines and Healthcare products Regulatory Agency, the MHRA, to the list in subsection (1), I am pleased to reassure the hon. Member for Copeland that there is already a duty of co-operation with the agency. As an agency of the Department of Health, the MHRA is not established in statute, which is why it is not listed by name in the clause. However, it does have statutory functions relating to the regulation of health research, as it is the licensing authority for the purposes of the Medicines Act 1968. It is, therefore, the body listed in subsection (1)(b). The MHRA is responsible for regulating all medicines and medical devices in the UK.

It might be worth highlighting an example of the MHRA’s statutory functions under the Medicines for Human Use (Clinical Trials) Regulations 2004, which implement EU Clinical Trials Directive 2001/20/EC. Clinical trials of medicinal products in human subjects require authorisation by the competent authority, which is the MHRA in the UK. The MHRA therefore assesses applications from sponsors to conduct clinical trials of medicinal products. The HRA, which would become a member of the UK Ethics Committee Authority under the Bill, provides for the ethics of clinical trials of medicinal products to be assessed. So both the HRA and the licensing authority, which is the MHRA under the Bill, have relevant statutory functions relating to the regulation of research. That is an example, also, of the streamlining of research that we have been describing throughout our discussions this morning.

Subsection (1)(b) already creates a reciprocal duty of co-operation between the MHRA, the HRA and the other bodies listed in this section, by virtue of the fact, as we have discussed, that the MHRA is the licensing authority for the purposes of the Medicines Act 1968. I hope that I have explained why neither the NHS England’s chief nursing officer nor the Department of Health’s director of nursing are specifically mentioned in subsection (1), and that hon. Members are reassured that the Health Research Authority will have an interest in multidisciplinary research by virtue of its main objective. I also hope that hon. Members are reassured that subsection (1)(b) would already create a reciprocal duty of co-operation between the HRA, the MHRA and the other bodies listed. With these explanations and reassurances, I hope that hon. Members will not feel the need to press their amendments.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the Minister for the reassuring way he has set out the conduct that he expects the Health Research Authority to adopt. I am now clear why this clause may not be the most appropriate place to put a technically deficient amendment. None the less, I hope that the Minister will ensure that the Health Research Authority engages further with the RCN, which is clearly sufficiently concerned about this matter to raise it in briefings to members of the Committee and sought the tabling of this amendment. I hope that the Minister’s words will also reassure the RCN and on that basis I beg to ask leave to withdraw the amendment.

Clause 111 - Approval of research

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I want briefly to raise a question and make a request. I have been working with the Teenage Cancer Trust for some time looking at some issues that arose from the tragic case of a young lady called Chloe Binner, who died from an aggressive form of cancer. She was unable to get on to clinical trials, because of age bars that were built into those trials. A lot of interesting progress has been made in this country around the question of approval of research, which is the subject of clause 111.

However, we still feel that not enough progress is being made to ensure that enough teenagers are getting into research trials. We feel that the way in which trials are designed is based on the mechanism of action rather than the chronological age of the patient to determine whether they are in or out of the trial. A change in approach would give much heart to many parents and teenagers who currently find themselves shut out of trials. It could also help to expand the number of trials taking place.

My request is therefore to ask the Minister if he will consider meeting me and the organisations to discuss how this clause and others relating to the Health Research Authority can be used to help effect an acceleration of access to these trials for teenagers.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

My right hon. Friend makes a very important point. We need to have the right health research in place, particularly in important periods of transition in a child’s life. More broadly, I hope I can reassure my right hon. Friend and, of course, I will be pleased to meet him. He has a keen constituency interest in his local hospital, the Royal Marsden, and has been a great supporter of it. Of course, when it comes to children, additional safeguards may have to be put in place. However, the general spirit of the clauses is about promoting much more streamlined processes of health research for children and adults. I hope that that provides some reassurance, but I would be delighted to meet him and representatives from his constituency or whoever else he chooses to bring to the meeting.

Clause 115 - Approval for processing confidential patient information

Jamie Reed (Labour, Copeland)

I rise to make some brief but pertinent points about the impact of the provisions in clause 115. First, let me be clear that, in principle, the Opposition support the proper utilisation of anonymous patient data. The importance of such data in medical research, and in the synthesis of new treatments and better care, cannot be overstated. In research terms, more information about how people with certain conditions react to treatments can led to better research being undertaken, which uses resources more efficiently and improves a patient’s quality of life.

We should all strive towards those ends, and I am sure that we are doing so, but they do not justify any means. It is acceptable to use patient data only in a proper manner. Patient data are rightly private, and they must continue to be so. The Minister must explain how he intends to ensure that adequate safeguards are in place to protect patients and their data. Phil Booth, the co-ordinator of the patient group medConfidential, has said of the clause:

“One of people’s commonest concerns about their medical records is that they’ll be used for commercial purposes, or mean they are discriminated against by insurers or in the workplace.

Rather than prevent this, the care data scheme is deliberately designed so that ‘pseudonymised’ data—information that can be re-identified by anyone who already holds information about you—can be passed on to ‘customers’ of the information centre, with no independent scrutiny and without even notifying patients. It’s a disaster just waiting to happen.”

Will the Minister respond to the points raised by Mr Booth? The explicit removal of the Secretary of State’s power to scrutinise applications for patient data takes away a significant protection. That decision will be taken instead by the Health Research Authority. Given that the authority will be a under a statutory duty to consult a wide range of professional bodies, however, it will logically have an in-built bias towards releasing such information.

Mr Booth also touches on the idea of pseudonymised data—patient data that are redacted, but only partially. They would still contain an individual’s date of birth, ethnicity, gender and postcode, all of which are remarkably personal to a patient. I think it is evident to the Committee that it would be relatively easy to identify somebody using that information. Mr Booth highlighted the fact that the data are not anonymous and have not been redacted fully, and as such could lead to discrimination by insurers or in the workplace. That is unacceptable, and nobody wants to see that happen. I hope that the Minister will address those points.

I would also like the Minister to respond to a quote that The Guardian attributed to Mark Davies, the public assurance director at the Health and Social Care Information Centre, which is the body that will hold patients’ data. He said:

“You may be able to identify people if you had a lot of data. It depends on how people will use the data once they have it. But I think it is a small, theoretical risk”.

How can it be right for the Government to absolve themselves of the responsibility of safeguarding patient data when those data can be used to identify someone? Mr Davies said that the risk depends on

“how people will use the data once they have it.”

Do the Government retain any responsibility for ensuring that the data are used in a proper manner, or can buyers use the data in any way that they see fit once they have purchased them? If it is the former, I would like the Minister to outline what the safeguards are, and if the latter, I would like him to justify the freedom that the clause will grant to companies.

I said I would be brief, so I turn to my final point on the matter, namely the patient whose personal data are up for grabs. Will the Minister explain why there is no mechanism for notifying a patient when their data have been purchased? I also want to address the issue of opting out of the data-sharing system altogether. I understand the benefits of wider participation, but patients must be given the chance to opt out of the scheme. Yet we understand that the Government are penalising those GPs who have patients who opt out. That is leading to reports that GPs are making it more difficult for patients to choose to withdraw from the scheme. That is unacceptable and cannot be justified.

Finally, the Government’s public awareness campaign has left a lot to be desired and I have a number of questions on that. Under the previous Government, issues of patient data were subjected to a wide public awareness campaign. Personalised letters, which—as we know from our day jobs—people are likely to read, were sent to everyone in the country and a six-month public awareness campaign was undertaken. We have not seen anything on the same scale for what amounts to such a big change. Will the Minister explain why not?

The Government’s actions have amounted to the distribution of an information leaflet that could be mistaken for junk mail and not be read. Given that the same leaflet has been sent out, can the Minister tell us how his Department has quantified the delivery rate? Does the Department know how many households have definitely received the leaflet? Can anyone be sure? If everyone has received the leaflet, how many have actually read it? How is that measured?

Patient privacy must be respected at all times and I do hope that the Minister can explain what safeguards he has put in place to ensure that any patient information is completely anonymous and that companies who access this information cannot use it to identify patients.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I endorse the points made by my hon. Friend the Member for Copeland. We can all share the objective of having a more streamlined research process. However, removing the safeguard of the Secretary of State from the process is a serious matter. We must ensure that the unintended consequences of such a move are properly debated and considered. I would like to see the clause deleted from the Bill.

Data confidentiality is a major public concern that has understandably increased with the recent health reforms, particularly the centralisation of many aspects of the reformed NHS and Department of Health. There has been an increase in the number of quangos and unelected bodies, including NHS England, Health Education England and now the HRA. It is wrong to hand over ultimate control of such sensitive issues as patient data to an unelected quango.

I do favour a streamlined process for supporting research. As a former public health director of research, I know it is important to do that. However, I am concerned about unintended consequences. As my hon. Friend mentioned, we have seen an increased privatisation of certain health services and increased concern about how the data might be used by private health insurers and others. We need to consider the matter fully and recognise the experience of the Americanised system of how health data are used in that way. The ultimate consequence would be the exacerbation of health inequalities in a two-tier health service.

My hon. Friend also mentioned the national opt-out process. I am grateful to the Minister for some of his written answers to my questions on the matter. I hope he will answer in detail my hon. Friend’s inquiry about how it is being monitored. There is a concern that there is no national process. I have a question about whether one can opt out over the phone. The process seems very ad hoc. My household certainly has not received any information about the system. If I now ask the Minister if I can opt out of the process, will that be acceptable? We need to be clear about the opportunities for patients to ensure the safety of their information.

Grahame Morris (Labour, Easington)

I want to say a few words in support of the shadow Minister and my hon. Friend the Member for Oldham East and Saddleworth.

There is agreement about the need for research and there has been excellent news this week. I am always sceptical about reports in the Daily Express but tremendous strides are being made, with the potential for a cure for type 1 and type 2 diabetes, and today there is news about a breakthrough in treating peanut allergy. Those are important steps forward, and no one in the Opposition denies the need for proper research in a proper framework. However, many members of the public share the concern that there will be no way for them to work out who has access to some of the more sensitive information about them—their medical records. Nor will they know what use the data are put to.

My understanding, although perhaps the Minister will correct me if I am mistaken, is that the extracted information will contain NHS numbers, date of birth, post code and details of ethnicity and gender. Many people, including me, would have little concern about truly anonymous data being shared with organisations such as university research departments, but far fewer would be comfortable with the idea that insurers and drug companies would be able to apply to the Health and Social Care Information Centre to get access to such sensitive information.

Firms will have to pay to extract the information, and some of the personal identifiers will be removed—but not enough to make it completely anonymous. That is a matter of concern to many, including, I assume, some hon. Members on the other side of the Committee. There is a risk that patients could be re-identified because insurers, pharmaceutical companies and other health sector companies have their own medical databases, which could be matched against the records in question.

If the information is used for commercial purposes, that could lead to insurers discriminating against customers, or pharmaceutical companies marketing their own products at people they know suffer from a condition. Furthermore, it cannot be guaranteed that such sensitive information would be secure in the hands of private companies. It could be targeted by hackers or be leaked for commercial gain. Many people would not want to share such information with pharmaceutical companies and insurers. It seems contentious that the Government should legislate to do that on the public’s behalf.

I served on the Committee on the Health and Social Care Act 2012, and I remember the big debate about setting up the arrangements under that Act. Ministers—a different team, admittedly—gave the Committee cast iron guarantees that what I have described would not happen, and that all the data would be made anonymous. It is a matter of concern that that will not happen with the provisions we are considering.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

It is important to make it clear at the outset that we are talking about the Health Research Authority and not care.data. The Opposition have in discussion perhaps inadvertently conflated the issue with ethical research and relevant committee functions. I shall give a little reassurance on some of the care.data information, but will not be drawn into wider discussion, which might be out of order. I am sure that there will be more general opportunities to discuss the issue in the House, which would be a more appropriate place.

There are strict rules about what information the Health and Social Care Information Centre can release to the NHS and outside organisations. Anonymised information does not identify individuals or small numbers of patients with rare characteristics or diseases. Potentially identifiable patient information, which is information about individual patients, but does not contain any identifiers, is never published.

There are strict controls about the release of potentially identifiable information; for example, that type of information would only ever be released to approved organisations for approved purposes, and there must be a legal contract in place, with penalties for any misuse of information. There are very strict criteria in place. People, as we know, can opt out from that care.data scheme and it is not to be conflated with this clause that we are discussing about the HRA. I will give way once because I do not wish to try your patience, Mr Bayley, by deviating from discussions about this Bill.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I do not think that this is deviating from the Bill. Will the Minister confirm that this is transferring responsibility for safeguarding confidentiality of patient data from the Secretary of State for Health, an elected representative, to a health research authority, a non-elected quango?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I will come on to talk specifically about the HRA clause now, which may be useful, but it is important to point out that in this debate there has been considerable conflation of the care.data discussion, which is completely separate to this debate and the one that we are having about the Health Research Authority. It is worth talking first of all about the role of research. In all aspects of health care, research is perhaps the area with the most stringent and strictest criteria about protecting patients’ interests. That is undoubtedly the case. We also recognise that sometimes there are variable practices across different health care and NHS organisations that seek to engage in research. This Bill is about drawing that together by streamlining the processes but protecting those existing ethical safeguards that are in place for patient confidentiality.

Debbie Abrahams rose—

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I will address the hon. Lady’s point in one moment. I will not let her try the patience of the Committee by trying to deviate discussions to the care.data discussion, which are not directly relevant to this clause.

Research has a vital role in improving both the health and wealth of our nation and there are occasions when medical research requires the use of identifiable patient information and when it is not practical to obtain consent, but that happens only in very rare circumstances. For example, the research study may require access to identifiable patient data to allow linkages between different data sets where the cohort is too large for consent; this would require time-limited access to identifiable information where gaining the consent of a large retrospective cohort would not be feasible and would more require more identifiable data that would be necessary for linkages.

The Health Service (Control of Patient Information) Regulations 2002, which continue to have effect under section 251 of the NHS Act 2006, make provision for approval to set aside the common law duty of confidentiality to omit disclosure of confidential information for medical research purposes, where it is not possible to use anonymous information and where seeking consent is not practical. There are strong safeguards put in place by the previous Government—and these are the previous Government’s safeguards to protect patient information from being passed on. I will give way one more time.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

The Minister still has not answered my question. This clause is about transferring the responsibility for safeguarding confidentiality of patient data from the Secretary of State, an elected Member of this House, to an unelected quango, the Health Research Authority.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I will come on to that point. I fail to see where the Secretary of State being involved in the process offers any necessary additional safeguards to the process. The process and ethics of medical research, and the ethics committees that have been set up, have rigorous safeguards in place. We have a similar process in place, for example, in the Human Fertilisation and Embryology Authority. There are very rigorous safeguards in place to protect patient confidentiality, to make sure that not only is confidentiality protected but that research is facilitated in the right way and patients are protected. Similar processes exist in many other areas of health care, but if hon. Members think that it is right that politicians should be safeguarding ethics and rights in health care, they should think again.

Jamie Reed (Labour, Copeland)

The point is about accountability, it is not about safeguarding. Will he address the point made by my hon. Friend the Member for Oldham East and Saddleworth about accountability?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The Secretary of State has direct responsibility for special health authorities and ultimate responsibility for all arm’s length bodies of the NHS in some way, shape or form, depending on whether it is through the accountability framework of NHS England, or HEE. It is about that day-to-day ability to interfere in the process—it is important that we see less political interference, and we see that in the clauses on the CQC. We believe that, as far as possible, these processes should be independent from political interference. We need to facilitate good research and make sure that we have strong safeguards to protect the public in place, as we always have in research. Those safeguards should be even stronger when it comes to ethical research and clinical trials. Safeguards around the HRA are very strong, as strong as they would have been and were under the previous Government’s legislation.

Jamie Reed (Labour, Copeland)

I am intrigued. Can the Minister give an example—there may be one; this is a genuine question—of where there has been political interference in medical research programmes?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

When we talk about political interference in the health service, we know from evidence that has been given that, in cases such as the Mid Staffordshire crisis, there was political involvement in decisions to release health care information which was not for the benefit of the health service. Particularly with issues to do with patient confidentiality, the Secretary of State of course has oversight of the health service, but the day-to-day decision making should be removed from the political process. In practical reality, that is what happens.

Jamie Reed (Labour, Copeland)

The answer is no.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I gave the example of the Mid Staffordshire crisis, where political interference affected patients.

Hugh Bayley (Labour, York Central)

Order. I think it is better to use examples that are related to commissioning approval or non-approval, giving ethics approval or in relation to research.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I made the point already that the system as set up by the previous Government, with the involvement of the Secretary of State in overseeing the system and the research process generally, works very well. This further crystallises the independence of the HRA as a non-departmental body and is welcomed by the research sector. That is a good thing as it will broaden the independence of that group. Be it in the HRA or the CQC, we do not want day-to-day political interference, or the potential for that interference in the health service. That has been to the detriment of the health service with the CQC in the past. There is, of course, the potential for that to happen elsewhere and that would not be good. The Opposition have consistently raised concerns about patient-identifiable data, but can they give me an example today of a patient who has had his confidentiality directly breached through the research processes that they put in place and whose independence we are strengthening in the Bill? I challenge them to do that because I think the answer will be no. I am also happy if they want to raise examples with me in writing.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I suggest a scenario in which patient data are sold to an insurer and through that a patient is denied insurance. Who would be held to account?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

Again, the hon. Lady tries to conflate this with broader issues to do with research data. This is to do with the ethical approval of research, which is governed by very strict criteria put in place by the previous Government. If she has concerns, she should perhaps raise them with former Ministers who put those criteria in the legislation. I do not have concerns about the rules that were put in place by the previous Government. I think they are very robust. We are strengthening those rules by making sure that the system is even more independent and is protected from any potential political interference.

Clause 115 makes a number of consequential amendments to these regulations to transfer the Secretary of State’s power to approve the processing of confidential patient information for medical research purposes to the HRA, which is best placed to protect and promote the interests of patients and the public. No substantive changes are being made at all to the safeguards around the processing of confidential patient information, and the amendments ensure that the HRA cannot give approval for processing of confidential patient information unless a research ethics committee has approved the medical research concerned.

Sarah Newton (Conservative, Truro and Falmouth)

I want to draw the Committee’s attention to the excellent work that the Science and Technology Committee did on this, which I referred to earlier. It has four Labour members, including a Labour chair, and warmly welcomed the HRA and the Government’s approach to the regulation of research in these proposals.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

That is an important point. Rather than trying to throw up political smoke about the issues, that Committee took a consistent view, looked at the good legislation passed by the previous Government to protect the public and patient confidentiality, and recognised the importance of a more streamlined process for the transfer of information, and for medical ethics and research.

That is exactly what the relevant clauses do. They were broadly welcomed in pre-legislative scrutiny by my right hon. Friend the Member for Sutton and Cheam and his Committee, and in the House of Lords, with the scrutiny of many medical and research experts. They were also broadly given a strong welcome by the Science and Technology Committee, as my hon. Friend the Member for Truro and Falmouth mentioned.

The clauses are good and I make no apology for removing the potential for political interference from the process. We already have a robust way of protecting patient confidentiality with the current medical research ethics system and the Health Research Authority, and the Opposition were unable to give one example of data being used inappropriately against the wishes of the patient or against the contract. It is a false debate and a straw man, and it has the potential to put short-term politics in the way of doing the right thing and making the HRA’s role more independent.

Grahame Morris (Labour, Easington)

Does the Minister not see the danger? It is all very well waving the blue duster and talking about political interference, but he has pointed out the law of unintended consequences before. The present system works very well, but data have gone missing on occasion. I can think of several occasions that have caused considerable embarrassment. Patient data are highly sensitive, and there would be commercial advantage for drug companies and others in acquiring it.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The safeguards to protect patient data are just as robust as they ever were. The hon. Gentleman cannot, as he said, give an example of the safeguards not working so far. [ Interruption. ] He has just said that, so I am using his own argument against him. The safeguards will be just as robust as they ever were. That is clear and he has accepted it.

We have experienced the potential for political involvement in decisions; we saw it with the Care Quality Commission under the previous Government in the Mid Staffordshire crisis, when advice was not taken and concerns about health care failures were not raised. We do not want political interference in decisions about the health service or research decisions. We accept the strong and rigid safeguards laid down by the previous Government to protect patients and research.

The main issue is making sure that we have an independent system with robust, strong safeguards for patients and to protect the public, and the clauses provide that. Nothing would be added by a direct mention of the Secretary of State in the clause. If things go wrong with the health service he has an overall duty to step in if required; but because safeguards have worked so far, there is no need to do that. The clauses are good, and they will protect and enhance research.

Clause 118 - Powers of administrator etc.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment 151, in clause 118, page 101, line 31, at end insert—

‘(A1) In section 65H of the National Health Service Act 2006 (Chapter 5A of Part 2: consultation requirements), in subsection (7) after “Secretary of State;”, insert—

“(c) any overview and scrutiny committees in whose area the affected trusts have hospitals, establishments or facilities; and”

(A2) In section 65H of that Act (consultation requirements), in subsection (8) leave out

“(a) an overview and scrutiny committee of any authority to which section 244 applies;”.’.

Hugh Bayley (Labour, York Central)

With this it will be convenient to discuss the following:

Amendment 153, in clause 118, page 101, line 31, at end insert—

‘(A3) In section 65H of that Act (consultation requirements), at the end of subsection (4) insert—

( ) The Trust Special Administrator must hold at least one meeting with overview and scrutiny committees in whose area the affected trusts have hospitals, establishments or facilities.”.’.

Amendment 170, in clause 118, page 101, line 31, at end insert—

‘(A4) In section 65KB of the National Health Service Act 2006 (Secretary of State’s response to regulator’s decision), after paragraph (1)(b), insert—

“(ba) that in the discharge of its functions the trust special administrator has reasonably sought and considered responses from any affected trusts, staff of any affected trusts and such persons as the trust special administrator may recognise as representing staff of any affected trust, and any person to which an affected trust provides goods or services under this Act that would be affected by the action recommended in the draft report.”.’.

Government amendments 135 to 138.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

We move on to another subject that, I am sure, will not prove controversial. I say that with a sense of irony as I suspect it will be exactly the opposite. The trust special administrator regime has been controversial since it was first proposed in the Health Act 2009. It is an area where we come into direct conflict between the legitimate interests of the general public to be fully involved in decisions that shape and affect their health care, and the scenario in which, as a very last resort, actions are needed to protect the public’s interest by maintaining a continuity of service for an organisation that is financially unable to operate. That is what the clause seeks to develop further—because the clause is not the beginning of this story of trust special administration and its power to intervene in the event of an organisation’s being under severe financial pressure and in sustained financial difficulty. It is a consequence of the recognition by successive Governments that there needed to be a mechanism in place.

The clause amends the trust special administrator regime that was set out in the previous Government’s 2009 Act. The aim was good. As I said, it was to protect the public’s interest through maintaining continuity of health services. The trust special administrator regime was there for rare cases, and Ministers in the previous Government emphasised that it was to deal with rare and unusual circumstances. I hope that the Minister will confirm today that that remains the underlying policy intention. It concerns those organisations—the NHS trusts and foundations trusts—that find themselves at financial breaking point. It is, by definition—at least, I hope it will continue to be by definition—very much a last resort after all other steps have been taken. The amendments explore what that might mean in practice.

The 2009 Act sets out the process for appointing administrators and how they do their job. It has been a given now for some years. The Act was designed to ensure that speed would be of the essence when making recommendations to secure health care for local people. However, it had a flaw, which was dramatically exposed in the court case regarding the role of the special administrator in Lewisham.

The way in which the trust special administrator regime was set up in the 2009 Act took an entirely institutional view. It looked at individual trusts as though they were islands, but we all know that a local hospital is part of a complex web of relationships and services. It is an interdependent organisation. It does not stand on its own, and sometimes financial difficulties are not caused by its actions, but by those of others in the local health economy. As the Government make progress on their agenda for integration, those interdependencies will become even more profound and important. If we see the emergence of integrated care organisations, that will be even more profound in terms of understanding those interdependencies. That is recognised in the clause, but the Government amendments take it further, and that is welcome.

The Government amendments—I look forward to the Minister’s setting this out in more detail—would ensure that the administrator, once appointed, had to engage with and consult affected areas and trusts. That picks up the point that trusts are not islands, but interdependent. It is right to ensure that those who could be affected by the administrator’s recommendations have their say. The amendments cover involving staff as well as those who manage and lead the organisations. However welcome that is, it still leaves some people on the outside, looking through the window, wondering whether they are going to be let into the process. Dealing with that is the role of local authorities as elected representatives of their area. They, particularly local authority members who are involved in health overview and scrutiny, can use their insight to contribute to the administrator’s work. It seems odd that the original provisions in the 2009 Act left it to the Secretary of State’s discretion to decide whether overview and scrutiny committees should be involved in the process.

Amendments 151 and 153 ask the Government to remove the Secretary of State’s discretion and make it a requirement that overview and scrutiny committees, like other health organisations in the area, are consulted and engaged with during the work of the special trust administrator.

I also hope that the Minister will say more about the obligations that apply to the special trust administrator on public engagement and involvement. The quality of the engagement at this last resort stage is very important in trying, to some extent, to mitigate the sense of alienation that the public will have about a process that they feel is taking power away from them. It is very important that that is clear and I hope the Minister will say something about that.

Secondly, in the Health and Social Care Act 2012, we debated at length whether there should be a duty on the Secretary of State to respect the autonomy of NHS organisations. The 2012 Act requires the Secretary of State to have regard to his obligation to step back and allow organisations in the NHS empowered to do certain things, to do so unmolested by him on a day-to-day basis. That is a good idea, which needs to be thought through in the context of trust special administration. Will the Minister say how the Secretary of State, in taking a recommendation to start a trust special administration process, takes into account his duty on autonomy under section 5 of the 2012 Act?

Amendment 170 relates to some comments made by the NHS Confederation and the Foundation Trust Network. They are calling on the Department and, I suspect, by extension NHS England, to have a clearer strategy for stepping in ahead of the need to trigger the unsustainable provider regime—the missing piece of this puzzle. Surely that involves making sure that, to avoid the need to trigger a trust special administration regime, there is good quality engagement with all the stakeholders—all those in the local community who have an interest in the future of health care for their area. That is not simply a box-ticking exercise or about paying lip service.

When we look at research on public engagement on commissioning and reconfiguration decisions, there are few examples of world class change management in the NHS. The example that is often cited is stroke care changes in London, but when one looks for other examples, they are few and far between. The NHS does not do this very well very often. Stroke care is an example where it did it very well. It brought stakeholders with it and explained why the changes were necessary, and that went through remarkably peaceably, considering the level of change that was taking place.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I do not want to test the Committee’s patience, but could that be something to do with the National Institute for Health and Clinical Excellence intervention committee not meeting for three years, so that there has not been the opportunity to look at evidence-based policy, and the fact that so little research money has been spent on health systems approaches?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That may or may not be part of it, but there is also a flaw in the way in which we train those who manage and lead our NHS organisations. We do not train for patient involvement and engagement. It is learnt on the job and sometimes bad habits are transferred from one organisation to another as a consequence. That has to change and I hope it is one of the things that Health Education England can address. It seems to be a very important key that can unlock much better dialogue between the public and the NHS about how their NHS is organised. That will be necessary, because we will see change in our health services. If we are to dissolve boundaries between organisations and integrate health and social care, it will require changes.

Some of those changes need good, world class change management to help people through them and help them see the benefits that can make a difference to them and their families. That is why I also hope that the Minister will respond to amendment 170. It simply says, on behalf of the Foundation Trust Network, that, when the Secretary of State receives the report from the TSA, he should demonstrate that he is satisfied that the requisite amount of consultation has taken place and that the views of those affected have been sought and considered.

Will the Minister confirm that, as under the previous Government, the powers are a last resort? Will he spell out the obligations for public engagement and consultation? Triggering those powers would surely be an admission not just of the financial failure of an individual organisation, but of the wider system, if the situation had been spotted but the necessary action had not been taken. That would be a failure for all in the system. Surely prevention is better than having to sort out these things in a rush. That is why engaging the public meaningfully from the outset, not simply as lip service, is key to securing consent to change.

I hope that my amendments prompt a debate on those points, and that the Minister can at least accept that overview and scrutiny committees should be able to bring their expertise into the process, ensuring better outcomes.

Hugh Bayley (Labour, York Central)

I have been asked for a stand part debate on the clause. I am inclined to grant that as long as people in their stand part speeches raise matters that have not been previously covered on the amendments. They will have to make that case when they speak. It therefore makes sense to invite the Minister to speak about his amendments. Then we will have a wider debate, if the Committee desires, on the amendments, reach a decision on them and move on to stand part.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I fully agree with the sentiments and points made by my right hon. Friend the Member for Sutton and Cheam. The TSA process is one of last resort that also needs to respond and recognise—and will recognise as a result of Government amendments—that a foundation trust does not operate in isolation. It is part of a broader and wider health care economy. He described it as a complex web of interdependent relationships. That was a good way to put it and that is the context in which we have to view the TSA regime, when it is triggered as a last resort to deal with quality failure or sustainability issues at a trust or foundation trust.

Amendment 135 is a minor and technical amendment that would ensure that the provision in clause 118 to extend commissioner sign-off for the recommendations of a trust special administrator at a foundation trust to include commissioners of other affected trusts can be commenced following Royal Assent.

Amendment 136 would further improve the changes we are making to strengthen the regime under clause 118. It relates to the administrator’s statutory consultation on the draft recommendations to secure sustainable services in a local health system. I remind the Committee that Lord Darzi told the House of Lords during the Committee stage of the 2009 Act that the regime was intended to ensure that the

“final decision on the future of services is informed by an independent process involving evidence-based judgments, underpinned by accountability to the public and patients”.—[Official Report, House of Lords, 5 March 2009; Vol. 708, c. GC336.]

The amendment would ensure that decisions about affected trusts were soundly based. It would require an administrator at an NHS trust or foundation trust to consult other NHS provider trusts, their staff and commissioners who may be affected by the draft recommendations. The amendment would complement the extended scope of an administrator under clause 118. Amendments 137 and 138 are technical and consequential on amendment 136.

Representations made to the Government have shown a clear expectation that an express wider power for an administrator should be matched by an express wider consultation requirement. We are therefore responding positively to a strong view from key stakeholders who represent NHS providers—some of those stakeholders were outlined in my right hon. Friend’s speech—who believe it is logical and necessary to widen the scope of a TSA remit. The amendment is a proportionate extension of the current consultation requirements. It would ensure that an administrator’s final recommendations are formed by a full evidence base and deep understanding of the issues facing the entire local health system and local health economy. It would help the administrator to recommend the right long-term solution.

Amendments 151 and 153 would require a TSA, during the consultation, to receive a written response and to hold at least one meeting with any overview and scrutiny committee in whose area any provider trust affected by the administrator’s proposals has hospitals, establishments or facilities. I agree entirely with the principle that a TSA should consult relevant overview and scrutiny committees. I am sympathetic to the desire for such requirements, but we believe that it is important not to have an entirely prescriptive process in statute about whom an administrator must consult, beyond certain legal minimum requirements. It is right that current minimum legal requirements for consultation include consulting the public.

The National Health Service Act 2006 already allows anyone with an interest to provide views on the administrator’s proposals and for the administrator to hold at least one meeting to seek responses from anyone who wishes to attend. The legislation does not confine or constrain that requirement for public consultation. Equally, it is right that minimum consultation requirements include staff of the failing trust and its commissioners. Our amendments to extend the minimum requirements to other provider trusts, their staff and commissioners are, in our view, important in complementing the extended scope of an administrator’s remit. I believe that my right hon. Friend the Member for Sutton and Cheam strongly supported that point in his remarks. Beyond minimum legal requirements and the ability of the Secretary of State and Monitor to direct an administrator to whom else they should consult, statutory guidance from the Secretary of State and Monitor is clear that administrators must be able to use their judgement in choosing who else to consult to ensure meaningful and effective engagement. In practice, it is hard to conceive of an administrator not wanting to engage with the local authority, given the importance of developing the best possible proposals.

It might be helpful if I quote from paragraph 53 of the statutory guidance issued by the Secretary of State to administrators appointed to NHS trusts:

“legal requirements are a minimum and it is expected that Trust Special Administrators will use their judgement in choosing to consult other organisations or persons…Trust Special Adminstrators must exercise discretion about who they should consult to ensure there is…effective engagement during…consultation on their draft report.”

An annex to the guidance suggests that relevant overview and scrutiny committees, including joint overview and scrutiny committees, are among the organisations and individuals an administrator might wish to consult. Paragraph 84 of the statutory guidance issued by Monitor to foundation trusts is almost identical.

I hope that my right hon. Friend finds my remarks somewhat reassuring. I would like to reassure him further by saying that we will look again at the issue and our statutory guidance, to convey in clear terms the importance of local authority involvement in any special administration process. We will ask Monitor to do likewise with its statutory guidance for administrators at foundation trusts. I further reassure him that I am sympathetic to the arguments he made about overview and scrutiny committees. We will reflect on what has been said here today, in advance of Report.

Grahame Morris (Labour, Easington)

The Minister is keen on examples, so will be reflect on what happened at Lewisham? He talks about altering the statutory guidance— he refers to paragraph 53. If there had been one meeting of the overview and scrutiny committee, even involving neighbouring authorities, does he think that would have been enough to assuage public concern and win back public trust?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

In discussing the amendments, I will not discuss issues of the past. The Bill is not retrospective, but prospective. It will ensure that we improve the trust special administration regime, which the previous Government established in 2009, and make it more fit for purpose. Our amendments would provide for a broader duty of consultation, with broader duties for commissioners and broader consultation with wider affected providers. The hon. Member for Easington may have missed the remarks I made immediately before I gave way, but I have already committed to looking at the issue of overview and scrutiny committees before Report.

Liz Kendall (Labour, Leicester West)

Is the Minister aware that Andy McKeon, the new chief executive of the Nuffield Trust, says that the Minister’s amendments inviting the public to give their views are not enough? He says that, even with the changes that the Government propose, the time scales are far too curtailed and the standard rules on consultation should apply. I am sure that the Minister knows that Mr McKeon and the Nuffield Trust are pro-changes to hospital services where they can be shown to work, but they are very clear that full public consultation must take place, if a trust that is not failing gets drawn into the process of reconfiguration. That is what Mr McKeon says; what is the Minister’s response?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The hon. Lady says that there is a very tightly curtailed timetable. We have actually extended the consultation time for the TSA process under clause 118. I do not want to return to the debates that we had on clauses 82 and 83 about single failure regime, but I am sure the hon. Lady recognises that, when we are dealing with quality failure of trusts, it is important that action is taken quickly to protect patients and the public.

It is not acceptable to put more delays in the system. We are increasing the amount of consultation in this process by a number of weeks, but the process in its entirety can take between six and eight months to go through. That is a fairly lengthy process and a lot of consideration is done. I am sure that the hon. Lady would not want to endanger patients’ and the public’s lives by extending it further. That is the risk if we make these processes too lengthy.

Liz Kendall (Labour, Leicester West)

If a trust is not failing, but has been brought in to look at how the whole health economy is dealt with, why should there not be the same standard process and standard length of time for a consultation?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The previous Government set out a strong and robust process in the 2009 Act. Our amendments extend the timetable for the TSA process and the consultation to affected trusts and commissioners. We are already consulting the public. There is a very robust system in place that was envisaged originally by the right hon. Member for Leigh (Andy Burnham), so I am surprised that the hon. Lady is taking exception to the process. We recognise that there were deficiencies in the 2009 legislation. That is why we have extended the scope for consultation to additional providers, to other affected providers and to additional commissioners. We have also made sure that there is proper engagement with the public and we are looking at the issues that my right hon. Friend the Member for Sutton and Cheam raised about the wider health and social care economies, on which health overview and scrutiny committees had a very strong view.

Liz Kendall (Labour, Leicester West)

Will the Minister confirm that the same standard period of consultation does not apply to a trust that has been brought into the reconfiguration and has not been failing? What is the justification for less time? I am not talking about the Minister extending the period from the original proposal. The Government have made a move in their amendments. Why should the period be any shorter than the standard process and rules for consultation that apply to other trusts?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

This is a process of last resort in dealing with deficiencies in the health system. The first process of dealing with failures in quality or financial sustainability is—

Liz Kendall (Labour, Leicester West)

The trust is not failing.

Hugh Bayley (Labour, York Central)

Order. The hon. Lady is not listening to responses. It is possible for her to make a speech about the Minister’s amendments or, indeed, those of the right hon. Member for Sutton and Cheam, later in proceedings.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The hon. Lady is misinterpreting my points—I am sure not wilfully—and has perhaps inadvertently misled herself in her interventions. It is clear that there is a process for when a serious failure of sustainability of the trust or a quality failure occurs. That is an important step that we included through triggering the TSA regime in clauses that we discussed earlier. It is important that that process is dealt with relatively rapidly. Even so, we are extending the process for broad consultation. However, the first step when there are concerns about quality in a trust—when the CQC issues a warning notice or raises concerns—is the one taken by this and the previous Government: for discussions to take place with local commissioners about the quality of services at that trust. That is the first step in dealing with concerns about quality in a trust. There is also strong oversight from Monitor and the Trust Development Authority to intervene and exercise their powers where appropriate when a trust has sustainability or financial problems.

Those are the first steps that will need to be taken. Part of the process, for example through the special measures criteria now being used, is about involving other trusts in the health care economy in helping facilitate solutions where appropriate. That happens every day, right here, right now. It is happening on the back of the Keogh review, thanks to what we have done on putting special measures in place for trusts. There is a comprehensive process that works well and takes into account the broader health economy. Sometimes, when things get to that extreme stage and other mechanisms have been exhausted, it is important that there is a TSA process, and that has broad consultation built into it.

Liz Kendall (Labour, Leicester West)

I will try once more. I am sure that the Minister is not wilfully misinterpreting my question. I am referring to a trust that has not failed on quality or finances, but has been brought into a process being used to deal with another trust that has failed on quality or finances. Why should the trust that has not failed be subject to less consultation than the standard public consultation process for those trusts that have?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

There is a point that the hon. Lady is not wishing to address. I took pains to explain the process as part of our discussions on clause 80 and again now. The TSA process is a last resort. Before that process is implemented, we expect all other measures and options to have been exhausted. There will be discussions with local commissioners if the CQC raised concerns about the trust. Those commissioners would work with that trust, and potentially others, to address those quality concerns.

Similarly, on the financial sustainability of trusts, we would expect commissioners, the TDA and Monitor where appropriate to work with the trust in question and more broadly across the health care economy. Those changes are at the heart of the Secretary of State’s approach to putting trusts in special measures. That is pairing trusts together where there are concerns and problems and taking that broader look at the health care economy. Implicitly, other health care trusts and providers are involved, as are other commissioners, in dealing with solutions at an early stage.

Then, if necessary, in extreme circumstances due to quality failure or other issues around financial sustainability, the TSA process is triggered. At that point there is a process for consultation again across the broader health economy, and that is relatively lengthy. The TSA will take that broad look across the health economy in accordance with our amendments. That is a robust process. However, when the TSA is triggered because things are so serious, we will get to a conclusion; if there are issues of patient care at stake, they will be dealt with quickly.

Grahame Morris (Labour, Easington)

The Minister is generous in giving way. Will he respond to a point arising from one of his remarks? He said the TSA would be an infrequent and rare occurrence. Are not 30% of non-foundation trusts and about 11% of foundation trusts forecasting that they will run a deficit for this financial year? This is a major change that may be very important if more and more trusts are forecasting deficits.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The hon. Gentleman may remember that the last time that trusts got into major deficit was when the hon. Member for Leicester West was a special adviser in the Department. [ Interruption. ] There is no point chuntering from a sedentary position. We are not in a position at the moment whereby we have changed in any way what the previous Government envisaged. The TSA process is a last resort, and because patients’ lives may be at risk, it cannot be an open-ended, incredibly lengthy process.

Even so, we have a robust process in place for broad consultation as part of the TSA regime. We have slightly extended the process of consultation to ensure that the views of other commissioners and providers are taken fully into account. For those reasons, we have made sure that we are putting a strengthened regime in place. It is about protecting people’s lives when there is a quality failure. I am sure the hon. Member for Easington would not want that to be an open-ended ticket; it needs to be resolved quickly.

Clause 118 - Powers of administrator etc

Hugh Bayley (Labour, York Central)

I remind the Committee that with this we are discussing the following:

Amendment 153, in clause 118, page 101, line 31, at end insert—

‘(A3) In section 65H of that Act (consultation requirements), at the end of subsection (4) insert—

( ) The Trust Special Administrator must hold at least one meeting with overview and scrutiny committees in whose area the affected trusts have hospitals, establishments or facilities.”.’.

Amendment 170, in clause 118, page 101, line 31, at end insert—

‘(A4) In section 65KB of the National Health Service Act 2006 (Secretary of State’s response to regulator’s decision), after paragraph (1)(b), insert—

“(ba) that in the discharge of its functions the trust special administrator has reasonably sought and considered responses from any affected trusts, staff of any affected trusts and such persons as the trust special administrator may recognise as representing staff of any affected trust, and any person to which an affected trust provides goods or services under this Act that would be affected by the action recommended in the draft report.”.’.

Government amendments 135 to 138

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

It is important to respond fully to the earlier discussion, although we were beginning to stray into a clause stand part discussion earlier when I was trying to respond to some of the points raised by my right hon. Friend the Member for Sutton and Cheam about his amendments.

Amendment 170 tabled would require the Secretary of State to decide if he was satisfied that an administrator appointed only to a foundation trust had reasonably sought and considered responses to their statutory consultation from all provider trusts, their staff and commissioners who may be affected by the administrator’s recommendations.

As we have already discussed, the consultation provides an important opportunity for the TSA to validate and improve on their draft proposals by formally consulting with all relevant stakeholders. They must have confidence in the outcome of the regime. The consultation process must therefore be credible. I would like to reiterate that it is in an administrator’s interest to consult widely and to make sure the perspectives and concerns of all those interested are heard. In the case of a foundation trust, if Monitor is satisfied with the administrator’s final report, it is forwarded to the Secretary of State who must already decide if the administrator has carried out the administration duties required of them by the 2006 Act. For the benefit of the Committee, the Act sets out the administration duties, including the duties imposed on the administrator under the legal regime in that Act, as well as any directions which may apply to the administrator and their terms of appointment.

Clause 118, as amended by the Government, would mean the Secretary of State must decide whether he is satisfied that all affected trusts, their staff and commissioners have been properly consulted and their views considered. If not, the TSA must amend the report to address his concerns. Furthermore, following ordinary principles in public law, the Secretary of State would expect to have assurance that the consultation has been conducted reasonably, and that responses had been adequately considered.

All administrators must attach to their final report a summary of all responses to their draft report which were received during their formal consultation. It will show how responses were given consideration. The final report is also published and laid before Parliament prior to the Secretary of State’s consideration in the case of a foundation trust or an NHS trust in administration. In the case of a foundation trust, the Secretary of State must decide whether he is satisfied the administration duties have been met. On that basis, we do not believe amendment 170 is necessary. I hope that my right hon. Friend feels able to withdraw his amendments.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister is setting out the reasons why I should withdraw amendment 170. I am grateful for his reassurances. For the benefit of the Committee and others, will he explain the intentions behind clause 118(3) and (5)? My reading of the explanatory notes suggests that a trust special administrator’s report will be subject to agreement by commissioners before it can be finalised and submitted to the Secretary of State. In other words, the implication is that local commissioners have some form of—I hate to use the word—veto. It would be useful to be clear about the role of commissioners with regard to subsections (3) and (5) and their agreement to a TSA appointment.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

My right hon. Friend is right. We will set out some clearer guidance on this once the Bill has received Royal Assent. It is an important part of the process of avoiding—one hopes—the TSA regime having to be invoked. More broadly, commissioner consultation is part of the process. How the final part will work will be further clarified through regulations.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

We may have drifted into the stand part debate, but the amendments try to explore how we can ensure, while the process of doing these things at some speed was necessarily established in the Health Act 2009, that the public interest is none the less being properly safeguarded. One of the ways in which that can be done is through ensuring that the overview and scrutiny committees in the affected area are recognised in the Bill as being one of the ways in which the special trust administrator discharges their obligations under the Bill.

I am grateful to the Minister for saying that the intention is to make that clear in statutory guidance, but I do not think that that will go sufficiently far to assuage the concerns that I, and I am sure other hon. Members, have received in representations. Will he continue, as I think he said he would in his remarks, to think about tabling something on Report? I intend to return to this matter at that time, so I hope that he will give that further thought.

In our discussions, the 2009 Act is relevant to understanding how the clause works and why my amendments are necessary. That Act gives the Secretary of State power to include or exclude overview and scrutiny committees. My amendments would undo what I think was a wrong decision then, which is something that, hopefully, the Government will want to put right. I welcome the reassurances and hope that, on Report, we can get to a final conclusion that includes those measures.

The hon. Member for Leicester West—she is not in her place at the moment, but I am sure she will be later—seemed to imply that she wanted to maintain the fiction that individual NHS trusts are islands of themselves and completely cut off from everything else. I know, however, that she is an arch advocate for integration. The destination that she wants to arrive at, which I think Government Members do too—where the boundaries become less relevant to the public’s experience of health care and it feels joined up because it is joined up—must mean that that fiction can no longer stand.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

Just to make it clear to my right hon. Friend, I have committed to taking away the overview and scrutiny role and looking at that further. I am sure that we will have conversations and come back to that on Report. To clarify, subsections (3) and (5), which he mentioned, relate to the foundation trust regime. The formal sign-off by clinical commissioning groups of drafts and final reports is extended to CCGs of affected trusts as part of our amendments. NHS England can agree in default of CCG agreement. For NHS trusts, there is a slightly different process, which is what I was talking about with the regulator. We will set that out in guidance to the TSA for trusts.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the Minister for giving that helpful clarification. Given that the shared endeavour of both sides of the Committee is to arrive at a world where all NHS trusts are foundation trusts—opinions about the pace at which that is to be achieved may differ, but that is the intention—it is clearly a welcome commitment that local clinical commissioning groups will have a significant say in and sign-off of recommendations for TSA reports. It is important that that is clear.

Norman Lamb (Liberal Democrat, North Norfolk)

I share my right hon. Friend’s view about the importance of a holistic approach to integrate health and care much more effectively. He mentioned the views that the shadow Minister expressed. Does he share my concern on behalf of Opposition Members that some of their comments may well come back to haunt them if they are ever back in Government and have to make rational decisions about joining up health and care systems?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister tempts me, but I will try to avoid goading the Opposition. That is a precept that I would have thought any party aspiring to Government should always keep in the back of its mind. The question is how deep in its mind that is buried. When I was on the Health and Social Care Bill Committee, it felt at times that it was buried very deeply, but I hope that it will be at the forefront of the Opposition’s thinking today.

To conclude, I want to underscore the responsibility of clinical commissioning groups to get things right first time with their local providers in order to ensure that the last-resort mechanism is not triggered in the first place. That must be the right course of action, and that is why we must safeguard, as far as we can, the autonomy of those bodies to act in the interests of their patients. That is also why the Department, NHS England, Monitor and the Trust Development Authority must be a bit clearer—indeed, some might argue a lot clearer—about the route and steps that would be taken before the process was triggered. As I said earlier, in the end, a lot turns on the quality of the public engagement. If it is perfunctory and simply intended to tick the boxes, it is no wonder that people man the barricades and oppose what is proposed; if it is inclusive and genuine, and hard decisions are still made, often that results in a better, more widely supported decision.

Sarah Newton (Conservative, Truro and Falmouth)

My right hon. Friend makes a really important point about ensuring that the whole of a local community is consulted widely because care will be affected as well as the health service. Does he feel that not only the local commissioning groups but the health and wellbeing boards have an important role in engagement? All the stakeholders, including people in the communities, must come together to plan the integrated health and care services in their area.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

My hon. Friend is right to raise that point. Health and wellbeing boards’ role as systems leaders at the local level must be reflected in the guidance that comes out, and I hope that the Minister will be able to say something about that. He has been very reassuring to us about the role that local authorities more generally should be allowed to play in such processes. Clearly, the health and wellbeing board is where all parts of health and social care and public health come together to try to ensure that in any locality we are delivering services that meet the needs of the population. By extension, it would be logical to ensure that health and wellbeing boards are consulted, and I would have thought it perverse for a trust special administrator not to seek to engage with them. My hon. Friend is absolutely right, but I hope that the Minister will confirm that at some point.

The debate has been a useful appetiser to what I suspect will be the main course: the clause stand part debate. It has revealed that the previous Government put in place improvements to the trust administration regime that would be brought into force by the Government’s amendments and those that I have tabled. I look forward to Report stage, when perhaps my amendments will be tabled in a technically correct form under the Minister’s name, but for now I beg to ask leave to withdraw the amendment.

Jamie Reed (Labour, Copeland)

With your permission, Mr Bayley, it is my understanding that the Committee may discuss clause 118 in real depth. I intend to do that and I am sure colleagues will also do so. For the benefit of the Committee, the Clerk, the Official Report and every Member of this House, I have written to Mr Speaker to express the view of every Opposition Member that this clause must be selected for discussion on the Floor of the House on Report.

Potentially more than any other clause in the Bill, Clause 118 is of direct relevance to every community represented by every Member of Parliament. It is essential that they are allowed to voice their opinions with regard to what is, in effect, a significant and profound policy change.

The first two sections of the Bill have been considered by the Committee so far with a degree of consensus, for the most part. That should encourage everyone who cares about health policy in our country. Our considerations so far have understood that we often have an shared analysis of the problems facing patients across the country, of the demographic challenges that we face and of the very real and present financial difficulties facing a health service that we all want to be—and believe to be capable of being—the best in the world.

Reaching this ambition is not an end point in itself, but providing the people of our country with the health services they deserve is. Our discussions have also shown that, even when we share the desire to achieve a particular outcome, we do not always necessarily agree on the policy means through which it should be delivered.

Both sides of the House share a clear commitment to improve adult social care in part 1 of the Bill. Some of the Bill builds on the very good work of the last Labour Government and we welcome that. Part 2 stems in part from the recommendations of Robert Francis QC and his two reports into Mid Staffs and the consequent work of Professors Don Berwick, Bruce Keogh and Tricia Hart, and my right hon. Friend the Member for Cynon Valley (Ann Clwyd). It is a genuine attempt to help to improve the regulatory environment and working culture of the NHS.

In many areas, the Bill does not go as far as the Opposition would like, nor does it follow the entirety of Robert Francis’s recommendations, but again it builds on the unprecedented work that the last Labour Government began with the first ever introduction of independent quality standards regulation to the NHS.

At this stage, it is evident to everyone that there is no regulatory silver bullet in any industry or practice, let alone the national health service. Regulation is an iterative process. If undertaken constructively and intelligently, it will get better and yield better results over time, but the notion that a new regulatory regime—any regulatory regime—is capable of solving overnight any and all problems in a system that is fundamentally based on the culture, behaviours and practices of 1.3 million people is completely flawed. Any claims to the contrary are knowingly false. That said, part 2 of the Bill again demonstrated a collective desire from all parties to solve the problems facing patients and the health service.

It is my sincere hope that we can maintain this spirit throughout part 3 of the Bill. To do so perhaps only requires the application of simple logic and an informed understanding of realities on the ground—outside Parliament—rather than anything as high-minded as a fundamental political rethink of clause 118.

At times during the consideration of the Bill, we have veered across a fairly broad landscape: the causes of the global financial crash; the challenges facing our economy; the right policy prescriptions with which to ensure economic growth and so on. We have also pondered the purpose of power—the progressive purpose at least—and more besides. I do not want to broaden those horizons any further. On the contrary, I would like to rein them in somewhat. But before I do that, I would like to talk about the notion of hospitals and hospital services in the everyday life of a community and in general public discourse. All of this is directly relevant to clause 118, its likely effect and the problem it seeks to address. I fear that a lack of understanding of that notion has contributed towards the mindset that resulted in clause 118.

I have touched on the huge disconnection between the public and politicians in our country throughout this Committee. In my view, this disconnection is more keenly felt in the forgotten Britain largely ignored by the political mainstream; in the towns people have heard of, but have never visited. These are peripheral areas and areas of market failure. They are both rural and urban, but not entirely one or the other. People who live in these areas feel almost entirely disconnected from the national political mainstream as presented to them by a wealthy, metropolitan media class. This is a political point, but it is not a party political point.

This situation did not arise overnight at some point in May 2010. The people in the communities I describe, in so far as they have faith in any politicians at all, will vote for all parties and they live in all parts of the country. For all the complex problems faced by areas of market failure, outside the major urban conurbations, daily life looks and feels very different in our de-industrialised towns, our often struggling rural villages and our smaller cities.

In many places, the community fabric is being destroyed and the very pillars of society and community are disappearing. The plight of the high street is well known. Local newspapers are struggling and disappearing in increasing numbers, stripping out local identity as a consequence. Town halls, courts and police stations—the very symbols of permanence, community strength and civic identity—are disappearing. The post office and the local school remain under the threat of closure or reorganisation. Public transport is usually not worthy of the name. Many local authorities can see a financial tsunami on the horizon and are unable to respond.

Very often in these communities—increasingly, in fact—health services, but hospitals in particular, are the remaining symbols of community and local society. They demonstrate to people that they and their community belong to a wider community and a wider society. They show people that they are not alone, that they are part of the nation, and that they are not only cared about, but cared for. If the NHS is our national religion—and I confess that I believe it is—our hospitals are its churches, its synagogues, its mosques and its temples. They have a unique place in our national life; they are seen as a protector and a provider. The NHS is now part of our shared national identity, but that identity is not just notional; it is physical. In the same way that the very existence of the NHS is not just about health care, but about a fairer, better, more egalitarian society, so the ideas that underpin the NHS are more than ephemeral, noble notions. They are notions made real by the National Health Service Act 1946, but they are similarly notions given life by the physical existence of hospitals, GP surgeries, dentists, walk-in centres and more.

Even as we discuss failure regimes, regulatory practice, staffing ratios, duties of candour and a comprehensive desire to improve care failings where they occur, the feeling at large is one of protection towards the NHS, its staff and its institutions.

Andrew Griffiths (Conservative, Burton)

I am struck by the hon. Gentleman’s comment on the loss of services and particularly the loss of post offices. I gently remind him that under his Government, 2,500 post offices closed. Under this Government, none have.

Jamie Reed (Labour, Copeland)

I genuinely admire the hon. Gentleman’s chutzpah. I remember being in this House when we voted through a £1.3 billion subsidy for post offices that his party opposed. If he was not here at the time, perhaps he can consult the official record.

Even as we discuss failure regimes—failures are still happening a long time after the publication of Robert Francis’s second report—those feelings still endure. In areas of market failure, I would expect that they are growing rapidly. All that makes it increasingly difficult for Governments of any colour, in times of economic sunshine or despair, to achieve change in the NHS, particularly with regard to hospital closures, service reductions or hospital service reconfigurations.

Clause 118 has its genesis in the Government’s failure to understand that and will have the effect of compounding the difficulties that I mentioned with achieving the reform that the NHS needs. The clause may be irredeemable. As it stands, before I even begin to address the principles contained in it, we need to address its practical effect. The clause will make service reform and clinical reconfiguration more, not less, difficult. It will result in contested cases taking longer to resolve than is currently the case. It will increase costs, not reduce them, and it will disengage patients, medical practitioners and the public in any affected community.

It is critical to understand the Opposition’s view on change in the way our hospitals work and the services that they provide. We all recognise the need for stability and predictability in the health service. We appreciate that the nature and pace of change needs to be driven by local populations, clinical commissioners and patients. If change is not owned in that way, top-down, enforced change is likely to have a detrimental effect. That was one of our principal concerns about the Health and Social Care Act 2012. Regrettably, our reservations have been borne out by the experience of the country and the service to date. In January last year, the shadow Secretary of State gave a speech to the King’s Fund that introduced the concept of whole-person care and the need for hospital reform to facilitate that. The Daily Telegraph called it the most important speech by a politician that year.

We are clear about the need to accommodate changes in the health service where those changes would lead to better clinical outcomes. There can be no question about that. The King’s Fund was right to call for

“fundamental change in the way that the NHS as a whole thinks about the role and priorities of the Acute General Hospital and how it is run.”

In that regard, I point colleagues towards the Future Hospital Commission, which the Royal College of Physicians established, and its report, “Future hospital: caring for medical patients”. Its report stated:

“The need for change is clear. The time has come to take action. Those working in the NHS have a responsibility to lead this change, supported by the organisations that represent them and empowered by national policy-makers. Organisations and professionals involved in health and social care—including doctors, nurses, politicians, hospitals and national bodies—must be prepared to make difficult decisions and implement radical change where this will improve patient care.”

However, there is widespread concern about clause 118, the Government intentions behind it and its likely application.

The Royal College of Nursing has warned:

“The TSA must not become the mechanism of choice to routinely reorganise structures.”

Like us, it would

“like to see reconfiguration decisions being clinically led so that voices of clinicians are pivotal when shaping major service change.”

The RCN warns that changes are inevitable, because of “financial constraints”, but the most important point of all—one to which I will return—is that

“it is important that politicians and trusts have an honest conversation with the public and clinicians about these savings and how they will be made.”

The NHS Confederation, which we heard from earlier, makes a similar point about crisis-driven change of services, notwithstanding the Government amendments, stating that

“where crisis driven change is required a clear failure regime which allows for proper engagement with the local community is essential.”

Like us, it believes that it is still

“unclear if, when the Administrator makes recommendations relating to a nearby trust not in administration, they must consult with the provider, commissioners and local communities affected by these recommendations.”

Crucially, going to the heart of our objection to the clause, the NHS Confederation also warns:

“It is crucial the public recognises the urgent need for health services to change in order to meet patients’ changing needs and remain sustainable.”

We agree with that. The confederation goes further and calls for

“politicians to create the space for the change needed”

and for

“local NHS organisations to be ready to make these changes.”

The clause could not be more antagonistic to that ambition. Back-door reorganisation is the antithesis of that very conversation. It is not and can never be an honest process. It is bound to hamper the necessary work of reform. The confederation states:

“It is vital that…the NHS is in a position to get on with purposeful, planned change that addresses the real challenges the health service faces.”

Clause 118 is the Government’s reaction to an incredibly telling and significant defeat in the courts. Its purpose is to extend the ability of TSAs to close, remove or reconfigure hospital services in perfectly good, high-performing hospitals, such as Lewisham, which are adjacent to hospitals in difficulty. That is its purpose. That is the stated aim of this legislation, in response to a High Court judge who told the Government in no uncertain terms that the TSA regime should not be used for such a purpose and that that was never Parliament’s intention. If that is the purpose, what is the plan?

Norman Lamb (Liberal Democrat, North Norfolk)

I am listening carefully to the hon. Gentleman. Is his conclusion that one should look at the one hospital in isolation and not at the wider picture, or take a holistic view as described by my right hon. Friend the Member for Sutton and Cheam in his earlier contribution?

Jamie Reed (Labour, Copeland)

That is not my contention. If the contrary is the Government’s intention, clause 118 as drafted will not meet those concerns or enable that kind of working practice. It is not fit for that purpose.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The hon. Gentleman should also reflect on the fact that the original TSA regime, which we are modifying, was set up under the previous Government. If he has such concerns, is he also concerned about the approach taken by the previous Government?

Jamie Reed (Labour, Copeland)

No, I am not. The Minister seeks deliberately to confuse the purpose of the TSA under the 2009 Act and, frankly, the judgment of the Court of Appeal and that of the High Court with regard to the Government’s case on Lewisham. I will get to those points in due course.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

We all accept that any case of judgment is exercised under statute and that public organisations are subject to judicial review. That process always has to be there. The fundamental mechanisms that were being used, however, were enacted by the previous Government. To make the process clearer, it is necessary for the mechanisms to be clarified and wider public engagement strengthened. Does he accept that he is criticising the previous Government’s provisions on TSA in the 2009 Act?

Jamie Reed (Labour, Copeland)

I do not accept that, but I give credit to the Minister for dancing on an increasingly small, burning platform. I admire that.

Grahame Morris (Labour, Easington)

Is this not a “Four legs good, two legs better” argument? We remember the arguments from the Government Benches about raising the cap on private patient work, saying that this was a natural extension of what was done under the previous Government. Yet they have raised the cap to more than half of possible income. It is a quantum change and this clause is a fundamental diversion from what Labour was proposing.

Jamie Reed (Labour, Copeland)

I am grateful to my hon. Friend. This is, of course, a fundamental change. I will explain just how deep and significant a change it is in due course.

When the TSA was introduced in 2009, the scope of its powers—this will please the Minister—was precisely drafted. Mr Justice Silber repeatedly referred to that during the Government’s defeat over Lewisham at the High Court. Indeed, the Government were defeated in court precisely because they sought to use the TSA for a purpose for which it was never intended; namely, health service reorganisation with regard to another trust to which it had not been appointed.

We all know the challenges facing the NHS. The economics of austerity combined with an ageing population, complex and multiple lifetime conditions and ever-growing demand make it hard to achieve change. We know that more than 20 hospital trusts are in a serious and deteriorating financial position. We know that the likelihood is that there are many more on the way. We know, too, that there is a clinical challenge. So, I repeat, what is the plan? The QED of clause 118 is that the plan is to embark on a series of hospital service closures and reconfigurations the like of which this country has never seen. Clause 118 is, in effect, the political equivalent of Al Capone’s tax return.

It is obviously not my place to offer political advice to any party other than my own, but clause 118 is a hand grenade with the pin removed. The Government should throw it away and run for cover as quickly as they possibly can. The Bill can and should stand without this clause. It is not wise to remove barnacles from the boat with high explosives.

Norman Lamb (Liberal Democrat, North Norfolk)

What a moment to intervene. That was a wonderful description. I seek to understand better, genuinely, the case that the hon. Gentleman is making. There has already been an exchange about what the previous Government enacted, and he has said that the Court of Appeal made its judgment on that, but is he saying that, in those circumstances where his Government’s legislation provided for a route—which, of course, is now added to in terms of quality failure—one should look at a hospital in isolation? Is that the point he is making?

Jamie Reed (Labour, Copeland)

That is not and never was the point. The point is that, in those circumstances, other routes are available, both through successive Secretaries of State under the 2008 Act and with regard to the statutory regulation process already laid down by this Government in 2010, which would have better expedited the reform that the TSA indentified was needed in relation to Lewisham.

Norman Lamb (Liberal Democrat, North Norfolk)

Clearly, the previous Government envisaged some circumstance in which a trust special administrator was needed. We are saying that that should apply to quality failures as well as financial failures and I suspect that the hon. Gentleman would agree with that. We are there, in the circumstances that the previous Government envisaged. Is the hon. Gentleman saying that, in those circumstances, we look only at that hospital in isolation?

Jamie Reed (Labour, Copeland)

I am saying that the point of the TSA—a point repeatedly made by the High Court, the Court of Appeal and Parliament before 2010—is that it explicitly should not be used for the purpose of reorganising the health services of an entire health economy.

Norman Lamb (Liberal Democrat, North Norfolk)

I understand the point about not using it for the purpose of reorganising, but on the purposes for which it is intended—in other words, financial failure or quality failure—is he saying that, in those limited circumstances, we should look only at the hospital in isolation?

Jamie Reed (Labour, Copeland)

The point is that the extension to the TSA’s remit in the clause is fundamentally not what TSA was established to achieve.

The BMA says of clause 118, and it is important to listen to such voices:

“The reconfiguration process involves a much more substantial consultation of stakeholders in an affected area and clause 118 effectively bypasses this and follows a much lower standard of consultation in achieving redesign of services in nearby trusts. Failure to engage with key local stakeholders could have very serious negative consequences for the proper planning of local healthcare services”.

It continues:

“The BMA believes that the process should have been better thought through from the onset to avoid the failure regime from becoming an avenue for back-door reconfiguration. This clause was introduced without full consultation and has significant implications for the failure regime, which have not been thought through. If implemented it would pay no attention to the needs of the local population.”

That is utterly damning. The TUC goes further:

If this clause becomes law, successful and financially viable hospitals will be at risk of having services shut down…it is the TUC’s view that this is an attempt by the Government to facilitate the closure and downsizing of hospital services by avoiding consultation with the communities affected.”

I wish that the Government’s amendment to the clause resolved that, but it does not, because it does not place specific duties of consultation on the TSA. Even if it did, it seeks to use that regime for a fundamentally different purpose from that which is intended. To that end, it does not really matter how many consultation duties are placed on the TSA, because it is being incorrectly used to drive a coach and horses through the principles of reconfiguration as laid down by the then Health Secretary and the NHS chief executive in 2010.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The only possible conclusion to draw from the hon. Gentleman’s comments is that he believes that the TSA regime should be applied to a hospital only when it is done without wider consultation or discussion and, implicitly, that would discount any impact it might have on surrounding providers. Is that what he is saying?

Jamie Reed (Labour, Copeland)

It is bad law to leave open-ended powers in clauses that lack sufficient accountability. Also, there is the contravention of the reconfiguration principles—laid down in 2010 by this Government—which are destroyed by the clause. To repeat, the Bill can stand without the clause. Without it, the Care Bill is a modest Bill that may yet command broad political support. The clause is not just rotten, but bad law, and each and every one of our constituents will regret it ever becoming law.

I repeat the words of Professor Don Berwick:

“Society, in general, and leaders and opinion formers, in particular—including national and local media, national and local politicians of all parties, and commentators—have a crucial role to play in shaping a positive culture that…can realise the full potential of the NHS.”

What a spirit that is—we should all embrace that. Professor Berwick is entirely right and, in that spirit, I make this offer to Ministers: withdraw the clause and we will work with the Government openly and transparently on a reconfiguration process and a failure regime process that can command the support of the entire House. That would be in the best interests of patients, medical professionals and commissioners and the NHS as a whole.

The Ministers are used to working in coalition. I ask them, on a matter of profound national importance, to broaden that coalition a little further and to join with us to work on a set of transparent proposals that will command widespread support.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Will the shadow Minister tell us when he will get on to setting out what the Labour party thinks is the alternative? That would be helpful in order to have the constructive dialogue that he seeks. Secondly, I asked the Minister earlier about subsections (3) and (5), which relate to foundation trusts and the continuing power of local commissioners effectively to veto reports by TSAs. Surely that is a significant check that did not exist under the regime in the 2009 Act but will do thanks to the Bill.

Jamie Reed (Labour, Copeland)

My party’s position will become clear through the course of my remarks. On the point that the right hon. Gentleman makes about extending the TSA powers to that effect, if that is the desired outcome, let us throw away the reconfiguration statutory codes laid down in 2010 by the then Health Secretary and the NHS chief executive, because those powers would contravene and destroy the codes.

I have made what is a pretty unprecedented offer: withdraw the clause and we will work with the Government. The clause received little support during debate in the other place, despite consensus on the need for an effective failure regime and reconfiguration process.

It is demonstrably wrong for the Government to claim that the clause is a simple exercise in tidying up the existing TSA regime. My noble Friend Lord Hunt of Kings Heath said:

“I see this not as a clarification of the law but as a major policy change that is at odds with the approach taken by the Secretary of State in the 2012 Act, when he repeatedly put his faith in local commissioning by local doctors.”

That touches on the point made by the right hon. Gentleman. Lord Hunt continued:

“It is also clear that, given the dire financial straits of many NHS organisations, the special administration process is likely to be used on an increasing basis.”

He explained in patient detail that his

“key concern about the amendment is that it removes the requirement to go through a properly defined and structured reconfiguration process, with extensive consultation with the local community. From all that we have learnt about successful reconfigurations, we know that they need to take a special form of open and honest leadership, a patient process of engagement and consultation, and proper consideration of the wider impact.”

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

Evidence demonstrates that clinical reorganisation has a bearing on the immediate and wider population in ensuring that distribution of clinical specialisms is a matter of local and regional clinical interest, for example, the inner London stroke plan. It is also essential that any reorganisation does not just focus on acute services. Does he agree with that with regard to the TSA’s function?

Jamie Reed (Labour, Copeland)

I will come to that, Mr Bayley.

Cross Bencher Baroness Warnock called the clause “intolerable” pointing out that what was attempted at Lewisham could now happen at any hospital in the country if the clause becomes law. She warned:

“What we have now is a radical change of power and…all hospitals are now under threat of closure, whether or not they are successful or administered with financial prudence”.

Lord Warner told the Government that:

“This procedure of trust special administrators was set up to deal with a relatively small number of cases that might come along. It was not a system set up to deal with major overhauls of acute hospitals up and down the country.”

He made the critical point—one which all colleagues should listen to, particularly those of us who are serious about meaningful change and lasting reform—that

“even if you have this set of arrangements on the statute book, you are going to end up with many cases of Lewisham hospital writ large, dotted around the country. There is nothing in these provisions which really ensures that the wider public debate about the reshaping of these services takes place. They are a recipe for a very large number of one-off local rows on a major scale. The lawyers in this House must be rubbing their hands at the prospect of judicial review because a very likely outcome of all this is a large number of contested claims about the way the exercise has been done.”

Cross-Bencher Baroness Meacher called this clause

“a rather quick fix designed to achieve some solution to the Lewisham problem”

but that these problems represented

“a national problem of considerable significance”.

Lord Kennedy called it

“a major change of policy being sneaked through the door by the Government”.

In comments made before the Government had lost their appeal against their defeat at the hands of the courts with regard to Lewisham, Earl Howe, a health Minister, made clear the intended effect of clause 118:

“I have a degree of sympathy with those who have argued that the effect of this could be unfair on the successful provider impacted by the failure of a neighbour…But I argue that it must be possible to take such a step”.—[Official Report, House of Lords, 21 October 2013; Vol. 748, c. 790-799.]

Let us be absolutely clear that the closure of successful hospitals or the reduction of good services provided by good hospitals adjacent to struggling ones is the clear intention of the clause. There is nothing unintended about its consequences. Clause 118 was brought into the Bill because of the Government’s incredible attempt to remove services from Lewisham hospital.

Norman Lamb (Liberal Democrat, North Norfolk)

I am still trying to understand the shadow Minister’s position. The previous Government introduced a trust special administrator in a set of circumstances. We seek to extend that to cover quality as well as financial crisis. In what other way does the clause seek to extend the circumstances? He seeks to suggest that it will be used in inappropriate circumstances all over the country. In what other ways does the clause achieve the claim that he makes? I do not see it.

Jamie Reed (Labour, Copeland)

I am grateful to the Minister and I will come to that. Every MP, every local authority, every hospital, every hospital league of friends, every hospital campaign group and patients’ association in the country are indebted to Lewisham borough council, the Save Lewisham Hospital campaign and my hon. Friends the Members for Lewisham East (Heidi Alexander) and for Lewisham West and Penge (Jim Dowd), and my right hon. Friend the Member for Lewisham, Deptford (Dame Joan Ruddock).

If clause 118 becomes law, the Lewisham legal dispute will come to be seen as the canary in the coal mine. On 31 July last year, Mr Justice Silber upheld the Lewisham appeal to the High Court when the campaigners contended that the actions of the TSA with regard to Lewisham hospital were unlawful. The Government appealed against that decision, believing it was right that maternity, A and E and other services at a successful and well performing hospital should be reduced.

On 8 November last year Lord Justice Sullivan and Lord Justice Underhill dismissed the Government’s appeal against the original decision in very short order. I urge every member of the Committee to read both those concise, clear judgments. From first page to last, they make it clear that the Government never had a case and that the TSA was being deliberately used for a purpose that was never intended. It is because of that abuse of the law as it stood that the clause has been brought forward. I believe in evidence-based policy making, and the evidence in the legal judgments against the Government and their attempt to exercise functions that the clause would make law demonstrate entirely why it should be struck from the Bill.

Mr Justice Silber noted:

“There are few issues which prompt such vociferous protest as attempts to reduce the services at a hospital which is highly regarded and which is much used by those who live in its neighbourhood.”

As though pre-empting the Government amendments before us today, Mr Justice Silber also noted that the superficial and limited engagement of the TSA with regard to Lewisham council was never one of Lewisham’s grounds for review.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

It is important to provide clarity, and I hope the shadow Minister accepts that there is always a role for the courts in judging whether the correct process has been followed. That is an important check and balance of the judicial review system and applies to all public bodies. That check and balance—when applied to the regulations and the way they were applied under the 2009 legislation, which the previous Government introduced—implied that the process in that case may have been incorrect, but not necessarily the intention of the legislation. There is a clear distinction in English law between the judiciary and the courts, and legislation.

Jamie Reed (Labour, Copeland)

The Minister makes an important point. The intention, the language, the clarity and purpose of the law, and Parliament’s will were clearly and specifically reflected in both the legal judgments that I come to now.

There was essentially a twofold foundation to Lewisham’s appeal: that the TSA was acting unlawfully with regard to Lewisham hospital because it had no statutory powers in relation to a separate legal entity to which it had not been appointed; and that the reduction and removal of services from Lewisham contravened all the Government’s reconfiguration tests. That meant that the TSA was being used to reconfigure hospital services without observing the established statutory reconfiguration process.

Mr Justice Silber even cited the Prime Minister in support of the appellant’s case that the Government were seeking to ignore requirements that they had themselves introduced. He quoted the Prime Minister:

“What the Government and I specifically promised was that there should be no closures or reorganisations unless they had support from the GP commissioners, unless there was proper public and patient engagement and unless there was an evidence base…if they do not meet those criteria, they will not happen.”

Unfortunately, the Lewisham case proved the Prime Minister wrong, and the change in the law that clause 118 is designed to achieve runs contrary to everything that the Prime Minister promised.

Mr Justice Silber addressed directly the Secretary of State’s ability to reconfigure services at Lewisham and said that

“the Secretary of State does in any event have additional powers under Section 8 of the 2006 Act to reconfigure the services at”

Lewisham hospital,

“but that would entail a consultation programme that has to be complied with”.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The hon. Gentleman is making points about whether the right process was followed. It is exactly the role of the court to ensure that processes are followed. That is what judicial review is there to do: to ensure that there is probity in decision making. However, he is conflating two issues: the standard for tests for reconfiguration for the majority of services, and in very special circumstances a TSA regime, which has other criteria that are broadly in line with those tests that we are looking to apply through the amendments to the clause.

Jamie Reed (Labour, Copeland)

The conflation is by the Minister, and I urge him to read those judgments in close detail. The Government’s failure to misapply legislation and get away with it demonstrates both the effect and the likely use of clause 118 if it stands part of the Bill.

Clause 118 is bad law, but not just because it changes the purpose of the TSA regime from that which was originally intended. It is bad law not just because it is a poorly thought through element of law that has sprung from a damaging and damning defeat of the Government in the courts. It is bad law not just because it would enable hospital closures, service reductions and reconfigurations without following the proper, established process in every constituency in the country. It is bad law because its open-ended application will ensure that every time it is used throughout the country, the TSA and the Secretary of State will end up in the courts. That is no good for the TSA, no good for the Secretary of State, and no good for local health economies, the NHS as a whole or patients. Critically, it is no good when it comes to making the necessary reforms to the service.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

Any decision can be tested in the courts by any public body, and can be subject to judicial review. The important thing is that it is for the courts to decide whether the appropriate process has been pursued, and it is for Parliament to set the law. Because there were concerns about the original drafting to deal with extreme cases of hospital failure, we have established that the TSA regime can be put in place for quality reasons as well as financial ones. There is a very specific set of circumstances in which that is the right process to follow because of the extreme failure of a trust. That is very different from the general tests for reconfiguration that are set out, and he must acknowledge that important distinction.

Jamie Reed (Labour, Copeland)

There is an incredible cognitive dissonance here. The Government sought to use the TSA process to reconfigure a local health economy. The court said that they could not do that, so the Government said, “Okay, we will change the law so that we can use the TSA process to reconfigure a local health economy.” That is the crux of the matter. When he quickly dismissed the Secretary of State’s appeal against the defeat handed down by Lord Justice Silber, Lord Sullivan noted that

“it is most unlikely that Parliament would have conferred a power on a TSA to recommend, eg the closure of an A and E department or a maternity unit in a hospital within another Trust for which he has no responsibility”.

He went further, describing the Government’s attempts to use that TSA in such a way as “strained” and “unnatural”. Perhaps most importantly, he stated:

“Parliament would have been astute to guard against conferring too broad a power which might be used as a back door approach to reconfiguration.”

Indeed, Parliament was astute in that regard.

Norman Lamb (Liberal Democrat, North Norfolk)

The shadow Minister said that he would come back to this, and I am conscious that he is reaching the end of his speech so I want to test him again. He seeks to argue that the way in which the clause is constructed allows it to be used as a back-door route to reconfiguration. Can he refer specifically to parts of the clause that provide for that? It is our contention that it adds nothing that would facilitate the use of the power as a back-door route to reconfiguration. Can he be very specific about what it does that allows him to make that claim?

Jamie Reed (Labour, Copeland)

Look at the Lewisham case and consider the legitimate expectation of the TSA powers as they were drafted in 2009. There was no legitimate expectation that they would have been used in the way that the Government sought to use them. It is unarguable that the Government are seeking to change the power and extent of the TSA laws and the way in which they are applied in order to achieve reconfigurations.

Norman Lamb (Liberal Democrat, North Norfolk)

It is the Government’s contention that when a hospital trust is in financial or quality failure and action has to be taken, it does not make sense, as the previous Government also recognised, to look at the hospital in complete isolation. It is necessary to look at the holistic state of the local health and care system. Coming back to the point I was making earlier, is it the hon. Gentleman’s contention that in the narrow circumstances in which there is financial or quality failure we should look at a hospital in isolation? If it is, that will have serious consequences for the Labour party if it is ever to return to government.

Jamie Reed (Labour, Copeland)

I do not accept that at all. What is happening here is that the Government are seeking to use the TSA for a purpose fundamentally different from the one for which it was drafted or used.

Norman Lamb (Liberal Democrat, North Norfolk)

Where is it in the clause?

Jamie Reed (Labour, Copeland)

The Minister asks where it is, but he must have regard to the two legal judgments in which the Government were defeated. This is absolutely critical. In the run-up to the most recent general election, the Prime Minister promised a “bare knuckle fight” to preserve hospital services in district general hospitals. He told the BBC:

“People simply do not understand why maternity units and accident and emergency units are being shut down when actually accident and emergency admissions are up and births are up.”

That fight never materialised. The opposite has happened, and it is now manifested in the major policy change that the clause represents. This hospital closure clause is bad law. For the sake of the service, for the sake of the Government’s reputation and for the sake of every Government MP in a marginal seat with a hospital in their constituency, I urge the Government to drop the clause and work with us on a cross-party basis to build a consensus and give the service the stability that it requires.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The shadow Minister has set out clearly his view on why the clause should not stand part of the Bill, but he did not set out the alternative, despite promising to do so before concluding his speech. In this Committee, given the importance that he and his colleagues are attaching to the matter, it surely behoves him to have set out at least some of the detail of what he would do in government to manage a very narrow set of circumstances that are about the severe, serious and enduring financial failure or quality failure of an organisation.

Jamie Reed (Labour, Copeland)

The right hon. Gentleman makes my point for me entirely. The logical inference from what he has just said is that the TSA regime, as seen in, as hoped for, as extended under the clause, will be used to address those care issues and those financial issues. As we heard earlier, they affect at least 20 trusts that we know about and probably more. They are the ones in financial distress. We expect there will be more in clinical distress. Does he really suggest that the TSA regime should be used to address all of those trusts, as that is the logical implication of the clause?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

What I am trying to do is coax the hon. Gentleman into being a little bit more transparent with this Committee about what he thinks is the right way to do it. He has not shared that with the Committee yet and so people might think that he realises that this is the only way one could deal with this very narrow set of circumstances.

Jamie Reed (Labour, Copeland)

I do not accept that at all. This is not the only way. The current TSA regime, unamended, is better than what the Government are seeking to advance here. The TSA regime, without extending its current powers, and the powers that are available to the Secretary of State for Health under previous Acts and with the existing principles of reconfiguration which the Government have already set down for the local health economies, is better than clause 118.

Norman Lamb (Liberal Democrat, North Norfolk)

Does that mean that the hon. Gentleman commits to looking only at one hospital in isolation because the current regime completely fails to recognise that we have to look at the whole of a local health system holistically?

Jamie Reed (Labour, Copeland)

The point is that the Government’s scheme is unworkable. Extending the powers of the TSA in the terms established by clause 118 as it stands is unworkable. Every time the TSA goes into a hospital in financial distress and seeks to change the services of a well performing hospital next to the hospital in distress, it will have an open-ended power and a completely blank cheque. Where is the statutory provision that limits the extent of that power? Would it go to the trust next to that and then the trust next to that?

Andrew Griffiths (Conservative, Burton)

Some clarity is needed here. My hospital, Queen’s hospital, is a Keogh hospital. It has financial and clinical issues. Part of my constituency is also served by Stafford hospital and there are serious problems there. The hon. Gentleman still has not answered my right hon. Friend’s question. What would the regime be if he were the Minister? Would he look at one hospital and not the other, and not the overall health care economy, so my hospital in Burton, but not the one in Stafford? Or is he saying that he would leave the regime exactly as it is at the moment? These are very simple, straightforward questions. What would he do?

Jamie Reed (Labour, Copeland)

There are very simple, straightforward answers, which I hope the hon. Gentleman can understand. The TSA, as it is now, can look at a whole system, but it has specifically defined powers only for one legally constructed body, to which it is appointed. That is a legally workable situation. The situation set out in clause 118 as it stands is not legally workable. The existing system is better than this hand grenade that the Government are throwing into the reconfiguration of principles and proposals, which they themselves established in 2010.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

It has all been said. If the hon. Gentleman wants to have any credibility on this, he has to make this clear: does he believe that the system should be isolated in an individual trust or does it need to be expanded to the wider health care economy? That is a simple question about the Opposition’s position. Is it the single trust or the wider health care economy?

Jamie Reed (Labour, Copeland)

I put the question back to the Minister. Can he define, legally, what a health economy is?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I can. It is defined in the clause, as amended. We have also taken on board points, which we will look at before Report, about the role of health and wellbeing boards and the importance of health and care being put together as part of that wider health care economy. That is what the clause is about: amending what was not very good legislation in 2009 from the previous Government.

Jamie Reed (Labour, Copeland)

Again, the Minister makes the point. He clearly cannot define a health economy.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I am happy to read out clause 118 to the hon. Gentleman if he would like. I will give a detailed explanation in my speech on Report. The clause talks about other effective health care providers—the very thing that the hon. Gentleman has been talking about—commissioners, public engagement and a whole series of other issues and matters that relate to the wider health care economy, which is clearly defined in the Bill and the amendments to clause 118.

Jamie Reed (Labour, Copeland)

So every time a TSA is appointed to a trust in difficulty, they will have to define what a health economy is. That is an open-ended power, and every single Member of this House should be concerned about it. It is one of our principal concerns about the Bill. The cognitive dissonance—the Minister rolls his eyes, as well he might—is stunning. He is asking every single Member of Parliament to write a blank cheque for the district general hospital and other health services in their constituency, and he is opening up all Members to the threat of what happened in Lewisham. I do not believe that a Member of any party deserves to go through that.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

Absolutely not. The TSA regime was established in the Health Act 2009 and was modified with the single failure regime, which introduced quality, not only financial, requirements, and there are rigid criteria for how it can be triggered. It will be used only in exceptional circumstances. That is what Labour Ministers said when they set up the regime in 2009, and since then the regime has been used only twice. It is not to be used in the majority of situations, which can be resolved by local commissioners, Monitor or the Trust Development Authority.

Jamie Reed (Labour, Copeland)

The Minister singularly fails to acknowledge what every commentator in the health policy field is saying about how the clause will be used. They fear the inclusion of the clause in an otherwise fairly modest Bill whose aspirations command broad support. The Minister knows that the proposal will have profound consequences. He has been given a hospital pass with this Committee. Clause 118 is a disfiguring clause in an otherwise modest Bill. It should not stand part of the Bill.

Grahame Morris (Labour, Easington)

I wish to make several points in support of my hon. Friend the Member for Copeland. I agree that clause 118 should not stand part of the Bill. It was not part of the Bill during the Joint Committee’s scrutiny process. It is an add-on, an aberration. I feel that I have no mandate to support it, given the detailed work that we did in the pre-legislative scrutiny Committee.

The clause goes to the heart of trust. I was intrigued when Government Members were talking about the consequences for a future Labour Government, because I distinctly remember prominent Members of the coalition parties campaigning against individual hospital closures in Chase Farm and elsewhere in 2010; they have gone silent on the subject now. If we are to move forward, we need to rebuild trust and seriously engage with people.

I believe that the clause conflicts with the National Health Service constitution, which states:

“The NHS belongs to the people.”

Clause 118, or, as it is aptly referred to in some circles, the “hospital closure clause”, brings that principle into question. If I am allowed to say this, I think the Ministers are being disingenuous in how they are portraying it. Tom Clancy is one of my favourite authors, and I think the clause poses a “Clear and Present Danger”. It will take health services and, as my hon. Friend the Member for Copeland said, every NHS trust and NHS foundation trust away from the public, leaving no hospital bed in the country safe. It should not stand part of the Bill. To suggest that the TSA regime is a natural extension of the existing regime, which arose from the 2009 Act, is a gross distortion of how it would be applied. If the Bill is enacted, the clause will mean that the NHS in England will face further wholesale top-down reorganisations. No one wants that—I do not think that Government Members want that, and certainly no one voted for that. The problem is that there would be virtually no accountability to local people.

The successful legal challenge brought by the London borough of Lewisham and the Save Lewisham Hospital umbrella campaign—I think some of its representatives are in the Public Gallery—showed conclusively that the Secretary of State did not have the power to axe Lewisham’s accident and emergency and maternity wards as a solution to the problems in the neighbouring South London Healthcare NHS Trust. Clause 118 is designed to allow the Secretary of State to do what he failed to do in Lewisham—to close down thriving and financially sustainable hospitals on a whim, without full and proper consultation.

With all due respect to the right hon. Member for Sutton and Cheam and the probing amendments that we discussed earlier, to suggest that a tokenistic meeting with a local authority overview and scrutiny committee would assuage public concerns does not hold water. We must rebuild trust. We need full and proper consultation with patients and the public. We also need agreements with the clinical commissioning groups. I am surprised at the willingness of Government Members who have championed the cause of GP-led commissioning to subvert their role.

The trust special administrator process will bring a drastic change to hospital configurations. It represents a move away from the principle of reconfiguration of services on the basis of clinical need in favour of reconfiguring services based solely on financial considerations. The justification process starts with the need to save money. We touched on this issue in our debate this morning, but, as it stands, NHS and foundation trusts are struggling to do more with less, for a variety of reasons. We have seen problems where walk-in treatment centres have closed, and NHS spending has fallen in real terms. More than one in five trusts and one in eight CCGs are reporting a possible overspend by the end of the financial year.

Figures cited earlier suggested that around 20 hospitals are facing financial difficulty, but the NHS Trust Development Authority has reported that around 30% of non-foundation trusts are forecasting a deficit for this financial year, and Monitor reports that around 11% of foundation trusts are forecasting a similar position. The number seems to be considerably more than 20, so I suspect that it will be hugely significant if the clause stands part and the Bill is enacted. There is a growing pessimism about the financial health of the NHS, and the figures suggest that there will be a growth in the number of trusts undergoing the trust special administration regime.

The Minister talked about clinical failure, but given the fact that that the clause will permit the Secretary of State, on recommendations from a trust special administrator, to take action against hospitals that lie outside the initial scope of the administrators’ investigation, any organisation neighbouring a trust in financial distress—regardless of how popular, successful or robust its services are, or how financially viable it is—could be downgraded or closed. As my hon. Friend the Member for Copeland said, the whole House—not just Opposition Members, but Government Members—really should be concerned about the implications of the clause.

There is sometimes a need for changes in a local health economy that extends beyond the trust that is failing. However, the fundamental problem is that the clause seeks to change the trust special administrator process in a way that was never intended, and it has the potential to change radically the way in which our NHS services are configured. The Secretary of State’s failed bid at the financially driven closure of Lewisham hospital’s maternity and accident and emergency units sparked a mass protest. Large numbers of people—thousands—participated in public meetings and demonstrations. If the clause is agreed, we can expect tensions to be further exacerbated, and it should serve as a warning to us that the lack of meaningful consultation in the trust special administrator process leaves a huge democratic deficit and a black hole in accountability. Indeed, when the Minister was pressed four times by my hon. Friends the Members for Oldham East and Saddleworth and for Copeland, he could not give a reply.

The amendments that we have already rejected would not have mitigated the consequences of the clause, and they fell far short of providing meaningful consultation. The additional consultations for staff, commissioners and service users in affected trusts amount to only a bare minimum and would still be far fewer and far shorter than what is typically required.

Such reorganisations require consensus for change on clinical grounds and they require political support. They at least require a huge amount of engagement and understanding. The Minister gave an example of stroke services, and something similar happened with heart services in my region. There needs to be a sustained effort to persuade people about the benefits of a reconfiguration, and the arguments need to be clinically led. It should not be done at the whim of a Secretary of State on the basis of a financial driver. Genuine public engagement is required.

Clause 118 as currently drafted supports none of the preconditions and will allow trust special administrators to overrule any concerned parties. If the clause becomes law, the Secretary of State will be granted the power to issue directions to require foundation trusts and clinical commissioning groups to take steps that they do not want to take. The Secretary of State’s increased power and Monitor’s expanding role directly contradict earlier Government promises that local commissioners would no longer be subject to central diktat, and represent a reversal of the vision of a decentralised health service that was presented during the passage of the Health and Social Care Act 2012. The consequences of the clause will be a decline in the quality and nature of local health services, and, I fear, an increase in health inequalities.

The right hon. Member for Sutton and Cheam stated in his local press on 7 September 2012 that the closure of maternity wards at the St Helier hospital would lead to

“more mothers giving birth in the back of their car”,

and he described such closures as “dangerous”. He hoped that when the proposals landed on the Secretary of State’s desk, he would consign them to the bin.

We have agreed on much of the earlier parts of the Bill, certainly on part 1. The right hon. Member for Sutton and Cheam and I are in agreement on clause 118. I urge the Minister to remove the clause.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful for the opportunity to follow the hon. Member for Easington, not least to address directly the last point in his contribution, because it absolutely does not speak to the debate. The circumstance at St Helier was part of an attempt by a combination of clinical commissioning groups that inherited a process started by primary care trusts to reconfigure services across south-west London. That reconfiguration is one of the reconfigurations that has led me to be as critical as I have been in Committee today and elsewhere on the public record about the fact that the NHS has failed to provide a cadre of managers and clinical leaders who are effective at engaging with the public and leading and managing change well. We are not good at this in the NHS. That is why, all too often, we wind up with bad proposals that do not add up and can be legitimately criticised and ultimately judicially reviewed.

We also end up with proposals that do not go anywhere and large amounts of public money are wasted. We have to ask what can be done to change the process at the front end. Clause 118 provides for a last resort. It is what the original TSA process that was put in place in 2009 is all about. The hon. Member for Easington, who made some important points, should not confuse good process and its absence, which leads to bad decisions, with this process, which is about trying to deal with last resort situations.

Grahame Morris (Labour, Easington)

Does the right hon. Gentleman agree that Opposition Front Benchers’ offer to engage actively in discussions to find a solution to that particular problem is generous?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am sure that the offer was intended to be a useful contribution to the debate, but for it to be meaningful and transparent, we needed to be clear about the parameters of that discussion. By the end of the exchanges between Front Bench Members, it became apparent that the status quo should remain. My conclusion is that, if the arrangements in the Bill for trust special administration as a last resort are retained—when there has been a chronic financial or quality failure—the Opposition are saying that anyone who has the misfortune of running an NHS or foundation trust that meets the criteria to trigger a trust special administration will be thrown to the wolves on their own, because no other part of the health care system in their area will be able to play a part in working out a way in which the future can be secured.

That is the message that comes from Opposition Front Benchers, and it is a very bad message for them to have allowed to come out of their mouths and be the conclusion that would be perfectly reasonably drawn from what they have said. The absence of an alternative—it would have been constructive and helpful to understand what might have been done instead—is a weakness in the Opposition’s argument.

Grahame Morris (Labour, Easington)

I will be brief. The hon. Gentleman says that it would be a bad message to send out. Is it a bad message to send out to a hospital trust like Lewisham, where there was never any dispute about the quality of the services that were provided, their popularity or the robustness of their financial position? Was that an acceptable way to proceed?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Let me quickly go back to the concluding remarks of the hon. Gentleman’s speech. By extension, he was trying to encompass my local hospital’s travails, which are not primarily financial and are certainly not a matter of quality. The quality of my local NHS trust bears very good comparison with its neighbours. The situation was simply that it happened to be considered to be in the centre of the area that was subject to reconfiguration and therefore was the most convenient candidate for change.

That is not a good process and it is why I have challenged that and will continue to do so, and why I believe there is a fundamental issue around the quality of these processes. I would have thought the hon. Gentleman and I agreed that the quality needs to be significantly better than it has been historically, not least because of the points made by the hon. Member for Copeland about the greater pressures on the NHS through demographic change, the rise in non-communicable diseases and all the other things that require significant change to the NHS.

Norman Lamb (Liberal Democrat, North Norfolk)

My right hon. Friend is making a good contribution. It seems to me that there was a recognition by the shadow Minister of the need for change in the NHS and facilitating that change with proper engagement. This clause is about a narrow set of circumstances where there is financial or quality failure. The question in those limited circumstances is whether to consider the hospital in isolation or to take a more holistic approach. Does my right hon. Friend agree that any sensible Government would take an holistic approach to addressing the consequences of financial or policy failure?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

One has to reach that conclusion. It is entirely right for the shadow Minister to rehearse the court case at length, but it is entirely right for Parliament to reflect on what the court has had to say and to take a view on whether the law, as a result, is defective and needs to change. That is what the Committee is now scrutinising. It is not sufficient simply to hold up the court’s judgment and say that Parliament cannot take a different view, because that is what Parliament is here for.

Jamie Reed (Labour, Copeland)

I am grateful to the right hon. Gentleman for again making my point for me. The Government want to change the purpose of the TSA so that they can reconfigure hospitals and hospital services in the health economy without going through the processes and procedures established since their election in 2010.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Part of the purpose of scrutiny is to set out what we would do instead. That has not been present in the scrutiny so far.

Norman Lamb (Liberal Democrat, North Norfolk)

Has my right hon. Friend identified anything in the clause that seeks to change the TSA’s purpose in the way the shadow Minister suggests, other than to introduce an important measure to address quality failure? I have not found anything, and I have tried to test the shadow Minister.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I re-read the clause during that intervention to satisfy myself, and the shadow Minister has not adequately dwelt upon proposed new subsection (3) of section 65O of the National Health Service Act 2006, which is relevant to the narrowness of clause 118. If ever there was a case for a consolidation Bill, we need one for NHS legislation. I do not know whether we will ever agree to such a Bill, because consolidation Bills are simply about maintaining the status quo, but attempting to follow all the consequential changes made to NHS legislation over the past 20 years is a nightmare—[ Interruption ]—the shadow Minister is nodding, and I am sure he agrees with me—especially for those of us who do not have the luxury of a civil service to help to navigate our way through it.

That was a slight distraction, but proposed new subsection (3) reads:

“necessary for and consequential on action taken in relation to that NHS foundation trust.”

The measure is a narrowly defined extension of the TSA’s remit; it is not the sweeping monster portrayed in the speeches of Opposition Members and in the material circulated to constituents of mine who have raised the concerns with me. Secondly, in response to the Minister’s intervention, subsections (3) and (5) make it clear that there is a role for local clinical commissioning groups in saying yea or nay to the appointment decision on a TSA, which is important.

Jamie Reed (Labour, Copeland)

The sweeping monster that the right hon. Gentleman describes is precisely why the courts found against the Government: they sought to use the TSA for a purpose for which it was never intended. The clause will give effect to the sweeping monster that he describes.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That does not bear any examination of the text. It is okay rhetorically, but it does not work when one reads the text.

Norman Lamb (Liberal Democrat, North Norfolk)

Is it not the case that, rather than as the shadow Minister implies, if ever a future Government sought to use the measure inappropriately as a back-door route to reconfiguration where the narrow test does not apply, the High Court would strike them down, as it did in the autumn?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I assume that a court trying to construct the intention behind the clause would look to this debate and, more importantly, to the Bill, and they will read the words “necessary for” and “consequential.” I suspect the power will be deemed to be fairly narrow, not broad and sweeping.

Earlier, in our consideration of the proposed amendments to the clause, I asked the Minister to say a bit about how the duty on NHS England and the Secretary of State will protect the autonomy of bodies exercising functions under the 2012 Act. That is clearly relevant to the exercise of decisions by Monitor and the Secretary of State under the trust special administration regime. It would be useful for that to be made clear—either now or in writing ahead of Report—because that consideration clearly acts as an additional brake on the Secretary of State using the power in the way that has been portrayed by some members of the Committee. That clarity would give a useful further reassurance to those following the debate as well.

I have found this debate really quite illuminating. Maintaining the status quo, which is effectively what the Opposition want, would send the message out from this place that if a trust is in financial trouble sufficient to trigger the regime, it has to deal with that on its own, and that no one else in the health economy of its area should play a part in working out the way to a sustainable future for the health care of the local population. I look forward to the remainder of our debate.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I want to make only a few remarks, as a lot has already been said. My hon. Friend the Member for Copeland was absolutely right to set out the importance and value of the NHS and how our society as a whole sees the NHS and symbols of it, including hospitals. As Members on both sides of the Committee have said, we should not be afraid of the reconfiguration of services where it can improve quality and ensure patient safety. That is important. However, the process by which we come to decisions about how services can deliver the best for their communities is also important, as the right hon. Member for Sutton and Cheam identified. In particular, he identified the importance of change management, and I would not disagree that our ability to manage change within the NHS has not always been the best.

The process should be based on evidence, however, as my hon. Friends the Members for Easington and for Copeland have said. Clinical evidence and evidence from communities and from managers all need to be considered. The issue with the clause is its unintended consequences. One is the potential that evidence from the full range of the health economy, to which my hon. Friend the Member for Copeland alluded, might not be taken into account. Another consequence is that the potential to usurp—in other words, to abuse—power, as we saw happen in Lewisham, will still be there. The British Medical Association and the Royal College of Physicians have said that there is the potential for the provisions in the clause to be used in a bad way to usurp people’s responsibilities and authority, and therefore the potential for back-door reconfiguration. On that basis, we need to delete the clause.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

We have had a debate that Government Members find disappointing in many respects. There has been a wilful—or perhaps non-wilful—attempt to conflate the normal process for reconfiguration with the processes in place under the TSA regime, which are for specific circumstances in which there is an abject failure of quality or in which a trust is unsustainable for financial reasons. I remind the Committee that those powers have been used only twice for providers since the then Labour Government introduced them in 2009. One occasion, as we know, was for Mid Staffs—we need not dwell upon the situation that led to that trust’s difficulties—and the other was for Lewisham.

There is an important point here. There is an issue with the Lewisham judgment, and it is important not to conflate the power of the courts with the separation of powers that we have in Parliament. Parliament passes laws; it is then for the courts to judge whether a body or person exercising given powers has acted in the right way in accordance with those laws. More broadly, judicial review is always available to ensure that the process and the extent to which the powers were used are right.

In the context of the Lewisham case, there were issues with the process and about whether the scope of the powers in the 2009 Act were adequate to look more broadly at the wider health economy. It was found that the TSA had gone beyond the scope of the powers in the 2009 Act. That was the judgment, and it was for the court to make—whether the process was right and whether the TSA had acted in accordance with the powers. The matter was a grey area, which is why it went to court and why the judicial review was made. There were arguable points on both sides.

As a result of what happened with that case in south London, we have been forced to make improvements to the TSA regime. We need to recognise that in that context it was the 2009 regime enacted by the Labour Government that was judged. Since the guidance to the 2009 Bill was issued, and from the debate on the Bill, the understanding was always that there would be a broader look at the wider health economy. The courts, however, felt that the legislation was not sufficiently drafted to allow the TSA to act as it did. That was in the judgment of the courts and, because the legislation was not drafted accurately and in the spirit of the parliamentary debate in 2009—which I will come on to—that is why we are where we are today. We are putting in place changes that will increase the scope for consultation as part of the TSA regime; ensure that the broader health economy is properly consulted in every case and that the TSA may do that; enshrine the need for public consultation; and ensure that local health care commissioners are properly consulted in the TSA process.

Jamie Reed (Labour, Copeland)

The Minister is being generous with his time, but that is simply not the case. The principal contention of both the High Court and the Court of Appeal was that the Government were seeking to use the TSA and its powers for a purpose for which it was fundamentally never intended. These are not matters of interpretation, but matters of fact.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

That is a fundamental misunderstanding of the judicial and court processes. The court is there to interpret whether the powers should have been interpreted in a narrow way, as drafted in the 2009 documentation. It was for the court to interpret whether the powers were drawn narrowly or so as to allow the wider health economy to be taken into account, as we are now providing for in our amendment. The clear judgment of the court was that the powers should be interpreted in a narrower way. That was the judgment on the TSA process in south London—it was a matter for the court to decide and to apply the process. It was a legal matter.

Public bodies may always be taken to judicial review to examine a process or the way in which they exercise their powers—that is always available to members of the public or, as in that case, a local authority. That is the case under much legislation passed in this place. It is a right and important check on the process. It is for the courts to decide whether the appropriate judgments were made and whether the process and the relevant Act were interpreted correctly—because of that, the case went to appeal. It is right for the issue to be tested in that way. That is what any Government would do to ensure that legislation is being applied appropriately. It is right that we should do that.

On the substantive points, however, what we have discussed today is whether a mechanism that has been used only twice since 2009 should be in place. When there is extreme failure of a trust or foundation trust, does there need to be a mechanism in place that deals with quality failure or with sustainability failure, which is when the sustainability of the trust is at question due to financial pressures? Of course there does, because we are dealing with people’s lives. If a trust or foundation trust fails in extremis, for financial or quality reasons—the two cannot often be distinguished from each other—it is important that there is a process for dealing rapidly and effectively with that failure, so that we can protect patients and the public.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

The Minister mentions extreme failures; does he have a number in mind?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I have already given the fact that the powers under the Labour legislation have been used—[Interruption.] It is not different; it is the same legislation, and we are making it more workable, to provide greater public engagement and ensure that we look at the wider health economy. That is why we are making these changes.

That power has been used twice in five years—I have made that point repeatedly—and is used only in extremis. The normal mechanism for dealing with concerns about a trust is through the TSA and Monitor and, more importantly, trusts and foundation trusts talking to their commissioners, who should hold them to account on the quality of services they deliver. Indeed, as my right hon. Friend the Member for Sutton and Cheam rightly said of the Health and Social Care Act 2012, which he took through Parliament, that should be done through health and wellbeing boards and local authorities, as well, which have a key role in scrutinising wider involvement in the health care economy. It is right that they should do so, which is why we have committed to taking away the points he raised about their involvement in the process and dealing with them on Report.

“The vast majority of trusts perform well”—

we recognise that—

“but in the rare instances where that is not the case, there must be transparent processes in place to deal with poor performance.”

That is what the right hon. Member for Leigh (Andy Burnham) said on Second Reading of the Health Bill, when he put in place the trust special administration process, which the Labour party now seem to want to distance themselves from, as well as rewriting history, saying that it was not Labour legislation that led us to where we are today.

Jamie Reed (Labour, Copeland)

It is not true.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

It is absolutely true. It is on the record in Hansard. The right hon. Member for Leigh said on Second Reading of the Health Bill:

“The vast majority of trusts perform well, but in the rare instances where that is not the case, there must be transparent processes in place to deal with poor performance.”—[Official Report, 8 June 2009; Vol. 493, c. 544.]

That is exactly what the Labour Government did by establishing the TSA to deal with such extreme failures. We have strengthened that process by allowing the TSA now to consider quality failures, to ensure that we have not just a process that is transparent and open for failures of financial sustainability, but one that allows rapid action when there are the kinds of failures that I mentioned.

Jamie Reed (Labour, Copeland)

Will the Minister give way?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I will not allow the hon. Gentleman to intervene now, although I will give way in a moment.

It may be rare for a Conservative Member of Parliament —or, indeed, a Liberal Democrat Member—positively to endorse something that Unite the Union has said, but I agree with it. However, the shadow Minister failed to agree, although Unite is a great funder of many Labour MPs. Unite submitted a letter as written evidence. I am sure that it would be disappointed that a Labour Member could not agree with what it said, when I asked and quoted it. It said:

“Evidence demonstrates that clinical reorganisation has a bearing on the immediate and wider population and ensuring that distribution of clinical specialisms is a matter of local and regional clinical interest, for example, the London Stroke Plan. It is also essential that any reorganisation does not just focus on acute services.”

That was said by the funder and supporter of many things that the Labour party does, but the shadow Minister could not support it. I find that disappointing. I support exactly the spirit of what Unite said; that point is well made. It is a pity that the shadow Minister is unable to do so.

It is worth saying that clause 118 was tabled following calls to the Government by many key stakeholders representing NHS providers. Like us, they recognised that the trust special administration regime set up by the previous Government needed amendment to make it workable in the spirit of what the right hon. Member for Leigh intended when he set up the regime, as in the quote that I read earlier. Like us, they recognise the experiences and how the regime has operated in south London and Mid Staffordshire, and that issues of financial and clinical sustainability nearly always cross organisational boundaries.

It is worth quoting the NHS Confederation’s chief operating officer, Matt Tee, who makes an important point well:

“Ask any one of our members and they’ll tell you that no NHS trust is an island. After all, the cause of failure in quality or finance can often be rooted in how the local health economy operates in its entirety, not just one hospital.

So when considering financial failure, we need to look at the whole local health service and not just one trust in isolation. Why? Because failure isn’t neat or tidy, it’s messy and quite often creates a ripple effect beyond the lines on a map.”

That is the very point made by my right hon. Friend the Member for Sutton and Cheam. He also said that, with the Opposition’s complete failure to provide any constructive discussion in the debate and their effective opposition to any trust special administrator regime, they are failing to provide a mechanism to deal with failing trusts. [Interruption.] They would say, “Patients more broadly than this hospital don’t matter.”

Liz Kendall (Labour, Leicester West)

The Minister is not taking any interventions.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I will take interventions. The Opposition would say, “It doesn’t matter if there are other hospitals in the local area that may or may not be able to provide those services.” According to the shadow Minister, we should look at just one hospital in isolation. That is unacceptable. That is not good health care. It is not in the interests of patients and it is absolutely against the best interests of the NHS and social care in local areas.

Jamie Reed (Labour, Copeland)

The Minister should not be frightened of interventions. He should listen carefully to the point made by Lord Justice Sullivan, which was that

“it is most unlikely that Parliament would have conferred a power on a TSA to recommend…the closure of an A and E department or a maternity unit in a hospital within another Trust for which he has no responsibility…Parliament would have been astute to guard against conferring too broad a power which might be used as a ‘back door approach to reconfiguration.’”

While we are on that, the Secretary of State has the power, under either the existing TSA regime or the clause, to do precisely what the Minister suggests should be done.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The hon. Gentleman is confounding his argument. He quotes from a judicial review and says that he does not like what the TSA regime does, but now he says that it is okay for the Secretary of State to have those powers under the existing legislation. It is always possible—I have said this many times—to take judgments to judicial review and that will always be the case. It is important, though, to differentiate the process in the courts from what actually happens. It is important that the will of Parliament is put across clearly in legislation.

If someone takes issue with the way in which the process is followed or how the powers are exercised, that can be interpreted in the courts if a case needs to be brought. The fundamental point is that we must have a clear and transparent regime, as we will have under the clause when amended, for dealing with severe failure. That is in the best interests of patients. If we do not have something to tackle that, patients will suffer.

Liz Kendall (Labour, Leicester West)

The Minister is trying to suggest that Opposition Members somehow think that hospitals are an island. He has conveniently forgotten that we had a plan for fundamentally changing hospital services in every region of the country, which involved professionals from every part of the service, as a result of Ara Darzi’s next stage review. The previous Health Secretary scrapped those plans for political reasons. If the Government had got on and made the changes that had the buy-in of professionals, patients and the public, they would not be in the situation that we now face.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

All I can do is judge the previous Government by the legislation that they passed, and they did not pass legislation with the effect of anything that the hon. Lady said—it would be wrong to suggest that. It is a bit like when we talked about social care: after 13 years of doing nothing, the previous Government brought introduced legislation at the very last minute.

Liz Kendall (Labour, Leicester West)

You are rewriting history.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I am not. It is absolutely the case—they did nothing. That is clear for the parliamentary record. We are judging the previous Government by their actions in legislation. There can be warm words, and I recognise and accept the important point—[ Interruption.]. The important point that the hon. Lady is making is in complete contradiction to that made by the other shadow Minister. [Interruption.]

Hugh Bayley (Labour, York Central)

Order. The Minister will choose when he gives way.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The hon. Lady is talking about the broader health economy. I know that she was not here for all of the speech of the hon. Member for Copeland, but he just said that trusts should be seen in isolation. The positions of the two shadow Ministers cannot be reconciled. They need to go away and have a think about this.

On one side, the hon. Lady said in an intervention that she wanted to take a broader view. The other shadow Minister, who has just spoken for 45 minutes, said that he wants trusts to be seen in isolation. It does not add up. It is incoherent. It does not work, and it is against the spirit of the 2009 legislation that the Opposition introduced.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

Will the Minister tell me how subsection (6) of the clause is compatible with a clinician-led NHS?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The point that I have made consistently is that there is a general process for reconfiguration—we discussed the issue when considering previous amendments tabled by my right hon. Friend the Member for Sutton and Cheam and the Government amendments—and four clear tests are set out. We are well aware of those; the shadow Minister quoted them in his remarks. Those tests are clinical commissioning group or GP commissioning support, so the local commissioners are signed up, clinical support, engagement with public and patients, and patient choice. Those four tests apply to reconfigurations that take place on a daily basis at the moment.

However, there is a distinct process that will operate for the trust special administrator regime. It is broadly in line with the tests that are set out. We have laid out that there needs to be proper consultation with trusts and their staff, which is part of the TSA process. There is also consultation with providers and commissioners, and a much broader process that we are outlining to do that. There is commissioner engagement, patient engagement, and the engagement of front-line staff in decisions about a trust. It is absolutely right that that should take place. We also need to remember that the TSA regime is dealing with very urgent examples of failure. Importantly, as part of the absolute duty for involvement of local CCGs, we now know that under this Government’s changes in 2012, the CCGs are clinically led, so fundamentally, I do not understand the point that the hon. Member for Oldham East and Saddleworth is making.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I am happy to enlighten the Minister. Is it not the case that the TSA can override the commissioners and the GPs on the CCG if they disagree?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

There is a clear process. In the four tests for reconfiguration, other groups as well need to be involved in decision making, in terms of general reconfiguration. On specific issues with the TSA regime, local commissioners are involved. Obviously, NHS England has a responsibility for overseeing what local commissioners do. There is also the involvement of providers and affected providers and commissioners in the wider health economy. There is engagement with staff at trusts and with patient groups. A much more holistic approach is being taken. There is full engagement, and on the basis of that engagement and looking at the broader health economy, decisions can rapidly be made to ensure that things get better.

Norman Lamb (Liberal Democrat, North Norfolk)

If the clause is lost from the Bill, as the Opposition are arguing for, is not there a real risk that the NHS would be left unable to cope adequately and in a sustainable way with either financial or quality failure? The potential risk to patients from that would presumably be quite substantial.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

My hon. Friend is absolutely right. I just do not understand the Opposition’s point. The fact that the hon. Member for Leicester West was not present for most of the debate perhaps exposed a contradiction in the arguments offered by the Opposition Front-Bench team. She spoke about the wider health economy and the hon. Member for Copeland talked about trusts in isolation. My hon. Friend is right that we need to ensure that we have—

Liz Kendall (Labour, Leicester West)

Why did the Minister scrap the Darzi review, or put it off for three and a half years?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The hon. Lady may ask that, but the point is that she is talking about the wider health economy, and that is exactly what our amendments are designed to address and exactly what the hon. Member for Copeland has been arguing against for the past hour. Their policy is intellectually incoherent and does no credit to this place. I agree with the hon. Lady about the broader health economy, but she does not agree with her fellow shadow Minister. That is intellectually incoherent. Perhaps she should read over in Hansard what he said.

Jamie Reed (Labour, Copeland)

May I explain?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

You have said quite enough already.

Hugh Bayley (Labour, York Central)

I have said nothing at all.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I know that you do not like hearing that your arguments are incoherent and do not stack up, but it is true—[ Interruption. ]

Hugh Bayley (Labour, York Central)

Order. I do not know who is getting more excited, the Minister or the shadow Minister, but they should both contain their excitement.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

The point that my hon. Friend the Minister made is key. When there is extreme failure in a trust, we must have a mechanism to deal with that failure. That is exactly what the right hon. Member for Leigh (Andy Burnham) envisaged when he was Secretary of State when the measure went through Parliament in 2009, and it is what we are looking at here. We must have a regime that takes into account quality of care, and if there are extreme failures in quality of care or extreme failures in sustainability—sustainability will have effects on quality of care—we must have a rapid means of dealing with that.

The powers are to be used only in extremis, and they have been used only twice in five years. They are about protecting and looking after patients and ensuring that we act rapidly in their best interests. If a trust is letting patients down because they are not receiving the right care or treatment, and if that treatment is of an extremely low standard, it is not in patients’ best interests to allow that trust to continue operating in the same way. In such extreme circumstances, the TSA regime would potentially be triggered. I do not understand why the Labour party is not standing up for the best interests of patients in its proposal.

Following the argument made by the hon. Member for Copeland—as opposed to the one made by the hon. Member for Leicester West—if the clause is removed, we will not have an effective way of dealing with trusts that have let patients down badly and given dangerous care. The Labour party has made no proposal except “We do not like the clause”. Labour Members are quite happy to allow things to carry on as they are, but when severe failures of care occur, such as the one in Mid Staffordshire trust, they are happy for those failings to continue. The Government are not happy to do so. [Interruption.] Again, we have an argument from a sedentary position that this is not the way to do it. If there was a way to do it, why did the shadow Minister not say what it was? Not a word came—[Interruption.] Mr Bayley, I think some order may be required.

Hugh Bayley (Labour, York Central)

Order. May we have some order in the Committee on both sides?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

Thank you, Mr Bayley. It would have helped the hon. Member for Leicester West had she been here earlier to hear what her fellow shadow Minister said. It was completely contradictory, unfortunately, to the tenor of the intervention she made. I agree with the point she made: we must look at the broader health economy and ensure that we act in the best interests of patients.

The Labour party is advocating no policy, but Government Members are happy to stand up and say that there is an important issue at stake. When patient care is of a standard such that we need to trigger the TSA regime, or when a trust is financially unsustainable and patient care is affected, we need a regime to deal with that and make sure that patients are properly looked after and protected. That must take into account what provisions are available in the wider health economy and how other trusts can help in dealing with that failure. That has to be the right thing to do. Opposition Members may stand up and say that they want to continue to fail to deal with failure, but I do not think that such a position is justifiable or in the interests of patients.

Jamie Reed (Labour, Copeland)

Will the Minister give way?

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

No, I am not going to give way, because I need to make some progress. I am going to talk directly to the clause, and I will not repeat some of our discussions about how the TSA regime is triggered.

Norman Lamb (Liberal Democrat, North Norfolk)

Hear, hear.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I hear “Hear, hear,” from my hon. Friend. It is important to outline that the improvements to the TSA regime are about making sure that there is proper public engagement and that local commissioners and providers are taken into account. The improvements to the regime recognise that if a trust fails, for whatever reason, other trusts and other commissioners who are willing need to be part of the solution because they are inherently involved in the provision of services in that local area and local health care economy. That has got to be the right thing.

We are strengthening the powers of the TSA to engage. We are lengthening the process slightly to ensure that there can be that active engagement with the local community. We have taken away the important points from this debate raised by my right hon. Friend the Member for Sutton and Cheam about ensuring that health and wellbeing boards and that important aspect of social care in the health economy are taken on board. We have also taken away the points raised about the oversight and scrutiny committees. This is a good regime that deals with failure, protects patients and ensures that the views of the wider health economy are taken into account.