Health and Care Bill - Committee (6th Day) (Continued)

House of Lords, 26 January 2022.

Baroness McIntosh of Hudnall (Labour)

My Lords, the noble Baroness, Lady Brinton, will be speaking remotely in this debate. I should also alert the Committee that, should this amendment be agreed to, I will not be able to call Amendment 163 by reason of pre-emption.

Amendment 162A

Lord Lansley (Conservative)

My Lords, the purpose of Clause 26 is to introduce a process by which the Care Quality Commission inspects integrated care systems. The structure of this is the subject of my Amendments 162A and 164A. Those two amendments go together—they are not separate, but entirely linked. The purpose of Amendment 162A is to remove the process by which the Secretary of State sets objectives and priorities for the Care Quality Commission in undertaking such inspections of integrated care systems; Amendment 164A then seeks to insert a process by which the Secretary of State, and indeed others, are consulted by the Care Quality Commission over the quality indicators that it would use to assess the quality and performance of integrated care systems.

A bit of background would be helpful for noble Lords in this respect. Think back to what the Care Quality Commission’s existing statutory arrangements are in relation to reviews and performance assessments of existing bodies in the National Health Service. The structure is very straightforward. The commission is asked to set quality indicators, to consult on those and then to review against them and produce reports. I know from personal experience that the Secretary of State cannot direct the Care Quality Commission to undertake a particular review, but they can certainly make a request, and their role as steward of the whole healthcare system has certainly led Secretaries of State to do that from time to time. But the legislation does not permit the Secretary of State to direct the Care Quality Commission in how it does its job; it is an independent body corporate. There is intrinsic merit in the Care Quality Commission, as an inspectorate, operating independently. The structure of this clause in this Bill is at odds with the way in which the existing legislation is structured in the 2008 NHS Act as amended. The effect of these two amendments would be to restore the independence of the Care Quality Commission in undertaking its activities and in the way in which it goes about its job.

The Government’s drafting of the legislation is wrong anyway. There are references to objectives and priorities. The priorities are referred to in new subsection (3), inserted by Clause 26(2), which says that they

“must include priorities relating to leadership, the integration of services and the quality and safety of services.”

I have to say that this is teaching grandmothers to suck eggs. There is no way in which the Care Quality Commission is not going to incorporate such indicators of quality. We know that from the generic nature of the quality indicators that it uses generally for existing NHS bodies. The reference to setting objectives is not only novel but completely undefined. The Secretary of State can set whatever objectives they wish to; we do not know what they are and there is no indication of what they might be. Taking out references to objectives and priorities seems to me to be a very good thing.

As it happens—I declare my own role in this—in the 2012 legislation there was previously a process by which the Secretary of State set standards for the Care Quality Commission in determining what the quality indicators should look like. We actually took that out of the 2012 legislation, precisely on these grounds: that the Care Quality Commission is, and should be, as independent as possible.

I think this clause proceeds from the mistaken apprehension that the Care Quality Commission is a part of the management process of the NHS. It is not. If the Secretary of State wishes integrated care systems to proceed in any particular way, the Secretary of State has the means to do so available via the mandate; the Government plan to add specific powers of direction; and NHS England has duties that go in exactly the same direction. The Care Quality Commission is not part of the management process for integrated care systems; it is an inspectorate. If—and this is a risk we must avoid—the Secretary of State were directly intervening to set objectives for integrated care systems to be inspected subsequently by the Care Quality Commission, whereas NHS England is itself setting objectives for integrated care systems through its responsibilities and duties, those two may come into conflict.

For all those reasons, the Government would be well advised to accept these two amendments and put the Care Quality Commission into the independent role in relation to ICSs that it, and people working in the National Health Service, would recognise as being its role. I beg to move.

Baroness Brinton (Liberal Democrat)

My Lords, the noble Lord, Lord Lansley, has set out the tensions underlying the Bill about returning to the Secretary of State powers over independent, arms-length bodies; specifically, in this amendment, the inspections carried out by the Care Quality Commission in its role as a regulatory body. He rightly reminded us of the current arrangements, which give the CQC the ability to set its indicators and which, frankly, work well. I will not repeat his arguments, except to say in a slightly wider context that almost every piece of legislation brought to Parliament by this Government has given Ministers more powers—including, as in Clause 26, the power to intervene and to change remits.

The noble Lord’s amendments maintain the independence that the CQC—and other regulatory bodies—need to be able to inspect and make rulings without fear of favour or influence from politicians, while ensuring that the CQC must consult the Secretary of State when it revises indicators of quality for the purposes of assessment. That seems to me to provide the requirement for the CQC and the Secretary of State to engage in dialogue, but without the political intervention outlined in Clause 26(2) and (5).

Can the Minister explain why the Government feel the need to remove the independence of the CQC—whether this is an issue of management, as the noble Lord, Lord Lansley, said—and how giving the Secretary of State these powers can maintain the independence of a regulatory body?

Baroness Merron (Labour)

My Lords, it is essential that we get the arrangements for the Care Quality Commission right throughout the Bill, and I am grateful to the noble Lord, Lord Lansley, for trying to do that through these amendments. If the health and social care provided is to be of the highest standards, we must ensure, through the powers of scrutiny and review in your Lordships’ House, that we enable the watchdog to have the proper tools and framework to achieve that, so I support the amendments.

As the noble Baroness, Lady Brinton, emphasised, this is about putting the responsibility in the right place to ensure that a key inspectorate can do an independent job and support proper integration and delivery. I hope the Minister will accept the good sense in these amendments.

Baroness Altmann (Conservative)

Can I briefly ask my noble friend whether part of the thinking behind the current wording might be that the remit of the CQC may need extending? For example, when it comes to private operators of social care, the CQC currently does not have the power to look at the financial stability of those operators. Is this provision perhaps based on the thought that the Secretary of State may need to widen the remit and powers of the CQC? If not, we will be returning to this at some point.

Earl Howe (Conservative)

My Lords, I thank my noble friend Lord Lansley for bringing this debate before the Committee. He has made some worthwhile points but I hope to be able to explain why I think his amendments should not be pressed.

My noble friend Lady Altmann is not quite right in what she suggested was the intention of Clause 26. Clause 26 will allow the CQC to look across the integrated care system to review how integrated care boards, local authorities and CQC-registered providers of health, public health and adult social care services are working together to deliver safe, high-quality and integrated care to the public. That will include the role of the integrated care partnership. These reviews serve several functions. They will provide valuable information to the public, help drive improvement, and review progress against our aspirations for delivering better, more joined-up care across the system.

These amendments would remove the requirements on the Secretary of State to set and approve the priorities for these reviews. They would also remove the Secretary of State’s ability to direct the CQC to revise the indicators of quality that it will determine for these reviews. Instead, the amendments would add a requirement on the CQC to consult on those indicators with the Secretary of State, prescribed persons and other persons considered appropriate.

I entirely see where my noble friend is coming from as regards the CQC’s independence, but I must tell him that we have thought about this issue very carefully and we think it is right that the Secretary of State, who is accountable to Parliament, should have the flexibility to set the overall strategic direction of these reviews, with priorities and objectives. That is not an open-ended facility. In the other place, we accepted an amendment to develop this further by making it clear that the priorities set by the Secretary of State must relate to leadership, integration, and quality and safety. The amendment would remove that certainty.

As I have already mentioned in previous debates, there will be quite a range of different forms of accountability and oversight within the system, including NHS England’s role in overseeing ICBs. As a result, we think that the Secretary of State should play a strategic role to ensure that the CQC reviews complement the other oversight and accountability mechanisms. This will be achieved, in part, through the Secretary of State’s approval of the quality indicators. To provide my noble friend with an analogy, we believe, as I am sure he does, that there is a proper role for the Secretary of State in setting the strategic direction of NHS England. He does this, of course, through the mandate.

Finally, the drafting of this clause is not an accident. It is drafted deliberately to protect the independence of the CQC in how it operates, while also encouraging consultation and collaboration. It will allow the CQC to develop its approach in collaboration with NHS England and other partners in the system. The CQC is already intending to develop its approach to these reviews co-operatively and is able to consider a wide range of views in doing so. We do not think it is necessary to require it to consult.

I hope this has given my noble friend some reassurance as to why we have taken the approach we have and, for these reasons, I ask him to withdraw his amendment.

Lord Lansley (Conservative)

I am grateful to my noble friend for that explanation, which, I am sorry to tell him, wholly fails to provide reassurance. First, he was wrong, in the sense that he maybe implied that my amendments would have removed the Secretary of State’s requirement to approve the indicators on which the commission chooses to base its reviews. That is left in at new Clause 46B(4)(b), so the approval of the Secretary of State for the indicators would remain. What is being taken out by my amendments is the requirement for the Secretary of State to set objectives and priorities. I am afraid that everything that my noble friend said went to support my view that there is an erroneous perception on the part of the Government that the CQC must be turned into an integral part of the management of the NHS and the integrated care system. That is simply not the case.

I am grateful to the noble Baroness, Lady Brinton, for her support. I quibble with her slightly in a pedantic way. We should not talk about the CQC as just another regulator; it is the inspectorate. In my experience, inspection should never be regarded as a substitute for management. Quality is integral to the management of the service. The CQC is there to determine and review whether that quality is being achieved, which is why I am perfectly happy for the Secretary of State, and indeed others, to be consulted and for the Secretary of State to approve the indicators of quality that the CQC arrives at. Frankly, however, for the Secretary of State to go further and start to prescribe the way the objectives of the CQC are set in this way is directly at odds with how the CQC reviews and reports on other NHS bodies. I can see the drift of this. If we accept it, we will end up with the CQC being told by the Secretary of State what its indicators of quality are for every NHS body and setting objectives and priorities for the CQC right across the board, which is completely at odds with the independence of the CQC.

I shall make one final point. I am grateful to my noble friend Lady Altmann. Exactly the same argument applies to Clause 137, although I have not tabled amendments to it. It creates the CQC’s additional scrutiny and performance assessment of social care functions. We should therefore come back to precisely the point that she is talking about, as she suggests.

I hope my noble friend the Minister will take my point and that we might have further conversations between now and Report. However, I have to tell him that it is not just me who raises these points; I have been asked by representative bodies within the NHS to do so. We should take them seriously and hope that between now and Report we might see whether there are better ways to structure Clause 26 to secure both the Government’s objectives and what the NHS would expect to happen. I beg leave to withdraw the amendment.

Amendment 162A withdrawn.

Amendment 163 not moved.

Baroness McIntosh of Hudnall (Labour)

We come to the group beginning Amendment 164. The noble Baronesses, Lady Brinton and Lady Masham, will be contributing remotely to this debate.

Amendment 164

Baroness Wheeler (Labour)

My Lords, Amendment 164 heads this wide-ranging group and probes how the proposed Care Quality Commission rating system for ICBs’ work in practice, with a particular focus on rare and less common conditions, although this debate is more broadly relevant to all aspects of the CQC’s role.

Amendments 178 and 240 from the noble Lord, Lord Sharkey, to which I have added my name, also relate to people with rare diseases and their access to innovative medicines and medicinal products, and the general need for awareness-raising about those conditions among health and social care staff. I remind the Committee of my role as vice-chair of the Specialised Healthcare Alliance. The noble Lord will speak to those amendments later.

The group also covers amendments on wider care and safety issues that impact on patients, including ensuring that liothyronine T3 is available to patients when it is prescribed by a doctor and the regulation of healthcare and associated professions. This includes safeguards to apply under the Secretary of State’s power to alter the professional regulatory framework; protecting the use of the title “nurse”; hospital food standards for patients and training for staff; reviewing the surgical consultants’ appointment process; and licensing aesthetic non-surgical cosmetic procedures in registering cosmetic surgery practitioners.

The noble Lords who have their names to these amendments will speak to them, so I will leave them to it and concentrate on my rare disease issues and the matters that our Front Bench team have added their names to. Returning to the CQC, and following on from the previous debate on Clause 26, on the amendment tabled by the noble Lord, Lord Lansley, regarding the role of the Secretary of State in setting objectives and priorities, overall, we welcome the extension of the CQC’s remit to ICBs but now need to understand how it will work in practice.

As it stands, the Bill establishes an overarching framework under which the CQC will need to determine for itself the quality indicators against which it will assess ICBs. My amendment raises the issues about the quality indicators relevant to those with rare and less common conditions. If the purpose of the rating system is to protect patients, it must help to ensure that national standards of patient care, where they exist, are being met. Under the NHS’s plans to jointly commission or delegate commissioning responsibility for specialised services to ICBs, set out in NHS England’s Integrating Care paper, an important assurance given is that specialised services will

“continue to be subject to consistent national service specifications and evidence-based policies determining treatment eligibility.”

Will the CQC ensure that services organised by ICBs are organised in line with these national specifications?

Moreover, people with rare diseases are concerned that if services are to be commissioned in some way by ICBs in future, rather than just NHS England, their voices may be lost. NHS England’s specialised commissioning team meets regularly with representatives of the rare disease community, including the SHCA, and it is important that ICBs can hear their views too. How will this happen and how will the CQC rating system act to ensure that this happens?

Finally, one of the key asks of patients with rare diseases to help deliver continuity in their care is that they have access to a named clinical nurse specialist, which is commonplace for patients with more common conditions. That continuity of care is an important marker of quality. Will the CQC rating system help to deliver it?

Beyond these questions are broader ones. If the bulk of the CQCs work will continue to focus on inspecting providers, can the Minister explain how it will ensure that its ICB ratings are not unnecessarily duplicative, given that providers will form part of ICBs? Also, the CQC looks at whether services are safe, effective, caring, responsive and well led. Given that the first three of these should continue to be the primary concern of those providing care, rather than of the ICBs organising it, how will the CQC ensure that the new rating system clarifies rather than dilutes this accountability? How will the CQC’s work align with the wider performance management of ICBs undertaken by NHS England? How specialised services will operate is a complex area and I am happy for the Minister to write to me on some of the specifics of my questions.

As I said, I will speak briefly to other amendments in this group, to which Labour Front-Benchers have added their names. Amendment 243, tabled by my noble friend Lady Merron, covers the important issue of the protection of the title “nurse”, and is supported by three respected medical and healthcare professionals whose contributions I look forward to. The recent Health Service Journal survey found hundreds of roles that do not require Nursing and Midwifery Council registration but use “nurse” in the job title. While “registered nurse” is a title protected by the NMC, “nurse” is not. The term may be used by anyone in the UK to offer professional advice and services, and people with no nursing qualifications or experience, or who have been struck off the professional register, may use it.

Obviously, this is worrying and even dangerous—a dangerous trend which potentially compromises patients’ health. What progress is being made on the Government’s review of healthcare professional regulation following their consultation last year? Surely we must follow the example of other countries, such as France and Australia, in giving the consistently most trusted profession in the UK the recognition and protection that it deserves.

My noble friend Lady Thornton has added her name to Amendment 258, from my noble friend Lord Hunt, to the welcome new Clause 145, on hospital food standards. It underlines the importance of investment in the food served to patients in hospital and other care and treatment settings. It is welcome because it specifies food quality and standards and stresses the importance of recognising staff skills, experience and training, as well as ensuring investment in NHS kitchens and catering equipment to ensure that the highest standards can be maintained.

On Amendment 266 from my noble friend Lady Merron, we seek to give the Secretary of State power to introduce a licensing regime for aesthetic non-surgical cosmetic procedures and to introduce an offence of practising without a licence. This area is crying out for regulation. The Department of Health’s own report has said that non-surgical interventions which can have major and irreversible adverse impacts on health and well-being are almost entirely unregulated. We fully recognise that this is also a highly complex policy area. However, I understand that noble Lords concerned about this issue had constructive and positive discussions yesterday with the Minister, and I look forward to the Minister updating the House on the scope and discussions of the Government’s ambition in this important area.

Finally, I offer my strong support for my noble friend Lord Hunt’s Amendment 176, which seeks to ensure that the general powers of the Secretary of State to direct the functions of NHS England include ensuring that when T3 is prescribed to patients with hyperthyroidism, the drug is made available to them. My noble friend rightly raises this issue at every opportunity, and I hope the Minister will have a bit of good news for him today and tell us that some real progress has been made. It is clear that many thyroid patients would benefit hugely from the declassification of T3 as a high-cost drug, back to a drug that is routinely prescribed in primary care. It is much cheaper now, and the many patients who were taken off the drug and continue to be denied it need to have it restored. The Government must ensure that the now updated NICE guidelines which reflect this new position are implemented consistently across the new NHS structures, rather than repeat the record of the nearly 50% of CCGs which failed to ensure that the drug is properly prescribed.

I will leave it at that, and I look forward to the debate.

Baroness McIntosh of Hudnall (Labour)

I remind the Committee that both the noble Baronesses, Lady Brinton and Lady Masham, will be contributing remotely. I call the noble Baroness, Lady Brinton.

Baroness Brinton (Liberal Democrat)

My Lords, I have signed two amendments in this very wide-ranging group. The first, in the name of the noble Lord, Lord Hunt, is Amendment 264 on the appointment of surgical consultants. As the noble Baroness, Lady Finlay of Llandaff, said in your Lordships’ House recently, 48% of advertised consultant posts last year went unfilled. Given our discussions about the workforce earlier this week, we need as many posts filled as possible and to remove any bureaucratic barriers to so doing.

Part of the problem at the moment is that trusts are having difficulties establishing appointment panels which can make these consultant appointments. Currently, the rules are too tightly drawn in the National Health Service (Appointment of Consultants) Regulations 1996 and the subsequent 2005 guidance. The members of all the royal colleges across the UK have a wealth of expertise, but the current legislation says that only members of English royal colleges can help trusts fill their appointment duties. In its helpful briefing, the Royal College of Surgeons says that the Royal College of Emergency Medicine, the Royal College of Physicians and Surgeons of Glasgow and the Royal College of Physicians of Edinburgh are excluded from being eligible to join these panels. This amendment would be a simple remedy and speed up the appointment of much-needed consultants, and I do hope that the Minister can agree to it.

I have also signed Amendment 266 in the name of the noble Baroness, Lady Merron, on the urgent need to ensure that practitioners undertaking non-surgical aesthetic procedures such as lip fillers, injectables, thread lifts, semi-permanent make-up, laser treatments, piercings and tattoos are properly trained and licensed. These treatments are easily available to members of the public, but without the safeguards required when being carried out in the health sector. I am afraid that we see daily in the press and media reports on the many problems when treatments go wrong, which can include infection, disfiguration and burns, among other serious issues. When treatments do go wrong, it is usually the NHS that has to pick up the pieces, so I believe it is very much in the interests of the Department of Health and Social Care to accept this amendment.

The signatories to this amendment have been working with the Chartered Institute of Environmental Health, alongside a coalition of public health organisations and industry representatives, so that we can make sure that a licensing scheme can be introduced for all non-surgical aesthetic procedures. This will enable the setting of appropriate standards, a level playing field for practitioners and, importantly, protect consumers in this sector.

Baroness McIntosh of Hudnall (Labour)

I call the noble Baroness, Lady Masham of Ilton.

Baroness Masham of Ilton (Crossbench)

My Lords, I shall speak to Amendments 178, 266 and 293. Amendment 178, which was tabled by the noble Lord, Lord Sharkey, is important for people with rare and less common diseases. The amendments could be a lifeline for people who have rare conditions who use products that may be the only substances that work. There is an enormous selection of rare conditions. It can be a desperate situation when some medicines are developed but take a long time to be given the all-clear by NICE. Some medicines are not available in England on the National Health Service but are available in other countries, sometimes even in Scotland. That is devastating and frustrating.

I support Amendments 266 and 293, on the cosmetic surgery industry, which must be made safer. It is extraordinary that this business is only partially registered. Many people who have such a procedure take for granted that the practitioner will be registered and fully insured. There have been some disastrous results when things go wrong with a beauty procedure. I know of some plastic surgeons who work only in the National Health Service, as they do not want to be tarred with the same brush as uninsured cowboys. Amendments 266 and 293 deal with a wide selection of cosmetic procedures, some of which are psychologically important to many people. There is wide interest in making this trade safe and getting it registered. I hope the Minister realises that this is an important matter that needs putting right.

Lord Hunt of Kings Heath (Labour)

My Lords, I have Amendment 176, the second amendment in this group, and two other amendments. I shall start with Amendment 176 which is concerned with the treatment of thyroid patients who continue to be denied liothyronine, otherwise known as T3, as the most appropriate treatment for them. For some patients, the standard treatment is not effective. T3 has proven to be a much better treatment, but tragically, a few years ago the manufacturers grossly inflated the cost of T3 by a massive 6,000%. Understandably, NHS England and its associated prescribing advising machinery strongly discouraged the use of the drug and, as a result, many patients had T3 withdrawn and suffered quite considerably or had to fund it privately or source it from abroad. Happily, the price of T3 has come down by 75%, although it could go down further, but I believe it is no longer categorised as a high-cost drug.

The problem is that clinical commissioning groups still treat it as a high-cost drug, so the situation is still very difficult for patients who need it—those for whom the standard treatment is not appropriate. The current guidance states that T3 can be prescribed to patients who have unresolved symptoms on the standard treatment if it is initiated or confirmed following a review by an NHS consultant endocrinologist. A statement in July 2021 restated NHSE guidance, but it has not been followed by clinical commissioning groups. A survey done recently by UK thyroid charities, to which I pay huge tribute, says that 44% of CCGs have not fully adopted the national guidelines or are wrongly interpreting them.

What are we to do? What is the situation here, where we have clear guidance that is not being followed? This goes back to our previous debates about the various mechanisms being brought in to ration treatments, against national guidance or technology appraisal advice from NICE. It is the same issue. I am not expecting the Minister to issue a direction but I am expecting him to tell CCGs and, in future, integrated care boards to get off their backsides, start implementing the guidance properly and realise that this is no longer such a high-cost drug. I appeal to him to do something about that.

I also hope that the Minister will do something about hospital catering. I confess to your Lordships that I am president of the Hospital Caterers Association, where I work very closely with some great professional staff who have to work with their hands tied behind their back. Often they do not have the resources to provide the high-quality food that everyone wants and expects.

During Covid we saw in many local NHS facilities a determination to do everything possible to improve nutrition for both patients and staff. Miraculously, hot food was made available to staff overnight, which, as noble Lords know, seems to have been beyond the capacity of the NHS for many years. I do not know why I am looking at the former Chief Nursing Officer as I say this; I think it is an appeal for support.

This clause is highly welcome as I believe it will lead to higher standards, but my amendments would enable the caterers to deliver on them. The first key point is this: they need the resources to be able to do it. The amount of money spent on hospital food per day at the moment is simply not sufficient. Secondly, we need more training for staff. The training programmes have disappeared, and we need to get them back in to give staff the opportunity to show what they can do. Thirdly, we need to make sure that NHS trusts and foundation trusts are fully on board with bringing forward these regulations. There is no doubt that the efficiency programmes have taken their toll on the budgets for hospital catering and that, equally, the old-style national training schemes fell away and have not been replaced. The pay grade of qualified chefs and cooks needs to be reviewed to reflect the importance of their role. This issue is important in terms of the standards of food and nutrition for our patients and for the well-being of our staff.

My final amendment in this group is Amendment 264. What links all these amendments is that we need more consultants appointed—a small effort to enable us to improve the efficiency of the system. I remind the Committee of my GMC connections in relation to this. The amendment would add the Royal College of Surgeons of Edinburgh and the Royal College of Physicians and Surgeons of Glasgow, and their associated dental faculties, to the colleges that may be involved in the appointment of NHS consultants. My amendment was inspired by the Royal College of Surgeons of Edinburgh, which noble Lords might be surprised to learn has an office in Birmingham because many consultants who work in the English NHS are members of the Scottish colleges.

There seems to be a lacuna in the current regulations. According to the National Health Service (Appointment of Consultants) Regulations 1996 and subsequent guidance issued by the department in 2005, only the Royal College of Surgeons in England is permitted to review surgical consultant job descriptions and send a royal college representative to the advisory appointment committees when it comes to the appointment of consultant surgeons. Other elements of my amendment apply to the appointment of physician clinicians, and the Royal College of Physicians of Edinburgh and the Royal College of Emergency Medicine are also supportive. Although the process and guidance apply only to NHS trusts, foundation trusts are encouraged to follow it.

The Minister has yet to accept any amendment to the Bill. The usual line from the Government is, “We will do this when legislation is available to do so.” Here is a great opportunity for the Minister, as we are here on day 6 of Committee, to get up and say that he is going to accept my amendment.

Baroness Barker (Liberal Democrat)

My Lords, in following the noble Lord, Lord Hunt, I declare an interest as the patron of the National Association of Care Catering, a position that I took over from the noble Baroness, Lady Greengross. I admit that, when I had this great honour thrust upon me, I had little idea what I was getting into—and I have discovered a world of highly dedicated, professional people whose contribution to the health of the nation is very much overlooked. I managed to attend their national conference in Nottingham last October, and I have to say that it was one of the most harrowing afternoons I have spent, as they talked about what they had gone through as the people who supply catering not only in hospitals and acute hospitals but in care homes, as well as doing meals on wheels.

I will pick up one point that the noble Lord, Lord Hunt, made, on training. He is absolutely right that this area has suffered a great deal because of various changes not just to training in the NHS but to the training in higher education. We do not have a recognised qualification in care catering in this country, yet these are people who have to produce food for people who have dysphagia, multiple food intolerances and dementia, people who quite often are suffering from malnutrition when they come into hospital, and people who have allergies and often suffer from dehydration. The people who have worked in this field, and some of them have worked in it for many years, suffer a deep sense of frustration, which is that when young people in school or college show an aptitude for or a willingness to go into the world of catering, they are directed towards restaurant catering, because that is where the teachers and lecturers think the money is to be made. Actually, catering for people with difficult medical conditions is a lot more complicated.

I say to the Minister that I am also really impressed by the specialist companies that work in this field—those that produce specialist menus and enable people to order ingredients for complicated menus in complicated settings, as well as those that manufacture cutlery and crockery and vessels that can be used by people whose interaction with that sort of thing is hampered. These can bring a dignity and focus to something that is much overlooked—but talk to dieticians and you will increasingly understand the importance that food plays in maintenance of health and recovery.

I do not know whether or not this will make it into the Bill, but will the Minister go back to the department and ask whether his officials might meet some of the people who do a remarkable and much overlooked job, day in, day out, and who these last two years, perhaps more than anybody else in the NHS, deserved the clap, if only people knew what they had done?

Baroness Fraser of Craigmaddie (Conservative)

My Lords, in this rather large group of amendments, I shall take us from catering to my Amendment 242 on professional regulation. I thank the noble Baroness, Lady Finlay, for adding her name. I draw your Lordships’ attention to my registered interests, in particular as chief executive of Cerebral Palsy Scotland. I am involved with the employment of regulated allied health professionals.

Clause 142 gives the Secretary of State far-ranging powers to alter the professional regulatory landscape, with the potential to make significant changes to how certain health and care professions may be regulated, including the power to remove professions from, or bring professions into, statutory regulation.

The UK model of regulation for healthcare is rigid, complex and needs to change to better protect patients, to support our health services and to help the future workforce meet future challenges. The case for reform has been acknowledged.

Whether a health and care profession falls under regulation is a major decision affecting not only the professions themselves but employers, patients and service users who place their trust in those professionals. My Amendment 242 is a probing one. I want to explore some of the issues that will be particularly important for the Government to consider as and when they might seek to use these extended powers.

I want first to thank my noble friend the Minister and the Bill team for the time they have taken so far to discuss the issues around my amendment. We are all agreed on the importance of encouraging greater collaboration between regulators, with the ability to share data and intelligence, but I remain to be convinced that the legislation is being used to reduce regulatory silos, which is crucial to reducing regulatory failures in the future.

I want to be clear that I am not advocating for a single super regulator, which would be a step in the wrong direction, not to mention complicated, disruptive and expensive. I would rather harness the best elements of professional regulation and give the regulators the tools to work more closely together and share best practice more consistently.

I accept that work is being done in the department on various regulatory reform initiatives. These are all important, but it strikes me that they are all focused on individual regulators and amend specific operational issues, rather than looking at the landscape as a whole and what could be achieved.

We have sadly seen all too many reviews and inquiries which have identified regulatory silos as a key factor in why something went terribly wrong. My noble friend Lady Cumberlege’s First Do No Harm report highlights the issue starkly, but the Paterson inquiry, the Sir Robert Francis report on Mid Staffs, the Shipman inquiry and others have all underscored the value of greater collaboration between regulatory bodies, sharing data and intelligence as well as adopting shared professional standards. Reducing and removing silos is also good for professionals and employers, with benefits in terms of intra-professional learning and for professional and patient safety.

I am grateful to the Health and Care Professions Council for its briefing, but I was concerned to note something which regulators have stressed to me: that due to their tightly defined duties, they have often been forced to resort to informal memorandums of understanding to try to make the system work better. That is piecemeal and inefficient— frankly, I would be extremely disappointed if the Minister in his response was to rely on such MoUs to fix the issue.

Do not the powers in this Bill offer a chance to look at things differently: a whole system regulatory approach rather than a set of silos? Amendment 242 identifies some principles and considerations that I believe the Government would find beneficial in developing this more collaborative landscape.

Maintaining regulatory independence is crucial. The Government have rightly recognised this in other legislation recently, but I would welcome confirmation from the Minister that this remains a cornerstone of any future regulatory reform proposals. I would be grateful for reassurance that no regulatory reform would be undertaken by the UK Government without working with the devolved Administrations to ensure that it worked for all parts of the UK.

I particularly want to highlight the benefits of multi-profession regulation, which, as the CEO of an organisation that relies on a range of expert allied health and care professionals registered with the HCPC, I see at first hand, supporting improvements across professions that are increasingly interconnected. As the Minister is aware, the HCPC regulates 15 professions, so is able to utilise common frameworks and outcome-based standards. This approach could, and should, be spread among all the professional regulators.

This is particularly important as the Government, NHS England and NHS Improvement seek to create a more flexible workforce with an ability to move between professions, work as multidisciplinary teams and support career progression. From my own experience, I know that this is positive, but we need our regulatory system to keep up with innovations in delivery. Can my noble friend the Minister therefore tell us about how we can harness the benefits of multi-profession regulation and how he anticipates this will influence the Government’s thinking in terms of reform? Collaboration and the development of a system-wide approach to overcome fragmentation and silos is critical to the future success of regulation. It is an enabler of better care, and a collaborative structure would generate considerably higher and richer levels of data.

Finally, this holistic approach would offer an opportunity to create consistent criteria for making decisions about which professions may be brought into or taken out of regulation. Could the Minister put it on record today that the issues in the amendment are principles that would govern the future use of the powers within Clause 142, that they are all principles that the Government are actively considering and that no decisions on regulatory change would be taken if the criteria set out in this amendment were not met? Once again, I thank him and his team for his engagement so far, and I look forward to his response today. I hope we can continue discussions between now and Report.

Lord Patel (Crossbench)

My Lords, I rise to speak to Amendment 243 in the name of the noble Baroness, Lady Merron, and Amendment 264 in the name of the noble Lord, Lord Hunt of Kings Heath.

Yesterday I was chastised—wrongly, in my view—for speaking at length. Such boldness requires training in speaking up, confidence in being right and using authority. The comments came from a government Whip, who happens to be a registered nurse. As a doctor, I am used to that. When a nurse speaks up, patient safety improves, health equity improves, collegial relationships are stronger—again, as a doctor I can vouch for that—and healthcare systems improve. This is because of their training. Not recognising legally the status that the title of “nurse” brings to those that are highly trained and qualified and on a nursing council register is wrong.

We all know what a nurse is; a nurse is highly trained, highly competent, can do the job well and is on a nursing register. Anybody else is not a nurse. It is right, therefore, that we recognise this and give it a legal status. Furthermore, the NHS and health providers should not employ anyone as a nurse who does not meet the above criteria. I understand that last year there were 195 advertisements for nurses in the NHS which did not say that the qualification of being registered was necessary. In my view, that is wrong. I strongly back this amendment, and I look forward to the contribution of my noble friend Lady Watkins.

Turning to Amendment 264 on the appointment of consultants in surgery, I am a fellow of the Royal College of Surgeons of England, the Royal College of Surgeons of Edinburgh and the Royal College of Physicians and Surgeons of Glasgow, so I speak on behalf of all surgical colleges. Let me give your Lordships an example: there is a surgical post empty in Birmingham. A highly qualified person, who was well-trained in Scotland and holds a fellowship of the Royal College of Surgeons of Edinburgh, is a key candidate for application but cannot be appointed because the Royal College of Surgeons of England cannot provide an assessor. On the other hand, there is a surgical vacancy in Glasgow, and the top candidate is a fellow of the Royal College of Surgeons of England but can be appointed without a Royal College of Surgeons of England assessor being there. That is a total anomaly.

A person can be appointed who is fully trained in Scotland, is a fellow of the Royal College of Surgeons of Edinburgh, works in Cambridge, applies in Cambridge, but you cannot have an assessor from the Royal College of Surgeons of Edinburgh. In all other specialties—the Royal Colleges of Obstetricians and Gynaecologists, of Ophthalmologists, of Radiologists, of Psychiatrists, of Anaesthetists, and in public health—the assessor can come from any part of the United Kingdom. This anomaly can be stopped very easily. I agree with the noble Lord, Lord Hunt of Kings Heath, that it is not a big deal; just change it in legislation. I do not know who opposes it.

Baroness Watkins of Tavistock (Crossbench)

My Lords, it is a pleasure to follow the noble Lord, Lord Patel, on the term “nurse”, which is protected in law at the moment only for those who are a “registered nurse”. This means that anyone can describe themselves as a nurse, as the noble Baroness, Lady Wheeler, outlined. They can even describe themselves as a nurse if they have no qualifications or experience—or, perhaps more seriously, have just been struck off the register. As somebody who was a member of the forerunner to the Nursing and Midwifery Council, I can say that we do not strike people off the register lightly, so the risks of such people being at large and describing themselves as nurses are serious. For this reason, a petition was created calling for the title “nurse” to be protected further in UK law.

In the initial response by the Government to the petition, recognition was given that the protection of professional titles

“provides assurance to the public that someone using that title is competent and safe to practise.”

The response references a consultation by the Department of Health and Social Care on professional regulation, Regulating Healthcare Professionals, Protecting the Public. In the Nursing and Midwifery Council response to this consultation, the nursing regulator recognised issues around the limitations of “nurse” not being a protected title and said it did not think that its current powers are sufficient,

“given that they are primarily based around titles that are not widely understood by the public or used by the professions.”

This amendment is designed to ensure that there are sufficient regulatory levers to be able to protect the public in the future.

Nurses on the NMC register find it difficult to understand why the Government are reluctant to protect the title. As part of the statutory regulations of the Health and Social Care Act 2012, it was mandated that registered nurses would be part of the clinical commissioning group governing body. In Regulation 11 of the National Health Service (Clinical Commissioning Groups) Regulations 2012, the CCG governing body is required to include at least one registered nurse within its membership. This created a statutory commissioning role for nursing leaders in England that will be lost should this not be required within integrated care boards’ executive membership. Please can the Minister explain whether guidance will include a recommendation that there should be a registered nurse as part of the executive team on integrated care boards?

Lord Kakkar (Crossbench)

My Lords, I support Amendment 264, in the name of the noble Lord, Lord Hunt of Kings Heath, to which I have added my name. In so doing, I remind noble Lords of my own interests, particularly as a fellow of the Royal College of Surgeons of England, a fellow of the Royal College of Physicians of London and an honorary fellow of the Royal College of Surgeons of Edinburgh.

This is a critical amendment, as the noble Lord, Lord Hunt of Kings Heath, indicated, strongly supported by my noble friend Lord Patel. Currently, the National Health Service (Appointment of Consultants) Regulations 1996, with additional guidance provided by the department in 2005, restricts membership of advisory appointments committees for consultants to certain royal colleges, as we have heard with the appointment of surgeons by the Royal College of Surgeons of England alone—and, indeed, for physicians by the Royal College of Physicians of London. This is an anomaly. The medical royal colleges across the United Kingdom are recognised in terms of the postgraduate training that they are able to supervise, the continuing professional development they are able to provide and, indeed, collaborate with regard to postgraduate examination which is required for provision of the certificate for the completion of specialist training. However, when it comes to the question of consultant appointment, there is this restriction.

Noble Lords might ask why it is important that this matter be dealt with. The provision by a medical royal college of a professional member to serve as part of the appointment process for a new consultant is critical. Those representatives provide expertise and insight with regard to the nature of the job description, the requirements for the individual post, and the assessment of individual candidates as part of the selection process on the day.

The regulations apply only to non-foundation trusts, but guidance provided in 2005 recommends that NHS foundation trusts follow exactly the same process and involve representatives on these advisory appointments committees. In addition, the Academy of Medical Royal Colleges has strongly encouraged that all consultant appointments follow these regulations and guidance. This means that, when it comes to the question of consultant appointment, only representatives nominated by the Royal College of Surgeons of England can serve.

This is creating a bottleneck in terms of appointment of consultants, and this is happening at a critical moment, when the NHS must look to make more and more consultant appointments to meet the increasing demands we are seeing—particularly with regard to long elective waiting lists—that attend surgical specialties and subspecialties in particular.

It is possible that NHS foundation trusts might take the view that this bureaucratic hurdle to finding members for advisory appointments committees from the royal colleges could easily be overcome by ignoring the guidance. Then, we would lose this critical element of expert professional input into the appointment of future consultants. That would really be a very unfortunate situation.

As we have heard from the noble Lords, Lord Hunt of Kings Heath and Lord Patel, this is a very easy issue to address. There is no objection, and it would send a very powerful signal, with regard not only to the importance of professional participation in the appointment of future consultants but to the recognition that, although health is a devolved matter, we recognise the United Kingdom as a single entity in so many questions for the provision of health and, in particular, the training and development of healthcare professionals and their ability to work across our entire country.

Lord Lansley (Conservative)

My Lords, can I just take us back to Amendment 266, to which I have added my name, before we lose sight of it? It was helpfully introduced by the noble Baroness, Lady Wheeler, and its purposes were explained very well by the noble Baroness, Lady Brinton.

I just want to add a bit of context, which I hope will commend itself in particular to my noble friend Lord Howe on the Front Bench, in that he and I tackled together the PIP breast implant problems that emerged in December 2010 and which led directly, subsequently, to us asking the distinguished first medical director of NHS England, Bruce Keogh, to undertake an inquiry. Since the report of that inquiry, we have made considerable progress. Most recently, noble Lords will recall that the noble Baroness, Lady Wyld, took through the Private Member’s Bill from Laura Trott in the other place to assist in the regulation of Botox treatment for under-18s.

The point is that there is still unfinished business. Amendment 266 relates to giving the Secretary of State the power to set up a licensing process for non-surgical cosmetic procedures—not through the CQC in this case, because the CQC regulates healthcare professionals, but almost certainly through the mechanism of asking local authorities to undertake a licensing process. It gives the Secretary of State all the flexibility that we have grown accustomed to legislation having to give them, but it does so in a way that enables the regulation that would be brought in using this power to be proportionate, being very clear that it should apply only to those activities that present a significant risk. It makes sure that it takes advantage, for example, of the national standards that have been put in place by the Joint Council for Cosmetic Practitioners. It would be very helpful in trying to mitigate the risks associated with non-surgical cosmetic procedures.

Amendment 293 in my name is a follow-up to a Private Member’s Bill that made no progress. It again follows Bruce Keogh’s report and looks to give the General Medical Council the legislative opportunity and requirement to bring forward a scheme to put surgeons who have a specialty relating to cosmetic surgery on to its specialist registers. With Amendment 293, we have the benefit of being able to do this by virtue of the recommendations in recent years from the Cosmetic Surgery Interspecialty Committee of the Royal College of Surgeons. It gives us an opportunity to give those who wish to undertake surgical treatments for cosmetic purposes the opportunity to see who is on the specialist register. All this relates to the safety of those undertaking cosmetic treatments, which is a large number of people; there is a large amount of activity and a significant need for the consumers of these services to have a degree of protection. I think we can make progress on that.

In the rest of this group, we have another opportunity to take action. My noble friend was right when she spoke about a more general approach. She will recall that, in April 2014, the Law Commission produced its recommendations on the regulation of healthcare professionals, so there is an opportunity to do something here. If we do not do it in this Bill, it would not hurt for the Government to tell us more about how they might make progress on the broader regulation, in addition to what is being proposed here.

I want to mention two other things. First, we had an earlier debate about access to innovative medicines. This is another opportunity for my noble friend to tell the Committee that NHS England is proceeding with its consultation on the implementation of the innovative medicines fund. Secondly, we do not need to repeat the short debate we had in Grand Committee not so very long ago under the auspices of my noble and learned friend Lord Mackay of Clashfern, who enabled us to present a lot of arguments about the future of NHS Resolution and clinical negligence within the NHS. We do not need to repeat that, but Amendments 178 and 297E would of course help us in that direction, not least by repealing the redundant NHS Redress Act 2006, which has never been implemented. With that thought, I pass the ball to the noble Lord, Lord Storey.

Lord Bethell (Conservative)

My Lords, I support Amendment 266 in the name of the noble Baroness, Lady Merron, and Amendment 293 in the name of my noble friend Lord Lansley for all the reasons that my noble friend just articulated. I will not repeat them as he put them so very well. However, I would say to the Minister that, coming from the innovation space, I can see that the technologies for both cosmetic surgery and non-surgical cosmetic interventions are improving all the time. There is an incredibly rapid pace of change. They are set to continue to get better and better, so the marketplace is getting more sophisticated and their popularity is also exploding. We have been briefed on evidence about the role of social media in promoting non-surgical cosmetic interventions in particular. This is exciting, because it is great that people have access to these interesting products, but also extremely worrying, because not all the surgeries and non-surgical interventions are successful. It is the right time for the Government to intervene, so that we have a register of cosmetic surgical practitioners and a much clearer regulatory regime for non-surgical interventions.

I am pro cosmetic surgery. As a young boy, I had an inherited condition of having very big, sticking-out ears, which my father had and my cousins and aunts have, and it was miserable. I had them pinned back and I am very grateful that that happened. It meant that I could be a much more confident person as I grew up. I am pro cosmetic interventions; if people want to use the benefits of medicine to improve their confidence in the way they look, I applaud that. However, standing next to my noble friend Lady Cumberlege, I am also aware of Bruce Keogh’s extremely good report and the very large number of interventions that have not gone well. I know that the Minister’s instincts are not to intervene unless absolutely required and my suggestion to him is that we have hit that moment. The marketplace is exploding and now is the right time to intervene.

Baroness Finlay of Llandaff (Crossbench)

My Lords, as I address Amendment 266, I should declare that I am a vice-president of the Chartered Institute of Environmental Health. I stress that this amendment has been supported by the Beauty Industry Group, which represents 10 industry organisations—two voluntary registers for cosmetic practitioners, the Mental Health Foundation and others.

There are currently significant gaps in our regulatory system. Environmental health and licensing professionals work at a local authority level. They inspect, register and license premises for a very limited set of procedures, such as acupuncture, tattoos and piercing. Even for these procedures, however, there are no nationally set training programmes or qualification requirements for somebody to practise. For the riskier beauty procedures, such as the injectables, there are only voluntary registers of accredited practitioners. They have some approved education and training but that is not mandatory.

That means that there are many unaccredited practitioners on the high street providing services to people directly with no checks. A licensing scheme, as outlined in the amendment, would provide appropriate qualification and competency standards for practitioners wishing to practise, which is key to improving safety. The amendment as drafted is an open power for the Secretary of State, so it is easily amended as new procedures come online and on to the marketplace. The weakness of existing legislation in the area is that it fails to cover many of the newer treatments that are now popular.

When things go wrong, it is the NHS that has to pick up the pieces. Infections, injuries, scarring, burns and allergic reactions from a range of procedures often all end up in the NHS, sometimes with people being hospitalised and disfigured. Injection of fillers—or botulinum toxins—into blood vessels can cause dying back of tissues as well as blindness when administered by people who really are not adequately trained and certainly not registered. That means that there is no recompense for people damaged by these practitioners, who have no medical insurance or qualifications. In addition, there are unauthorised advertisements that breach advertising standards. There are strict laws around prescription-only medicines such as botulinum toxin, but these advertisements seem to bypass those.

Among members of the public who have had cosmetic procedures, alarmingly, three-quarters were given no information about the product, volume, brand or batch number of whatever was being used and just under three-quarters were not asked anything at all about their psychosocial or mental health or any body image issues. It is a vast and complex area and there are gaps in regulations. We need a national framework of standards with qualifications that can be recognised, so that there is a clear badge for members of the public.

To briefly address Amendment 297, I suggest that it is not needed because dermatological surgery and plastic surgery are subsections of medical practice and already registered with the General Medical Council. This gets nearer to credentialling than to requiring a separate qualification. These are doctors. They are highly trained, they have gone through a recognised training programme and they have been often examined as part of their exit from their training in whatever procedure they are undertaking.

I remind the Committee that, in a recent letter from the right honourable Michael Gove, he said that he is considering a licensing scheme. I hope the Government will see that this amendment would allow such a scheme without tying the Government down, and I hope that they will accept it, as well as Amendment 264 from the noble Lord, Lord Hunt, for which I should declare that I am an honorary fellow of the of the Royal College of Physicians of Edinburgh and the Royal College of Emergency Medicine. I think the contents of the amendment would go wider than simply surgical procedures. The Royal College of Emergency Medicine was established as a separate medical college in 2008, but the guidance and regulations were written prior to that, so they are completely out of date for what is now emerging as a major specialty across medicine. That amendment would rectify a lacuna.

The last amendment I want to speak to is Amendment 242, so clearly introduced by the noble Baroness, Lady Fraser. We need clear and transparent criteria for deciding which professions are regulated, and how the Government use their powers and the principles behind the criteria. Amendment 242 would provide such criteria. As we have discussed in the context of a previous Bill on domestic abuse, titles such as “therapist”, “psychotherapist” and “counsellor” are not protected. Courses in these subjects are unregulated, their quality varies widely and they are not registered anywhere. Charlatan practitioners can wreak havoc on people’s lives. The public have no idea that these people are not registered or regulated in any way. Even if serious concerns are expressed or complaints raised about them, they remain immune from investigation through the channels by which the health professions are regulated. I urge the Minister to look at that carefully.

Linked to this is the proposal that the title “nurse” should be protected, and I, for one, strongly support that. There is confusion in the mind of the public, and I recall one charitable sector provider that put all nurses and care assistants in the same uniform. That meant that patients and relatives were completely confused as to who was a trained nurse and who was a care assistant. They had no idea about what staff could and could not do and how much information they could give. Fortunately, the uniforms were changed fairly quickly. The public have a right to know that they are being looked after by a highly qualified, very skilled person—and that is a nurse.

Lord Borwick (Conservative)

Briefly, I support Amendment 176 from the noble Lord, Lord Hunt. I first declare two interests as a patron of thyroid charities, particularly the Thyroid Trust, whose leader, Mrs Lorraine Williams, has done great work on behalf of patients. I should also declare that I once suffered from Graves’ disease, with an unpredictably hyperactive thyroid gland. This may have been one of the few parts of my body that was hyperactive, but it was surgically removed and, ever since, I have taken daily levothyroxine. However, some patients cannot take levothyroxine but need liothyronine instead. It is a shame that some patients have been unable to get that drug when they need it so badly. I know that the NHS must control total drug costs, but the history of its control of that particular drug has perhaps not been perfect. The fault is originally that of the manufacturer, not the NHS, but it is patients who have suffered. The amendment of the noble Lord, Lord Hunt, would solve this problem.

Lord Sharkey (Liberal Democrat)

My Lord’s, I shall speak to Amendments 178 and 240, and I remind the Committee of my interest as chair of the Specialised Healthcare Alliance.

Amendment 178 deals with innovative medicines and medicinal products. The debate on this amendment is very timely, given the recent conclusion of NICE’s review of its methods and processes and the current consultation on the innovative medicines fund. Both the review and the IMF consultation are to be welcomed. It is clear that they will result in improvements in the system of assessing medicines and medicinal products, particularly in respect of analysing and addressing uncertainty and incorporating more real-world evidence into decision-making. However, it is also clear that both the IMF proposals and the outcome of NICE’s review are at risk of falling short of the hopes of many patients, clinicians and the life sciences sector more generally in a number of important ways.

First, there is still a lacuna in NICE’s approach to considering treatments for rare disease. For ultra-rare diseases—those affecting fewer than 1,000 people—NICE retains its highly specialised technologies process. For more common conditions—those affecting more than 25,000 people—NICE has its separate technology appraisal process. But for patients with rare diseases—those affecting between 1,000 and 25,000 people—there is no process, and so treatments for these patients have to be considered instead through the unsuitable technology appraisal process. This gap sets us apart from other countries, such as the more generous ASMR system in France and the AMNOG system in Germany for evaluating rare disease treatments.

It was therefore very disappointing to see that the case for the rare disease modifier was again rejected in NICE’s review. It was rejected on the grounds that society does not value treatments for rare disease more highly than those for more common diseases. Those representing rare-disease patients would contend that the fact is that these treatments are inherently costly. The Government accept this in relation to ultra-rare disease, so why do they not do so for rare disease treatments? I would be grateful if the Minister could address that specific question when he replies.

Secondly, NICE’s own consultation looked favourably on reducing the discount rate at which NICE assesses the future costs and benefits offered by a treatment, saying that such a change

“could make a particularly big difference to some treatments, like gene therapies.”

However, NICE has now said that this change would not be possible, due to the views of “system stakeholders”, and this has disappointed many people. When the Minister replies, I would be grateful if he could expand on what “system stakeholders” really means in this context. Who is NICE talking about and why did it assign conclusive weight to their views?

Thirdly, the system in England still fails to formalise the input of patients and clinical experts in the way that, for example, the SMC in Scotland does through its patient and clinical engagement process.

Finally, proposals for the innovative medicines fund now move far beyond the originally planned narrow focus on autoimmune and rare diseases. This causes some SHCA members to worry that rare diseases will get less attention than originally envisaged.

These proposals fall short of the hoped for bridge between the MHRA’s licensing process—which reforms are speeding up in some cases—and NICE’s reimbursement process. Without such a bridge, earlier licensing will not deliver benefits to NHS patients, and ultimately companies will lose interest in making bespoke licensing applications to the MHRA. The Government’s own figures—the life sciences competitiveness indicators, published by the Office for Life Sciences—demonstrate that it is already the case that the per capita uptake of new medicines remains lower and slower in this country than in comparable countries.

Our Amendment 178 suggests that the Government review the situation by the end of the year, when we will have a good half year of experience of the changes to NICE and the operation of the IMF, and when we will be able to see that the hoped for improvements have materialised. I hope that the Minister will consider this suggestion.

I now turn to Amendment 240, which seeks to probe the Government’s actions to improve awareness of rare diseases among healthcare professionals. There are more than 7,000 rare diseases, and it would clearly be impossible for every healthcare professional to receive training on every single one of them. However, as the Government’s rare disease framework notes, healthcare professionals can improve their awareness of rare diseases more generally, be more alert to considering them and be provided with the educational resources that help them recognise rare diseases in patients. Healthcare professionals can also be better supported to help signpost patients with rare disease to information about their condition and to help them understand it.

In a 2016 survey by Rare Disease UK, it was found that 70% of patients were not provided with sufficient information on their condition following diagnosis, and that 35% of patients given information did not understand the information that they were given.

More recent surveys demonstrated that these challenges continue. The Government’s national conversation on rare diseases in 2019 found that almost one in five people living with a rare condition reported that a lack of healthcare professional awareness of their disease was the number one challenge that they faced, and healthcare professionals themselves identified it as the second biggest challenge they faced behind only the well-known difficulties in obtaining an accurate diagnosis. I accept that healthcare professional regulators can do only so much to make improvements, but it would be helpful to understand from the Minister what steps they might be able to take to help better embed rare disease content in training frameworks.

Finally, there is a wider question of how the Government currently track progress in increasing awareness of rare diseases among healthcare professionals. How do the Government do that? I look forward to the Minister’s reply.

Baroness Meyer (Conservative)

My Lords, in speaking to Amendment 266, I shall not speak for long because everything has been said. The noble Baroness, Lady Finlay of Llandaff, explained the problem very clearly as did other speakers.

The only reason I want to speak is that in April last year I spoke in favour of the Private Member’s Bill introduced to this House by my noble friend Lady Wyld which sought to prevent cosmetic procedures being performed in England on people aged under 18 unless under the direction of a medical practitioner. The Bill was passed with cross-party and government support. As a result, children are now better protected. It is high time that we protected the population at large. When one hears of all the side-effects and that people can buy a product online and inject it into themselves or somebody else, it feels like the wild west, and the consequences can be quite dramatic, as we have heard. I very much hope that the Government will be able to support this amendment. This is not complicated and needs to be done quickly.

Baroness Pitkeathley (Labour)

I want to follow the noble Lord, Lord Sharkey, because I am former chair of the Specialised Healthcare Alliance. I shall speak very briefly in support of Amendments 164 and 178 in his name and that of my noble friend Lady Wheeler.

Every reorganisation of the NHS leaves patients who have a rare or less common condition anxious about how their particular needs will be assessed, how they will be met and even how they will be noted. It is sadly true that the rarer or more specialised a condition, the more it comes down to a postcode lottery whether the patient will be able to access care in spite of established national standards. Not only is it harder to access care, it is also harder for these patients to access the support groups or information networks which are vital when finding out the sometimes rare information about these conditions. The suggestion in Amendment 164 that the CQC assess the provision by ICBs of care for those with rare or less common conditions would provide the assurance that is so badly need.

Baroness Bennett of Manor Castle (Green)

My Lords, in part because I listened to the lecture with which we started this session but more because it is an old anecdote, I shall forbear from telling my hospital food horror story. However, I will pick up on the points made by the noble Lord, Lord Hunt, and the noble Baroness, Lady Barker, about hospital food and how hard people are trying to improve the situation. This relates to the answer the Minister gave me on Monday in Oral Questions. Of course, it is dependent on the budget that caterers have and the quality of the food that is available to them. I was pleased that the Minister then said that the Government are looking to tackle government procurement to improve the quality of vegetables and fruit. In terms of joining up the dots, that is a useful point to make.

On Amendment 243, I offer the Green group’s support and note that, having been in your Lordships’ House for only a little more than two years, I have debated a very similar amendment at least once before—I think it must have been on the Medicines and Medical Devices Bill. We have all seen briefings that are very much a cry from the heart from the nursing profession for this to happen. Surely we can get this into this Bill.

I mainly want to address Amendments 266 and 293 in the name of the noble Lord, Lord Lansley, to which I have attached my name. While I take the point of the noble Lord, Lord Bethell, that these procedures can be crucial to people’s well-being and enable them to feel more comfortable in their skin, I want to briefly address where these amendments have arrived from. A headline from the Sunday Times two weeks ago said that

“TikTok and Instagram have fuelled demand for nose jobs, butt lifts and boob implants”.

I was a sub-editor on the Times 20 years ago. Quite aside from thinking “What is the world coming to?” when I read that headline, it is important to stress how much pressure there is from social media, particularly on young people, to have these surgical and non-surgical procedures.

It is important to acknowledge that it is not just young people who are affected. We live in an extremely ageist society, and many older people, despite our shortage of labour in many areas, can find it difficult to get jobs, or at least jobs that fit with their qualifications. A survey from the American Aesthetic Surgery Journal found that 30% of people sought surgery after they had suffered discrimination. Ministry of Justice figures show that in 2020 there were 3,668 complaints about age discrimination at employment tribunals, and that was up from 2,112 in 2019. I am aware we are likely to hear from the Minister, “These amendments may be heading in the right direction, but we need more time. There are issues to think about before we do anything.” It is crucial to get action now on surgical and non-surgical issues.

Finally, last July’s report from the APPG on Beauty, Aesthetics and Wellbeing addressed the absence of regulation, and this particularly relates to Amendment 266. Picking up on the point from the noble Baroness, Lady Finlay, the report also called for mandatory psychological screenings to be implemented.

I would love to hear the Minister say “Yes, go ahead”, because there is a demand here for urgent action.

Baroness Watkins of Tavistock (Crossbench)

My Lords, I apologise to the Committee for omitting to say that I am a registered nurse on the NMC database. I think this is important in relation to Amendment 243.

Baroness Walmsley (Liberal Democrat)

My Lords, I will be as brief as I can. I have a few words about some of the amendments in this wide-ranging group.

Amendment 243 would protect the title “nurse”. I know from family members that the qualification of registered nurse is always hard won, the result of very hard work. It involves rigorous basic training, often followed by further training in a specialty such as mental health nursing or surgery. The title provides a high level of trust among patients and the general population, because we know that a nurse must be registered with the Nursing and Midwifery Council, or a different responsible body for dental or veterinary nurses. There should therefore be clarity about who can use the title, and it could be sorted out very simply by the Minister—I hope he will do it.

A further anomaly, which the Minister can easily sort out in his reply, is that of the appointment of surgeons. I hope he will remove that anomaly as well.

I commend the work of my noble friend Lord Sharkey on rare diseases. I will not repeat what he said about what is needed, but I hope the Minister can give him some assurance.

I strongly support Amendment 266 on the need for a register for those who practise aesthetic non-surgical interventions. I will not repeat what my noble friend Lady Brinton and others have said about the reasons for this.

Amendment 293 requires a special register for cosmetic surgery. It is important that we have an up-to-date, comprehensive and rigorous method of assessing and registering the qualifications of surgeons safely to carry out cosmetic surgery. The question is: how is that done? I have received a briefing from the GMC, which tells me that it does not support the creation of a separate register for cosmetic surgery practitioners. Instead, the GMC believes that its proposal to move to a single GMC register that includes all doctors, anaesthesia associates and physician associates, and special annotation with work to develop relevant credentials, will provide additional assurance beyond that which could be provided by a separate additional register.

We are told that something better is coming down the track and that the forthcoming regulatory reform programme is intended to rationalise and streamline registration across all the UK healthcare regulators, and will allow the GMC to deliver an accessible, flexible and discretionary registration framework for all registrant groups. That is why the GMC believes that that will provide greater flexibility to develop and amend registration rules and improve its ability to innovate. Given the rapid development of new spheres of medicine and practices, such flexibility could be advantageous.

I understand that the GMC is now developing credentials with royal colleges and health education bodies, and that the first group of those is led by one on cosmetic surgery, plus four other disciplines. So, while I heartily agree with the intention of Amendment 293, I ask the Minister: when will the regulatory reform mentioned in the GMC briefing be completed? When will Parliament be able to see it and, in the meantime, how can we be assured that the current system gives the assurance on patient safety that is required?

I too support the noble Lord, Lord Hunt, on hospital catering and I too will resist giving my anecdote.

Lord Kamall (Conservative)

I thank noble Lords for their contributions and for sharing their knowledge and expertise—and, in the case of hospital food, not sharing their tales of inadequate and unhealthy food. I will try to answer as many of the questions as possible but, given the experience of the noble Lord, Lord Patel, of being advised by a nurse Whip, I am keen to make sure that I do not suffer those same warnings, as it were.

On rare diseases, specifying requirements in the way proposed by the amendment would restrict the ability of the CQC to collaboratively develop its assessments of integrated care systems. However, the Government are committed to improving the lives of people living with rare diseases. The noble Lord, Lord Sharkey, rightly talked about the UK Rare Diseases Framework that we published in January 2021, which set out our key priorities for tackling rare diseases. England’s action plan will be published at the end of next month.

I have had conversations with some in the life sciences industry who are keen on the fact that we are focusing on rare diseases and extremely rare diseases, and see that as a positive. One of the things that we are trying to do across government is to make sure that we are seen as a hub for expertise in rare diseases and especially rare diseases. One of my predecessors as a Minister suffered from a rare disease. The momentum is still there in the department to make sure that we tackle the issue.

Also, the CQC, through its ICS assessment methodology, will seek to understand how system leaders are monitoring and meeting the needs of the local population, including those with rare diseases. We expect the CQC, in collaboration with system partners, to use its experience as the independent regulator of health and adult social care in England to develop an approach to those reviews. I know that noble Lords may be tired of hearing this but it is important that the legislation allows the CQC flexibility to do so.

On Amendment 240, while the Government have sympathy with the need to raise awareness, we do not consider it appropriate to put such a requirement into primary legislation. I hope I have reassured the noble Lord about our programmes and our push to raise the profile of rare diseases and extremely rare diseases. We prefer that all healthcare professional regulators require professionals to have the necessary skills and knowledge to practise safely, including awareness of rare conditions. It is the responsibility of the regulators to determine what specific role they should play in raising awareness of rare and less common conditions.

On—and I apologise if I mispronounce this—liothyronine and the power of direction, the NICE guideline on the assessment and management of thyroid disease, as the noble Lord acknowledged, does not recommend liothyronine for primary hypothyroidism. NICE states that there is not yet enough evidence that it offers benefits over levothyroxine monotherapy, and its long-term adverse effects are uncertain. If new evidence was to emerge, I am sure NICE would consider it.

In addition, we must be careful not to override NICE guidelines. But, given the concerns raised by the noble Lord, Lord Hunt, and my noble friend Lord Borwick, I would like a further conversation, if that is okay, to see what can be done in this area, as well as where it is appropriate for me to act and what conversations would be appropriate, given the noble Lord’s experience as a Health Minister.

On Amendment 178, we are committed to further strengthening the innovation metrics and to improving our understanding of how innovative medicines and these products are used in the NHS. Noble Lords will be aware that following the publication of the final report of the Accelerated Access Review, the Government established the Accelerated Access Collaborative—AAC—last year. In fact, last year alone we helped over 300,000 patients access proven innovations, resulting in 17,000 fewer hospital admissions and 140,000 fewer days spent in hospital.

As noble Lords are aware, we published our ambitious Life Sciences Vision, which laid out our priorities. We want to make sure that the NHS is seen as a partner in innovation and that research is embedded into everything the NHS does. I know that this has been raised in relation to other amendments. We are currently developing implementation plans for delivering on these commitments.

As noble Lords acknowledged, NICE is in the final stages of the review of its methods and processes, and is proposing a number of changes that will introduce real benefits to patients, including rare disease patients. The Government are also committed to developing an innovative medicines fund, which my noble friend referred to, and a consultation on detailed proposals for the fund closes on 11 February.

Finally, our rare disease framework outlines the key priorities for rare diseases in the UK over the next five years. One priority area is to improve access to specialist care, treatments and drugs.

On hospital food, although we recognise the expertise and declarations of the noble Lords who spoke, we believe that this amendment is unnecessary because the issues are already covered, either as part of the ongoing work to implement recommendations from the hospital food review or in the NHS food standards document, to be published in spring 2022.

The Government are supporting NHS England to implement the recommendations from the independent review. These recommendations cover a broad range of issues, including nutrition, hydration, healthier eating and sustainable procurement. It is important for me to learn more about this as a Minister, given what the noble Baroness, Lady Barker, said about many people not receiving the recognition they deserve. It would be appropriate, perhaps, for us to meet and follow this up.

In addition, the Government already have sufficient legal powers and obligations to enable them to consult on proposed food standards, and we have engaged with NHS trusts, the food standards and strategy group, and the NHS food review expert group through the NHS food review. We will continue to do all this.

On Amendment 264, the regulations already allow trusts to seek alternative members to contribute to the process. They can be from colleges such as the Royal College of Surgeons of Edinburgh, the Royal College of Physicians and Surgeons of Glasgow and the Royal College of Emergency Medicine. However, the Government agree that the changes proposed by noble Lords in Amendment 264 would potentially be advantageous —to put it that way—and we have undertaken to review the situation with officials.

The National Health Service Act 2006 stipulates that consultation with affected parties must be undertaken before any changes are made. Therefore, before we jump to it and agree, we are required to consult the relevant parties. It does seem a clear-cut case, but we are still under a duty to consult.

Turning to Amendment 266, I thank the noble Baroness, Lady Merron, for the meeting yesterday. Interestingly, we kicked around some of the issues and realised that this is not as simple as it might appear: where do you draw the line? The Government are committed to improving the safety of cosmetic procedures and ensuring that the regulatory framework allows consumers to make informed but safe choices. Patient safety must always come first. A number of noble Lords referred to the Private Member’s Bill from my noble friend Lady Wyld, which we were pleased to support for these reasons. The department wants to work with stakeholders to take this work forward in the most appropriate way, and we commend the work of the All-Party Parliamentary Group on Beauty, Aesthetics and Wellbeing in this area.

However, we must look at where you draw the line. When I have looked at studies from, for example, the United States, on structural racism and getting people from poorer backgrounds into work and them becoming entrepreneurs, an issue often raised is whether occupational licences are a barrier to people. In some states, you require a licence to braid hair. Where do we draw the line? Clearly, where there is a safety concern and where chemicals are used, but that is probably a more straightforward case. We have to make sure that it is not a barrier to people getting to work and is seen as part of structural racism.

On Amendment 293, I thank my noble friend Lord Lansley and others for mentioning the work commissioned from Sir Bruce Keogh. As many noble Lords will know, doctors who practice cosmetic surgery are regulated by the General Medical Council. I take the point made by the noble Baronesses, Lady Walmsley and Lady Finlay. I repeat that, to strengthen assurance, the GMC, in conjunction with the Royal College of Surgeons, is developing a cosmetic surgery credential. GMC-approved credentials formally recognise doctors’ expertise in specific areas of practice. The credential will aim to enhance regulation and patient protection by recognising surgeons who have the appropriate training qualifications. I do not have the exact deadlines here yet, but I can find out and write to noble Lords, probably in my write-around.

On Amendment 242, our proposed reforms will introduce a new duty on regulators to collaborate with one another and key stakeholders when making changes to how they regulate. There are many factors that we need to consider when bringing forward legislation, but the fundamental consideration must always be public protection. The professions protected in law need to be the right ones, and the level of regulatory oversight must be proportionate to the risks to the public.

The noble Baroness, Lady Wheeler, asked about the review of professional regulators. We have commissioned KPMG to carry out an independent review of the regulatory landscape. It submitted its report at the end of last year, and the findings are now being considered. Any use of the powers provided for in Clause 142 will be subject to consultation and the approval of both Houses.

To respond to my noble friend Lady Fraser, we are committed to bringing forward a programme to reform the legislative framework and professional regulators across the UK. There are various strands to the reform programme, and we are making progress. We have received over 500 responses to the consultation and officials are analysing them. We hope to bring forward legislation on the issue this year.

Given all that, and given the public consultation and other issues, I ask noble Lords to withdraw and not press their amendments.

Lord Patel (Crossbench)

My Lords, the Minister suggested that, to have any changes in the appointment of surgeons, the department would have to consult first. I assume that the only body it would need to consult is the Royal College of Surgeons, which I understand is sympathetic to the change. If that is the case, it is a simple matter, so can it not be consulted before Report?

Lord Kamall (Conservative)

If it is as straightforward as the noble Lord suggests, I will see if that can be done.

Baroness Wheeler (Labour)

My Lords, I thank noble Lords for their many expert and very informative contributions. It has been a fascinating debate on a number of issues.

On specialised care services and rare diseases, I note the Minister’s comments and thank him for some of his reassurances, but there were some issues that he did not cover, particularly in relation to my noble friend’s Amendment 178. However, I welcome the dialogue that is taking place on these issues, and the recognition of their complexity, and am very hopeful that that will continue. We will take stock to see if anything else needs to come back on Report. I also thank my noble friend Lady Pitkeathley for her support on this issue.

In the general debate, noble Lords will, I am sure, follow up on the points that they made, as the noble Lord, Lord Patel, just did. I thought the contributions of my noble friend Lord Hunt and the noble Baroness, Lady Barker, on the hospital food situation, really drove home the importance of this issue. We must make progress on it and move forward.

On the title “nurse”, strong support was expected and we certainly got it from across the House. I hope that progress can be made. The issue will not go away, as the Minister knows, and neither will the determination of my noble friend Lord Hunt to pursue the issue of the availability of T3 for thyroid patients. We hope that progress can be made on that, because again it is a situation that a must be addressed.

The noble Baronesses, Lady Masham and Lady Brinton, and other noble Lords made valuable points on the vital need for a licensing regime for non-surgical cosmetic procedures, again underlining the need for urgent, step-by-step progress, and demonstrating in particular why the current situation is unacceptable. Progress can be made. As the noble Lord, Lord Lansley, pointed out, it was seen in the recent Private Members’ Bill on Botox fillers. We need progress to be made, and steadily.

Finally, on the reference to when the review of the regulatory system will be completed—the noble Baroness, Lady Walmsley, also raised this—the issue was about timescales. We know there is a review. We are told that KPMG is on the case and has delivered its report, but we need timescales and action as soon as possible.

With those comments, I beg leave to withdraw my amendment.

Amendment 164 withdrawn.

Amendment 164A not moved.

Clauses 26 and 27 agreed.

Amendment 165

Lord Hunt of Kings Heath (Labour)

My Lords, my Amendments 165 and 166 are rather more focused than the last group. They are probing amendments, rather than me urging that Ministers take the specific wording of them.

One of the rather surprising characteristics of integrated care systems is that they are not defined in the Bill, although people talk about these entities all the time. The statutory parts are integrated care boards and integrated care partnerships, but much of the real power, decision-making and influence potentially lies with non-statutory groups, whose membership, governance and procedures are not regulated. These are placed-based partnerships, provider collaboratives or networks, primary care networks, or companies accredited to the health system support framework. My two amendments would put the first two of these non-statutory groups on a statutory basis. Place-based partnerships are described and supported by NHSE and the Local Government Association as the foundation of integrated care systems. I am very grateful to the policy research unit in health and social care systems and commissioning at the University of Manchester for its very helpful work on this.

In our debate on primary care, the Minister referred to his hope that integrated care boards would

“exercise functions through place-based committees”.—[Official Report, 20/1/22; col. 1852.]

It is pretty clear that many ICBs will delegate considerable responsibility to them. I can see the potential for that, but given their increased responsibilities, there are legitimate questions to be asked about how place-based committees are to be held to account. What are their governance arrangements? Who will serve on them? What are their leadership arrangements? What functions will they be allowed to carry out? The noble Earl, who I think is responding, may say that that is best left to local decision-making. I see that up to point, but rather like with ICB governance, surely some framework and safeguards need to be built around them.

A similar argument might be made in relation to provider collaboratives. Such collaboratives are essentially partnership arrangements involving two or more trusts or foundation trusts. Participation is mandated for trusts providing acute or mental health services. They are expected to be part of one or more provider collaboratives, with discretionary participation of other providers. Such collaboratives may form at supra-ICS level, may partially cover multiple ICSs and may cover multiple places. Additionally, providers may be members of multiple overlapping collaboratives. The collaboratives may contain acute or mental health members only, or may include wider membership such as community providers and primary care. It is anticipated that they will deliver systems’ strategic priorities. The original White Paper, Integration and Innovation: Working Together to Improve Health and Social Care for All, indicates that “significant” delegation to both place level and provider collaboratives from integrated care systems is expected. It is also suggested that, in time, provider collaboratives may play a role in oversight. At Second Reading, the noble Lord, Lord Lansley, said:

“we have new provider collaboratives which, in fairness, is where the power in the NHS will lie. The Bill makes no provision for them in terms of transparency, openness or accountability”.—[Official Report, 7/12/21; col. 1789.]

This was confirmed on 2 December by the Health Service Journal:

“In the minds of most acute trust chiefs, it is provider collaboratives and groups, and not integrated care boards that will wield the greatest influence (although the former may act through their representation on the latter).”

So I want to put a few questions to the Minister. First, what degree of oversight will be exerted over the formation of these arrangements, and by whom? Secondly, if a lead provider contract is in place, or if providers agree how to spend their respective resources as a provider collaborative, who would oversee that arrangement and where would accountability lie in the delivery of outcomes or in the case of poor performance? How would it be ensured that the work of provider collaboratives took into account the interests, aims and work of the wider health and social care community, including the patient voice?

On the latter, the NHS England design framework made it clear that the involvement of patients, unpaid carers and the public is expected at place and system levels, with requirements for public meetings and published minutes in both the partnership and the NHS board. It is not specified how provider collaboratives, where significant decisions regarding the planning and provision of services may be made, will be publicly accountable.

I believe that the Government are going to discuss with noble Lords the formation and governance of integrated care boards and integrated care partnerships. I suggest that that discussion be extended to look at the position of place-based committees and provider networks, because at the end of the day Parliament is entitled to establish some kind of framework and governance and transparency arrangements without going too much into the minutiae of the detail. On that basis, I hope that the Government might be prepared to take away these amendments as part of that broader discussion. I beg to move.

Lord Lansley (Conservative)

My Lords, perhaps I may make two quick points. At an earlier stage in the Committee, using the example from the noble Lord, Lord Mawson, in relation to Bromley by Bow and north-east London, I asked why the legislation cannot allow clinical commissioning groups, as they have established themselves over years, to continue as place-based committees or subsidiary elements of an integrated care system. I am sure that many of them would be willing to do so; we should allow them to do exactly that, because there is otherwise a gap in relation to how large ICBs will do their place-based work.

Secondly, the noble Lord, Lord Hunt of Kings Heath, referred to what I said about provider collaboratives. I still think it. Where are we going to end up with this? It will be with NHS England having within it, as each integrated care board has within it, the provider interest and the commissioner interest. The Government purport to be abolishing the purchaser/provider split. Every Secretary of State prior to the former Secretary of State, Matt Hancock, seemed to believe in it, with the exception of Frank Dobson. There was a reason why we did that: because it is a fact. We might legislatively abolish the purchaser/provider split, but, in reality, it will exist. As my noble friend Lord Hunt of Wirral said earlier, if that conflict of interest is not properly recognised and managed, it will emerge with potentially damaging consequences. Transparency about how provider interests are to be properly managed inside the NHS is not something I yet see in the substance of the Bill. I hope that my noble friend on the Front Bench will agree to think hard about this and perhaps talk about how we might give transparency and accountability to that conflict of interest.

Baroness Tyler of Enfield (Liberal Democrat)

My Lords, I have added my name to Amendment 165 in the name of the noble Lord, Lord Hunt. This is a small but important group of amendments.

I have added my name to the amendment because I am interested in what is happening to primary care and particularly the voice of GPs in the new arrangements. Frankly, we are not hearing much about them. As it stands, the legislation will place NHS trusts and foundation trusts in quite a privileged position in deciding how plans are made and resources allocated. I am not quite sure where the voice of GPs comes into the new arrangements. I understand that NHS England has commissioned a review of the role of primary care in the NHS structures, but my understanding is also that it will not report until after the Bill has been passed if we continue with the current timetable. Frankly, by then, it will be a bit late to make sure that we have got the arrangements absolutely right.

It is right that primary care commissioning is undertaken at a local level by people with relevant knowledge and skills, and with the necessary experience of what primary care needs to look like at locality level. That is why it is right that the new place-based partnerships are to be given that commissioning role. However, like the noble Lord, Lord Hunt, I think it is important that these primary care commissioning arrangements are established in statute, because it is only if that happens that Parliament will be clear about the accountability arrangements and the governance and leadership. It is also important that there is real transparency in the system. At the moment, it all feels a bit opaque. I hope that the Minister can give some assurances on this point.

Lord Stevens of Birmingham (Crossbench)

My Lords, I just wanted to respond to the last set of very important questions that have arisen. It is fair to say that the Bill increases the accountability for commissioning primary care services locally, as compared with its predecessor, the 2012 Act. That is because one consequence of having GPs represented on the clinical commissioning groups was that clinical commissioning groups could not, therefore, be the commissioners of local primary care services, at least in statute. One had the paradox that the most local of all the services in the NHS was stripped out from the local commissioning bodies, the CCGs, and instead given nationally to NHS England, as a work-around to deal with the conflict of interest that GPs would otherwise have had in commissioning themselves on the CCGs.

In practice, the CCGs have been given the ability to influence those local commissioning arrangements but, to be clear, that is not the accountability mechanism set through the 2012 Act. What this Bill does is to improve the position, in that it is local integrated care boards that have that local commissioning responsibility for GP and other family health services, as compared with NHS England nationally.

Baroness Walmsley (Liberal Democrat)

My Lords, we have been reminded many times during the debates in Committee of the aims of the Bill to improve the health and well-being of the population, to improve the quality of care and to use NHS resources sustainably through integration, co-operation and collaboration. Of course, the point at which these resources are used at the coalface, known as “place” in the Bill, is in these place-based organisations. To ensure integration at this level, we are told that the ICB must create an integrated care partnership, otherwise known as a place-based integrated care board, which probably has an acronym as well. There is, however, very little detail about those, despite their crucial importance, and these amendments from the noble Lord, Lord Hunt, are an attempt to put a bit of flesh on those bones.

I put my name to Amendment 166, but I could just as easily have put it to Amendment 165. Amendment 166 says that, within the place-based partnership, there should be mandated a provider network board with duties delegated to it by the ICB. It would be under parliamentary scrutiny and have an obligation to meet in public. These networks already exist and exert considerable influence, but it is essential that they operate in this new integrated care system under a regulated constitution, with obligations to consult and financial provisions. This amendment would ensure the transparency, for which the noble Lord, Lord Lansley, called, over how well integration is operating at this very important level so that there can be proper control and accountability and scrutiny as to where the money is being spent and whether it is achieving the duties placed on all these systems by the Bill.

Baroness Thornton (Labour)

I thank my noble friend for tabling these amendments; I have added my name to both of them. They are about transparency and legitimacy, raising very important questions which the Minister needs to answer.

I go back to what the noble Lord, Lord Lansley, said at Second Reading, which I think my noble friend referred to. He said that

“we have new provider collaboratives which, in fairness, is where the power in the NHS will lie. The Bill makes no provision for them in terms of transparency, openness or accountability.”—[Official Report, 7/12/21; col. 1789.]

I do not need to say any more than that. The Minister needs to answer that question, because it needs to be resolved before the Bill completes its passage.

Earl Howe (Conservative)

My Lords, I am grateful to the noble Lord, Lord Hunt, for bringing us back to the subject of place-based structures and taking us into the issues relating to provider networks. I hope it will be taken as a given that the Government have sympathy with the intentions behind his amendments.

On Amendment 165, we absolutely agree on the importance of place, and I hope I can provide the Committee with reassurances on that score. First, the linchpin to the accountability issue is, I suggest, the ICB constitution, which is required to set out how its functions will be discharged. That may include how functions will be carried out by committees and sub-committees, which will include place-level committees. The best size for an ICB area varies according to local circumstances, and some of the smaller ICB areas are coterminous with the local authority. In those systems, place arrangements will quite rightly look very different from the large ICB areas.

ICBs need to be clear about the expectations and roles of place-based structures, including what they are responsible for commissioning, what powers have been delegated to them, and what resources they are responsible for. The current legislation provides for the ability to establish place-based structures and set them out clearly in ICB constitutions. However, Frimley is not Cumbria, and Essex is not Manchester. We want to give ICBs the flexibility to determine structures that work best for them. To help them do that, NHS England has the power to issue guidance to ICBs on the discharge of their functions, and is working with CCGs and the current non-statutory ICSs to develop model constitutions for the future ICBs. Those constitutions will, of course, also have to be approved by NHS England before the ICB is established. This approach should achieve the right balance, because it allows us to support ICBs to develop, without the danger of putting in place further legislation which could act as a barrier to future evolution. Requiring the establishment of a separate place-based board is simply not necessary and would come at a bureaucratic cost.

I turn to Amendment 166. I appreciate the noble Lord’s concern about transparency and accountability for groups of providers working together where they are exercising functions that an ICB has delegated. I shall come on to the concern expressed by my noble friend Lord Lansley, about the purchaser/provider split. Provider collaboratives are intended to deliver the benefits of scale, with providers working together to implement best practice and reduce variation in access, experiences and outcomes for patients and populations. For example, this could involve sharing workforce and managing capacity on a wider scale. Depending on the local circumstances, such arrangements may include a delegation of ICB functions. ICBs and providers should have the flexibility, in line with guidance that will be issued by NHS England.

Baroness Thornton (Labour)

Has the Minister actually seen the model constitution that will be imposed by NHS England, and does it do what he is suggesting it does? Maybe the rest of us could see it, too.

Earl Howe (Conservative)

My understanding is that it is work in progress—so no, I have not seen it.

Baroness Thornton (Labour)

Is it not then unsatisfactory that we should complete the passage of the Bill without having sight of the constitution, so that we can be assured that the assurances that the Minister is giving us will in fact work?

Earl Howe (Conservative)

I do not think that is a reasonable ask by the noble Baroness, if I may say so. I am trying to describe a structure that should deliver what I am sure she wants to see—safeguards and good pointers for ICBs to make their own decisions, while also ensuring that some of the pitfalls mentioned in the debate are not fallen into. If I can let her see the work in progress, I shall certainly be glad to do so—I do not have a problem with that—but I suggest that it is not necessary for her to do that to accept the proposition that I am trying to put forward.

As I have mentioned, the Bill requires an ICB to set out in its constitution how its functions will be discharged, including any arrangements to delegate functions to provider collaboratives. Furthermore, as an additional safeguard, the Secretary of State may impose conditions on the exercise of the power through regulations.

I wholeheartedly agree with the noble Lord on the need for transparency and accountability, but—he partly forecast my reply here—we are giving the NHS the flexibility to determine the structures that work best for individual areas. That is not something we are foisting upon the NHS; I draw the Committee’s attention to the NHS Confederation’s urging to

“embrace a flexible and permissive approach that considers a range of models that will work in varied geographies and contexts.”

We therefore come to the issue of accountability that the noble Lord rightly raised. Where NHS England or an ICB delegates a function as part of a collaborative arrangement, it will be expected to take appropriate steps to ensure that the function is being effectively carried out on its behalf. That will include the power to set the terms of delegation agreements, which can impose terms as to how the delegation powers can be exercised. The Bill includes a number of safeguards; for example, as I have mentioned, NHS England will have a power to issue statutory guidance in relation to delegated functions and joint working arrangements, and there will be transparency through the constitutions.

My noble friend Lord Lansley understandably raised the issue of the purchaser-provider split. As he knows, the Bill does not abolish that split, but I understand the point of his question. I think I can best answer it by saying that ICBs or NHS England will still bear ultimate responsibility for protecting the interests of patients and taxpayers, and will be able to oversee providers’ exercise of delegated functions through the terms of the delegation agreement and the performance assessment functions. Providers can be given greater flexibility to design services around their understanding of patient needs. That will happen only where ICBs are satisfied that quality standards continue to be met and the function is being effectively carried out.

My noble friend also suggested that we might consider keeping CCGs to enable the local assessment of patient need and the services that are required to be retained in the commissioning arrangements. Instead of that, we need to go back to the functions of the health and well-being boards and the ICPs. The system will enable the kinds of granular insights, described earlier by the noble Lord, Lord Mawson, that will inform strategies for the whole population.

We come to the question that noble Lords asked earlier: why do we have health and well-being boards and ICPs? The best answer is that they perform complementary functions. The ICP will be responsible for developing an integrated care strategy for the whole population within the geographical footprint of its relevant ICB, but that strategy should be informed by local assessments of needs developed by health and well-being boards at the local level so that the system plans reflect the needs of every community within the area. That is how the circle is intended to be squared.

Not all of my reassurances today have landed well, but I hope I have provided reassurance to the Committee that place-based commissioning structures are already an intention and sufficiently catered for in the current provisions, and that the noble Lord, Lord Hunt, will feel able to withdraw his amendment.

Baroness Tyler of Enfield (Liberal Democrat)

Before the Minister sits down, is he in a position to answer the question I asked about the timing of the review regarding the position of GPs within this new set of arrangements?

Earl Howe (Conservative)

I shall need to write to the noble Baroness about that timing because I do not have it. I meant to say that I was grateful to the noble Lord, Lord Stevens, for his intervention on the way in which we hope that primary care will be better built into the commissioning arrangements than it has been up to now.

Lord Hunt of Kings Heath (Labour)

My Lords, I am grateful to the noble Earl and to the noble Baroness, Lady Tyler, for her helpful interventions on primary care, which were very important.

In essence, the noble Earl said that we should be reassured because, either through the constitution of the ICB or through the more general guidance given out by NHS England, appropriate accountability and monitoring arrangements will be put in place. I accept that, but there are questions about the guidance and the constitution which mean that we may well want to come back. I think it would be appropriate for Parliament to give some oversight approval to that.

We are a bit jaundiced about NHS England guidance because we still cannot get hold of the guidance put out 10 or so days ago about the make-up of ICBs and the new timetable, which I mentioned on our previous Committee day. It is on something called nhs.net but not even our Library can get hold of it because there is a security wall around it, and I do not understand why it has not been put into the public domain. That is why we are a bit wary of any guidance that is going to be put out. I cannot resist saying that I hope the guidance is not going to say that local authority councillors cannot be on the place-based committees, because that would be a mistake. It could be helpful in some places for them to be so appointed.

On the more general issue of purchaser-provider tension, we have had a really interesting debate. The noble Lord, Lord Lansley, said that every Secretary of State apart from Frank Dobson, of blessed memory—my first ministerial job was serving under Frank before he was persuaded, if that is the word, by Tony Blair’s persuasive skills to go and fight Ken Livingstone for the mayorship of London—believed in it.

The point is that, whatever you call it, there is clearly going to be a relationship between the organisations of the NHS that have the dosh handed out by the department and those organisations that provide the services. There is going to be an unnecessary tension and an issue of accountability and monitoring. The puzzle that some of us have is how that is going to work within the integrated care boards when the big providers are sitting around the table. I think the clue was given in the Health Service Journal, which said:

“In the minds of most acute trust chiefs, it is provider collaboratives and groups, and not integrated care boards that will wield the greatest influence”—

an interesting phrase. I suspect the real dynamic is going to be between those collaboratives and the chair and chief executive of the integrated care board, while the board itself, which looks as though it is going to be very large, will be the legitimiser of those discussions and tensions. Still, it is a bit of a strange beast.

The noble Lord, Lord Stevens, raised the issue of CCGs and the fact that, because they were essentially membership organisations of GPs, they could not do the nitty-gritty of managing the contracts, which in the end was kind of half-devolved down to them but with accountability held at the NHS England level. That illustrates the problem of having providers and commissioners around the same table. For very good reasons people want to encourage them to integrate, but that poses its own challenges.

I think it is inevitable that we are going to come back to this issue. This has been a very good debate and I am most grateful. I beg leave to withdraw the amendment.

Amendment 165 withdrawn.

Amendment 166 not moved.

Schedule 4: Integrated care system: minor and consequential amendments

Amendment 167 not moved.

Schedule 4 agreed.

Clause 28 agreed.

Schedule 5 agreed.

Clauses 29 to 34 agreed.

Amendments 168 and 169 not moved.

Clause 35: Report on assessing and meeting workforce needs

Amendments 170 to 172 not moved.

Clause 35 agreed.

Amendments 173 and 174 not moved.

Clauses 36 to 38 agreed.

Clause 39: General power to direct NHS England

Amendment 174A

Lord Hunt of Kings Heath (Labour)

My Lords, we come to Clause 39, which I think is one of the most significant ways in which the Bill will increase the powers of the Secretary of State over the NHS. The clause gives a general power of direction over NHS England in the exercise of its functions. It is a very significant change from the legislation the noble Lord, Lord Lansley, put through in 2011-12. It also is clear that many NHS bodies are, like the Nuffield Trust,

“concerned that these new powers will result in a more politicised NHS, with ministers dragged into micromanaging how local services work.”

I do not think you can consider this clause without considering further clauses in the next group, led by the noble Baroness, Lady Cumberlege, in relation to the power of the Secretary of State to intervene at any time in proposals to change services. In addition, Part 3 of the Bill gives the Secretary of State the power to move responsibilities between several arm’s-length bodies in health and to abolish them. We have already had the CQC debate today, about an increase in the Secretary of State’s capacity for intervention. There is also the question of the regulators, which will be discussed later, which again leads to the individual professional regulators, which, again, the Secretary of State can abolish.

Although I am going to talk about the general direction, I do not think you can do that without thinking about the other accretions of power that the Bill takes. Together, I believe it is a fundamental difference —a change in philosophy—from the 2012 legislation. NHS Providers, with which I have discussed this extensively, is concerned. As it says:

“Clinical and operational independence must be maintained in order to ensure equity for patients within the service; the best use of constrained funding; and clinical leadership with regard to prioritisation and patient care.”

Although I do not want to completely open up this debate, I have to say that the allegations made by Conservative MPs about threats made in the last few days by Government Whips, over the funding of services, are very apposite to how a power direction might be used by Ministers under this Bill.

Let me explain my amendments. Amendment 174A would mean that a direction by the Secretary of State

“may be given only in relation to a particular instance, not generally … A direction … must provide for the direction to cease to have effect on a date specified in the direction, which must be no later than one year from the date the direction was given.”

This really reflects the reality that the public interest is not static and objective circumstances may change. If, after a year, the Secretary of State believes the direction is still necessary, they can renew it, but there has to be an explanation of why it remains in the public interest.

Amendment 174B would mean that a direction must include a statement of

“why the Secretary of State believes the direction will be in the best interests of the public.”

The public interest test is based on the principle of them carrying out their duties. Ministers, civil servants and public authorities must act demonstrably on behalf of the public as a whole, not on behalf of individuals or private interests. This constitutes another check and balance that needs to be put in place.

Amendment 175A would mean:

“The Secretary of State must publish any direction … at the time that the direction is issued and lay it before Parliament.”

Additionally, I would like the Secretary of State to

“publish an impact assessment … at the time the direction is issued or within that financial year.”

Again, transparency is essential to ensure all the required processes and safeguards are being adhered to during the decision-making process.

Amendment 176A would mean that the power could not be used to direct NHS England to make a particular procurement decision or grant of NHS funds to a particular person. This means the power could not be used to undermine the integrity of a fair-share allocation to local systems by unfairly seeking to amend allocations to a particular part of the country, contrary to the allocation formula.

Amendment 176A would remove existing procurement requirements, with the intention to move away from the competitive tending by default in favour of a more collaborative approach to planning and delivering services. For example, ICBs will have the ability to continue with an existing provider while having to go through a competitive procurement process, under the Bill. We discussed this on our last Committee day.

While the Secretary of State sets the overall budget for NHS England, they should not have the power to circumvent and interfere with this new procurement regime. The power of direction conferred on the Secretary of State in Clause 39 should not be used to interfere in NHS England’s operational independence and direct it to make a particular procurement decision.

My Amendment 176A concerns the weighted allocation formula. NHS allocations are underpinned by a weighted capitation formula, which calculates the target fair share of the national budget for local authorities. The ACRA makes recommendations on the optimum geographical distribution of health spending, advising the Secretary of State on public health allocations and the chief executive of NHS England on NHS allocations. The power of direction in the Bill should not be used to undermine the integrity of fair-share allocations to local systems.

The noble Lord may say, “This is all fine and dandy, because the Secretary of State will only ever use this power of direction on very few occasions.” My view, however, is that this is such a significant difference from current legislation that safeguards ought to be set out in legislation. In reality, I have to say that once you have a power of direction, it changes the relationship between the Secretary of State and NHS England in any case, because if NHS England knows that the Secretary of State has a power of direction, it is bound to take note of that in terms of their relationship and the instructions and advice the Secretary of State may give it. I am not naive enough to think that my amendments would necessarily prevent undue involvement by Ministers in the operational activities of NHS England, but I do think they would go some way to providing some reassurance.

Again, I say that you cannot consider this group of amendments without taking account of the noble Baroness’s group of amendments, which are equally important, and the other accretions of power that the Minister is taking. I hope the Minister will give a proper justification—I have not yet heard one—for why the Secretary of State feels the need to take these powers. I beg to move.

Lord Lansley (Conservative)

My Lords, I shall intervene relatively briefly. The noble Lord, Lord Hunt, quite rightly said that this is a significant departure from the intentions of the 2012 legislation. The 2021 Act, among other things, created the body that is now NHS England and gave it independence. None of that independence was intended to mean, nor has proven to, that it was not responsive to even the day-to-day wishes of a Secretary of State, as I am sure the noble Lord, Lord Stevens, would verify. What it did put in statute was that, if the Secretary of State wants to set something as an objective of NHS England, they put it in the mandate. If the Secretary of State requires a change to those objectives, they publish a revision to the mandate.

Going beyond it is, I think, the product of circumstances where we had a Secretary of State who was encountering an emergency and thought he could press lots of buttons and things would happen, but pressed some and they did not. I think, even in his experience, that was more outside NHS England than inside it— I may be wrong, but that was certainly my impression. The point is that the Secretary of State did not even realise what powers he had in an emergency; they are all there and he was not required to change the mandate, because it was an emergency. In a public health emergency, none of this, strictly speaking, is within the same bounds.

Ministers have quite rightly said that this is the Bill the NHS asked for. But Clause 39 is not the clause that the NHS asked for; it is the opposite of what it is asking for. There are many practical issues. The noble Lord, Lord Hunt, is right; if it appears, including to the senior people and bright youngsters, that power is going to shift from NHS England back to the Department of Health and Social Care, they will go and work in the department. One of the things I was most pleased about was that some of the brightest and best, including civil servants in the department who I knew well, went to work in NHS England, because they thought, “This is a great future.” That is terrific, because one of the problems was that NHS managers were being imported into the Department of Health, rather than bright policymakers going to the NHS. The NHS is too important an institution for it not to have the best possible policymakers under its own purview.

The noble Lord, Lord Hunt, and the noble Baronesses, Lady Thornton and Lady Walmsley, have done a sterling job in trying to mitigate a general power of direction for the Secretary of State. Frankly, I have not heard a case for it, it is contrary to where we are and where we need to go, and the simplest thing is to simply take Clause 39 out of the Bill.

Lord Warner (Crossbench)

My Lords, it is a delight to follow the noble Lords, Lord Lansley and Lord Hunt, on this set of amendments, with which I totally agree. I want to dilate for a few moments on the realpolitik of being a Minister in the great, august organisation called the Department of Health and Social Care. I can say some things that the noble Lord, Lord Lansley, as a former elected Minister, possibly cannot.

When I ceased to be a Parliamentary Secretary and was promoted to work with the big boys and girls as a Minister of State, and had to deal with issues such as reconfiguration, poor performance and so forth, I became used to regularly meeting elected MPs who wanted to tell me about the errors of their ways in decisions that had been taken in the public interest. There was a steady flow of them, which, if I may say, tended to get bigger the nearer you got to an election. If people wanted to go through the archives, I would refer them to the history of Lewisham Hospital and of Chase Farm Hospital, to name but two.

Very often in these situations, it is not about closing a whole hospital but about re-engineering—we will come to some of this in the next group. I give the example of stroke services in London. It is re-engineering a particular set of services, which the local MP is then put up for trying to ensure that change does not happen. That is where you need to help Ministers do the right thing, when it is in the public interest to make changes. The amendments from the noble Lord, Lord Hunt, help Ministers do the right thing.

The point the noble Lord, Lord Lansley, made is absolutely valid. In many of these circumstances, it becomes very difficult if you are an elected Minister—as distinct from an appointed Minister, who does not have to face the electorate—to resist some of the local pressures to avoid change which would be disadvantageous to a local hospital. For those realpolitik reasons, I think the noble Lord, Lord Hunt, is on the right track and we should support the amendments.

Baroness Walmsley (Liberal Democrat)

My Lords, I support the noble Lord, Lord Lansley. Clauses 39 and 64 give the widest possible powers of intervention to the Secretary of State and even the power to delegate that power to someone else. The noble Lord, Lord Hunt, and other noble Lords clearly believe that the Government are going too far, hence the large number of amendments in this and the next group.

I believe that the Clause 39 powers could justifiably be used only in the case of some cataclysmic failure of the NHS. There are four questions to ask. Is it possible that the Secretary of State would ever need these powers of intervention at an operational level, given that he already has the mandate? Does the Secretary of State have any other powers which could be used prior to this atomic bomb of a power? Has the NHS survived well enough over the last 10 years without the Secretary of State having such powers? Does Clause 39 upset the balance between the Secretary of State and the autonomy of NHS England? I think the answers are no, yes, yes and yes—your Lordships can work it out.

The Health and Social Care Act 2012 removed the Secretary of State from this sort of meddling. I thought at the time that it might also avoid him or her taking the blame for failure, but that was just me being cynical and there has actually been no failure of political accountability over the last 10 years. The ninth report of the House of Lords Constitution Committee refers to this issue. It notes that, in 2011, it

“raised concerns that that Bill could erode ministerial responsibility due to the proposed duty on the Secretary of State to promote autonomy for persons exercising functions in relation to the health service. What is now section 5 of the Health and Social Care Act 2012 was amended, such that the Secretary of State instead must have regard to the desirability of securing autonomy. This helps ensure a balance between enabling those providing health care services to deliver services in a manner that they consider appropriate, whilst ensuring ministerial responsibility.”

The Constitution Committee believes that, in combination with Clause 64, the powers taken for the Secretary of State by Clause 39 would undermine that autonomy and upset the balance. They also risk

“undermining accountability by making it more difficult to understand which body is responsible for a particular function of the NHS.”

The fact is that the Secretary of State already has the power to change the mandate of NHS England—as the noble Lord, Lord Lansley, pointed out—to adjust its funding or to bring political pressure upon it to behave in certain ways, without the need for the powers in this clause. Indeed, I think it would be very unwise to use these powers, and he or she will certainly get the blame if it all goes pear-shaped. The Bill, as has already been pointed out in some detail by noble Lords, the DPRRC and the Constitution Committee, gives the Government considerable regulatory and guidance powers, about half of which allow no parliamentary scrutiny at all. Does that not give the Secretary of State enough ability to ensure things are done in the way the Government wish? The Secretary of State already wants to be Henry VIII; does he also want to be King Herod?

The Bill lays out in some considerable detail the powers and duties of the new integrated care systems, and the Government tell us they do not want to be prescriptive as to how these duties should be carried out—yet here, we are expected to rubber-stamp an enormous set of powers which could do absolutely the opposite. Clause 39 is not needed. In addition to all the regulatory and guidance powers in the Bill, the Government still hold the overall purse strings and can always provide additional resources after the initial budgets have been set if particular needs arise. The Secretary of State should then leave it to those who have been so carefully chosen and so rigorously regulated to get on with the job. I support removing Clause 39.

Baroness Thornton (Labour)

My Lords, I am nearly convinced that I should have put my name to the opposition to Clause 39 standing part of the Bill.

We have had a very informed and interesting debate which comes to the heart of the balances of power that the Bill seeks to change. My noble friend Lord Hunt set out concerns over Clause 39, which gives general powers of direction to NHS England. Amendments 174A, 174B, 175A, 176A and 175 seek to mitigate the power and to put in safeguards. This is very much in tune with concerns expressed across the Committee, by the Delegated Powers and Regulatory Reform Committee, and by the Constitution Committee. Our amendments stop short of that from the noble Lord, Lord Lansley, and the noble Baroness, Lady Walmsley, but theirs is a more elegant solution in many ways. However, the Minister will need to explain why some powers of direction are required, and we on these Benches will listen very carefully indeed.

This is all part of the balance between the responsibilities of the Secretary of State, especially to Parliament, and the powers the Secretary of State has to enable them to discharge their duties. If there is a clear and consistent solution to this, we have yet to hear it. In a way, we are repeating debates we have already had in Committee. The Bill has been severely criticised as a clear and disturbing illustration of disguised legislation, and it will need to be changed. We will need to move on to proper talks about how to do that.

On whether Clause 64 should stand part of the Bill, the issue is a different one. The 2012 Act introduced the formal notion of NHS bodies having autonomy, and since 2003, foundation trusts have had some degree of at least theoretical autonomy. But in the years of austerity a lot of that has gone, and all trusts of all kinds are simply struggling to manage day by day. It may have been the noble Lord, Lord Stevens, who observed that the difference between a trust and a foundation trust was a distinction without a difference. For some years, the process of managing foundation trusts has been the same as for trusts.

We have been hearing in our recent deliberations about local flexibilities. Our scepticism about this has been strong, because it appears—and this group of amendments addresses this—that any flexibility will be as great as NHS England permits. Let us not reject autonomy. Why remove the duties to promote autonomy? Why not replace them, for example, as the noble Lord, Lord Mawson, said, with a duty around subsidiarity and localism?

I will not repeat what was said by the Constitution Committee, but it was very critical of the powers that the Secretary of State seeks to take. Indeed, I raise a different issue: the fact that I thought NHS England was undertaking implementation of the Bill before it has finished its passage through Parliament. It is all part of the same pattern. Since we have an undertaking from the Minister to respond to that concern, we will look for an undertaking from him to provide an explanation and perhaps further discussion about why he wants autonomy removed from the Bill.

Lord Kamall (Conservative)

I thank all noble Lords for their amendments and for challenging the issues around the power of direction. We believe that we must have the right framework for national oversight of our health system. Following the merger of NHS England with Monitor and the Trust Development Authority, NHS England will be one of the largest arm’s-length bodies in government, responsible for over £130 billion of taxpayers’ money. Without this power, we would be expanding the functions and responsibilities of NHS England without ensuring that there are enhanced accountability measures in place.

Accountability must run from NHS England to Ministers, from Ministers to Parliament, and from Parliament to the public. This is what the power of direction supports. Indeed, a number of politicians from different sides agree that if you walked out into Parliament Square and asked people who is responsible, they would expect us to have answers. Therefore, we want to make sure there is the appropriate power of responsibility.

I also want to give reassurances that we expect the situations where the Government issue directions to NHS England to be rare. Where it does happen, Ministers will of course ensure that the direction is clear, appropriate and has suitable timeframes. It is paramount that this power can be deployed quickly when required, and limiting it to specific instances, or prescribing a time limit as to its efficacy, would undermine the intent of these provisions.

That said, we agree it would be inappropriate to use this power to intervene in clinical decisions, and we have specifically exempted this in the Bill. For example, we have made sure that a direction cannot be given in relation to drugs, medicines or—interestingly, given our previous discussions—on treatments that NICE has not recommended or issued guidance on. The noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, rightly questioned the draft guidance that NHS England has given—we are trying to find a copy of that. However, we recognise the unique role the Secretary of State for Health and Social Care plays in the system. The Secretary of State could use the powers to request to see the guidance developed by NHS England before it is published, to ensure that NHS England is working effectively with other parts of the system, such as local authorities, given the concerns that both the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, raised.

On Amendments 176A and 174A, we have already included a number of exemptions to the power of direction in the Bill to ensure the Secretary of State is not able to intervene in day-to-day operational matters. There is also no intention that the power will be used to direct NHS England on procurement matters. Any decision to exercise the power will be subject to and guided by general public law principles and general statutory duties. This means, for example, that Ministers will have to use regulations where they exist, as they do for procurement, and that the Secretary of State cannot direct NHS England to breach procurement regulations, since this would be unlawful.

In relation to allocations to ICBs, NHS England uses a formula to allocate NHS resources to different parts of the country based on long-standing principles of equal opportunity of access for equal needs and informed by the independent Advisory Committee on Resource Allocation. There is no intention to use the power to interfere in this process.

In relation to local organisations, I make the point that the Bill will provide more practical autonomy at a local level by strengthening local leadership and empowering local organisations to make decisions about their population, while also allowing for national accountability. This is the approach we want to take with this power: directing NHS England only on the functions it holds in respect of local bodies, to provide necessary support and assistance to them, especially if they are failing. It is also vital that a power of this nature is accompanied with appropriate safeguards and transparency requirements.

On Amendment 174B, which relates to public interest, the clause already ensures that all directions must be made in the public interest.

On Amendment 175A, the noble Lord, Lord Hunt, has called for directions to be laid in Parliament. It is already the case that any direction issued must be made in writing and will have to be published. This will allow Parliament to hold Ministers to account for use of this power.

On Amendment 175, Ministers already work in partnership with NHS England, and any direction made would come after close working and considered discussion. NHS England will continue to make the vast majority of its decisions without direction, consulting the Government as it needs to. We believe that this power provides additional transparency by ensuring that where Ministers direct NHS England, it is clear, published and available for scrutiny by all. Any direction will come after a considered discussion with NHS England and advice, including on the impact and deliverability of such a direction. Ministers will of course consider, with NHS England and others, that the priorities being set are the right ones and whether they are affordable. However, it is important that we do not put in place too bureaucratic a structure that would bind Ministers’ hands when decisions have to be made quickly.

I end by addressing the questions put forward by my noble friend Lord Lansley and the noble Baroness, Lady Walmsley, about Clauses 39 and 64 being removed from the Bill. Clause 39 is part of our ambition to put increased accountability for the Secretary of State at the heart of these proposals while committing to the NHS’s clinical and day-to-day operational independence. We reiterate that the power will add to the existing ways that the Secretary of State and NHS England work together. The mandate to NHS England, which has been an established means of providing direction since 2013, will continue to be the main place for strategic direction-setting.

Lord Lansley (Conservative)

Let me give my noble friend one simple example of how this could shift decision-making from NHS bodies to the Secretary of State. We discussed previously, in an earlier group, the availability of in vitro fertilisation services. There will be pressure on the Secretary of State to issue a direction that the NICE recommended availability of in vitro fertilisation services should be provided. By what means is the Secretary of State going to say, “No, I can’t issue such a direction”? It is entirely within his power to do so. The pressures will all be on the Secretary of State to issue directions to do things that the NHS locally may choose or choose not to do. The power will shift. Is he aware of what he is wishing for?

Lord Warner (Crossbench)

Before the Minister answers that question, could I add another? We have had 10 years’ experience of NHS England under three chief executives and a number of different chairmen. Can the Minister give any examples of where the powers the noble Lord, Lord Lansley, gave the Secretary of State have been inadequate for them to give direction to NHS England?

Lord Kamall (Conservative)

The Secretary of State cannot issue a direction to CCGs or ICBs on any of this using this power. We have been clear that direction cannot be given in relation to drugs, medicines or on treatments that NICE has recommended or issued guidance on. I gave the example of where we want this guidance—with the draft guidelines published for ICBs. The Secretary of State would be able to intervene and ask to see that guidance—

Lord Lansley (Conservative)

I am sorry to interrupt my noble friend again but let us be clear: the Secretary of State would be asked to give a direction in line with NHS guidance. There is nothing in the exception in Clause 39 which says that the Secretary of State cannot give such a direction.

Lord Kamall (Conservative)

If my noble friend will allow me, I will have to consider that and write, and make that available to all noble Lords.

We have included a number of exceptions to the power of direction in the Bill to ensure that the Secretary of State is not able to intervene in day-to-day operational matters. For example, there is no intention to use the power to direct NHS England on procurement matters.

On Clause 64, the rationale for removing these duties is twofold. First, the pandemic has highlighted the importance of different parts of the health and care system working together. The clause removes some barriers in legislation that hinder collaboration between system partners. It facilitates collaboration between NHS England and system partners and enables broader thinking about the interests of the wider health system. Secondly, removing the Secretary of State’s duty to promote autonomy will put increased accountability at the heart of the Bill.

Overall, these clauses encompass flexibility, allowing Ministers to act quickly and set direction, while balanced with safeguards and transparency requirements to ensure that they can be held to account. I understand that there are a number of concerns about this group of amendments and others. I am sure we will have a number of discussions, but in the meantime, I ask noble Lords not to press their amendments.

Lord Hunt of Kings Heath (Labour)

My Lords, this has been a very significant debate, because when the Minister referred to the fact that Ministers needed to have the answers, I realised that the intention is to go back to command and control from the centre. It was quite clear: that is the intention. I think that is very depressing, because I do not believe that the NHS is going to benefit at all. When he said that this will strengthen local accountability—oh no, it will not. There is no local accountability whatever in this structure. I am sorry to say this again, but the fact that the Government are taking local authority councillors out of ICBs is a visible demonstration that this is a centrally driven health service from the Department of Health.

In this debate and the next, we have two parallel lines of thinking. I have attempted to produce some constructive amendments to try to constrain the powers of the Secretary of State. The noble Lord, Lord Lansley, and the noble Baroness, Lady Walmsley—and I think my noble friend Lady Thornton—think that this is such a wrong route to go down that we should take Clause 39 out. I am absolutely persuaded now that that is the right approach. From what is being said, it is clear that whatever constraint we put in, basically Ministers want to run the NHS again. The same argument relates to Clause 40, because, again, the noble Baroness, Lady Cumberlege, has tabled what I believe are constructive amendments, and then there is a stand part debate.

The moment that the Government take this power, they will be expected to answer for everything that happens. We will expect it here. They will not be able to say, “This is a matter now for NHS England”—oh no, it is not. It is a matter for the Government. The moment the Government have power of direction, they change the whole dynamic and relationship.

We have said enough now, but I urge the Government to think again on this. I think that they do not understand the risk they take by going down this route. Having said that, I beg leave to withdraw my amendment.

Amendment 174A withdrawn.

House resumed. Committee to begin again not before 7.15 pm.

Baroness Thornton (Labour)

My Lords, I would much prefer that the noble Baroness, Lady Cumberlege, should open on this group. I will speak to the question of whether Clause 40 should stand part when that has happened.

Baroness Cumberlege (Conservative)

My Lords, I will speak to Amendment 179 and the other amendments in my name. I thank the noble Lords who put their names to these amendments: the noble Lords, Lord Shipley, Lord Hunt of Kings Heath and Lord Patel. We are told that the driving force of the Bill is to ensure that health and care services are delivered at place; and to empower local leaders—leaders who know what their local communities’ needs are and who will make decisions about how care is delivered. I am sure that is music to the ears of my noble friend Lord Mawson.

We are told that the integrated care systems—the ICSs—will be given the flexibility to plan, to commission and to provide services according to the specific needs of their population. This principle is undermined by the unchecked power that the Bill gives the Secretary of State over local configuration of services. I am pleased to tell your Lordships—particularly my noble friend Lord Howe, who is on the Front Bench for this item—that Amendments 179 to 183 have the support of a number of influential voices. These are voices from the health and local government sectors, the NHS Confederation, the King’s Fund, NHS Providers, the LGA, the BMA, National Voices and the Centre for Governance and Scrutiny. These organisations cover NHS leaders, local authorities, clinicians and patients. It is significant that they are united in their deep concern about the powers that the Secretary of State would have over local reconfigurations as the Bill currently stands.

Of course, there is an existing system for local reconfiguration and it works very well. It is overseen by the Independent—that word is very important—Reconfiguration Panel, the IRP. This has helped take politics out of the difficult decisions surrounding services. Crucially, the current process for service reconfiguration starts with local consultation and consideration of clinical advice. These elements are fundamental, and they must be maintained in a future process. In short, the Secretary of State should be able to intervene in a decision about local services only once local people have had their say on the proposed changes, and once clinical advice has been considered. It will be to the detriment of patient safety if it has not. Under the existing arrangements, when the process takes too long, it has often not been about the IRP but about the Secretary of State’s failure to reach a decision, yet the Government state that the new powers are needed to speed up the process.

Just before Christmas, for instance, the Secretary of State finally made a decision on the reconfiguration of local stroke services in Kent and Medway—a decision that had been on his desk for two years. That was not because the Secretary of State disagreed with the panel’s findings; on the contrary, he accepted the recommendations in full and has always done so.

I know that we need to speak at speed and get through our business so I will resist telling the Committee of the shattering case of Epsom and St Helier University Hospitals, where the politics got involved. A proper process was followed and took a year. Even today they are only starting to build what was decided 16 years ago. It has taken that long to get to this position. The detail is fascinating but I will not go into it because it is quite lengthy.

Amendment 179 addresses the scope of reconfiguration in the current form. Currently the Bill allows the Secretary of State to intervene in any number of local service reconfigurations. This would include decisions about an individual GP or dental surgery, for example—very local issues. We could well see a world in which the DHSC is snowed under with such decisions to intervene. These are local decisions but still are very real to local communities. In turn, this would increase the costs for the department and reduce the time that its civil servants had to spend on national policy matters. The amendment would mean that any intervention from the Secretary of State could be made only on complex and significant decisions.

Amendment 180 concerns transparency and clinical oversight. The noble Lord, Lord Hunt, talked about that earlier today. We agree that decisions on local service reconfigurations should be based on clinical advice. That is the way in which services should be delivered to ensure patient safety and quality of care. The amendment would require the Secretary of State to consult all relevant organisations delivering the NHS services under consideration, to obtain the clinical advice of the integrated care board, and to publish those submissions. This will ensure that changes to clinical services are based primarily on clinical, not political, pressures.

Of course we should put patient safety and health first but the amendment would also require the Secretary of State to consult the health and overview scrutiny committees. They scrutinise local service reconfigurations and ensure accountability to local communities where a service spans more than one local authority area. Again, I hope noble Lords will agree that patients and citizens have the right to scrutinise and to have a say in how the services that they pay for through their taxes are delivered.

Amendment 181 is important. It seeks to ensure that decisions on local reconfigurations are not delayed over months. For example, it could be politically expedient for a Secretary of State to delay a decision because of a pending election, either local or national. Limiting the period to three months would mean that the Secretary of State had to provide certainty to local service managers for planning purposes and reduce any delays to accessing care.

Amendment 182 would ensure that changes are in the public interest. At Second Reading, the Minister said that the new powers for the Secretary of State were about ensuring accountability. Surely it follows that he must set out why he is intervening in a configuration process and why it is the public interest for him to do so. The amendment would require him to publish a statement demonstrating that any decision he has made on a reconfiguration proposal is in the public interest and that it has been taken with consideration of its positive impact on patient safety. Again, this will provide a safeguard against any decisions being made for politically expedient reasons.

Amendment 183 addresses the ability of the Secretary of State to act as a catalyst in reconfigurations. I hope noble Lords will agree that local service reconfigurations should be based on clinical considerations. In its current form, the Bill would allow the Secretary of State to be the instigator of local reconfigurations, even if there were no appetite locally. This is a significant overreach of powers. How can the Secretary of State know what is best for patient safety in any one of the 42 ICS areas? The amendment removes the Secretary of State’s power to act as the catalyst for reconfiguration.

In closing, I hope that the Minister, my noble friend Lord Howe, will view these amendments in the spirit in which they have been drafted. I have sought a compromise to ensure that clinical checks and balances on the new powers of the Secretary of State are reasonable and acceptable. After all, they are intended to protect the Secretary of State and his department as well as patients, clinicians and service managers. If I have been unconvincing, I hope that my noble friend will be persuaded by the succinct letter in today’s Times signed by Richard Murray, the chief executive of the King’s Fund, Chris Hopson, chief executive of NHS Providers, and Matthew Taylor, chief executive of the NHS Confederation—all of them and their organisations have been very helpful in advising me on this issue.

I hope also that Ministers will recognise the breadth and depth of support from the health and local government sectors for these amendments. They will know that bringing together so many organisations with varying roles and priorities is very difficult. The fact that so many are singing the same song is a triumph and I am sure that my noble friends on the Front Bench will consider these views and give pause for thought. I am sure that they will not be dismissive. That is not in either of their natures, as we have witnessed on other matters. However, I want some reassurance that these amendments are not totally negative and are not to be totally dismissed. I hope that my noble friends will seek to work towards some of these amendments because they are really important. Those of us who have been through the whole process of reconfigurations in a position of authority—not as a Minister, as the noble Lord, Lord Warner, was, but as junior Ministers—know how fraught reconfigurations are. I therefore hope that these amendments will find some favour with my noble friends on the Front Bench.

Baroness Pitkeathley (Labour)

I call the noble Lord, Lord Howarth, who is participating remotely.

Lord Howarth of Newport (Labour)

My Lords, your Lordships’ Select Committee on the Constitution, of which I have the honour to be a member, has advised the House, as has the Delegated Powers and Regulatory Reform Committee, that this Bill is a skeleton or framework Bill. It provides a multitude of vaguely delineated powers and duties. It is often impossible for noble Lords to scrutinise these meaningfully because their meaning is so unclear

The Bill is also an instance of a growing tendency in the Government’s legislative practice to create “soft law”—that is, guidance, rules and directions which are not susceptible to parliamentary scrutiny but are, in, effect binding. It also creates “hard law”, which is not susceptible to parliamentary scrutiny, as in the Henry VIII power in Clause 15, but is subject only to the negative resolution procedure.

This manner of legislating is part of a pattern documented in a long series of reports by the Constitution Committee, drawing the attention of the House to Henry VIII clauses which are convenient to the Executive but subversive for parliamentary democracy, and to the creation of delegated powers enabling Ministers to bring in significant policy change subject to little or no parliamentary scrutiny. The DPRRC has reported that the Bill contains no less than 155 delegated powers.

What is egregious, however, are the autocratic powers that the Bill accords to the Secretary of State. I had sought to indicate that I wished to speak on the previous group, but there was some confusion, and the Chair did not invite me to do so. I hope therefore that noble Lords will bear with me as I take us back for a moment.

As the noble Lord, Lord Hunt, and others, noted Clause 39, entitled

“General Power to Direct NHS England,”

states:

“The Secretary of State may give NHS England directions as to the exercise of any of its functions.”

It goes on to say:

“The directions that may be given include a direction as to … when or how a function is, or is not, to be exercised”

and

“matters to be taken into account in exercising a function.”

The autocratic power provided by Clause 39 is exacerbated by Clause 64, which repeals the duties previously placed on the Secretary of State to respect autonomy within the NHS.

The mischief, which the noble Baroness’s amendments in this group seek to mitigate, is further compounded by Clause 40 and Schedule 6, which confer comprehensive powers on the Secretary of State in regard to reconfiguration of NHS services. Effectively these three clauses together confer upon the Secretary of State, with only the exception stated at proposed new Section 13ZD in Clause 39, mainly in relation to clinical discretion, absolute power over the NHS.

We are told that the Secretary of State has no intention of bossing NHS England around and that he needs powers to sort out failures within the NHS system. In our earlier debate today on continuing care, and in his response to the last debate, the Minister said it is not the Government’s intention to interfere unduly in the affairs of ICBs. However, in a letter to the Times today, referred to by the noble Baroness, the chief executive officers of the King’s Fund, NHS Providers and the NHS Confederation warn of the danger that the Bill may lead to politicisation of decision-making in the NHS, of the kind which the noble Lord, Lord Warner, described in the last debate and which the noble Baroness, Lady Cumberlege, has just explained. The fact remains that Clauses 39, 40 and 64 make the Secretary of State untrammelled master of the NHS.

With such power comes temptation, not least for Department of Health officials. What might “unduly” mean in practice? The Secretary of State may often refrain from interfering, but too often he, or officials acting in his name, may not. In any case, to accord the Secretary of State such excessive power is wrong in principle. The legislation should strike an acceptable balance between the autonomy which NHS leaders and managers need if they are to do their jobs well, responding as they judge appropriate to local needs, and a due accountability of the NHS to the Secretary of State and, through him, to Parliament. Here, however, we have neither. The Bill concentrates power over the NHS in the hands of a Minister who is poorly accountable to Parliament in the exercise of much of his power.

It is commonly observed that government in England is excessively centralised. The Minister told us in the debate on ICPs earlier today that the Bill is based on the principle of subsidiarity. However, what purports in the Bill to be an exercise in decentralisation, through the creation of ICBs and the prospect of ICPs, when examined is in fact a hierarchical measure through which power is concentrated in the Secretary of State at the top and is tightly circumscribed below by his powers of patronage and direction.

The constitutional character of this legislation is part of a larger story of Executive aggrandisement by a Government who, armed with a large majority in the elected Chamber, have scant respect for other sources of authority or for the conventions of parliamentary government. That the Government’s majority in the House of Commons is decreasingly biddable does not make its Executive arrogance any less objectionable. Clause 40, like Clauses 39 and 64, should not stand part of the Bill.

Lord Stevens of Birmingham (Crossbench)

My Lords, it is a privilege to speak to this group of amendments. I recognise that a public service as important as the National Health Service has to be democratically accountable to the Secretary of State and Parliament. I also recognise that the broad provisions of the Bill have wide support outside this House from organisations ranging from the Academy of Medical Royal Colleges to the representative organisations spoken of today, the Patients Association, and many others which, at the inception of these proposals, came forward to advocate for them.

However, unfortunately, when we turn our attention to Clause 40 and Schedule 6 there is no such support for the measures therein. These provisions manage, perhaps uniquely, to combine being unnecessary, undesirable and unworkable—a legislative trifecta that has little to commend it.

The measures are unnecessary for the reasons set out by the noble Baroness, Lady Cumberlege. There is already a well-established mechanism for local consultation, under which democratic local authorities can, if concern arises, bat a proposal up to the Secretary of State for a national decision with the advice of an independent expert panel. There is also established public law in this area, which can be tested through judicial review. Just about nobody, nationally, or locally, thinks that the proposals in this part of the Bill are needed. They are, in effect, a solution in search of a problem.

As well as unnecessary, these proposals are undesirable. They would confuse and obscure accountability for the quality and safety of patient care. The Court of Appeal held in Nettleship v South Tyneside and Sunderland CCGs in 2020 that there is no duty to include in a public consultation options which local commissioners deem to be unviable, unrealistic or unsustainable. Yet Schedule 6 would allow the Secretary of State to impose service changes that local clinicians, local patient groups and, indeed, local authorities deem unsafe or unviable. This clearly cuts across the statutory responsibilities of local boards for the safety and quality of care.

Where the Secretary of State has imposed such a service change on the local NHS, is it the Secretary of State who will then be in receipt of Care Quality Commission findings and scrutiny? Is it the Secretary of the State who will be on the receiving end of medical negligence claims, or potentially criminal proceedings? This set of measures completely obscures the well-established accountability for the quality and safety of local care.

I believe that these measures are unnecessary and undesirable, but they are also unworkable. As worded, the definition of a reconfiguration is vague and overly broad. It could capture just about any change in service provision. On page 197, the Bill refers to changes that have

“an impact on … the manner in which a service is delivered to individuals.”

That could cover just about anything, and if hospitals are proposing such a change, they have a duty to notify the Secretary of State.

By contrast, the long-standing Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013, with which your Lordships will be intimately familiar, set a higher hurdle, which is that the consultation requirement applies to

“a substantial development or variation”

in services. In its place, we would instead have, through the Bill, a set of processes that would lead to second-guessing, centralising and politicising, a furring-up of the NHS’s decision-making arteries, which, had these measures been in place during the pandemic, would have handicapped the response, at precisely the time when the NHS needs to be agile and adaptable, and will do nothing to advance the changes needed across front-line care delivery.

For all these reasons, I believe that if the Bill is passed in its current form, Clause 40 and Schedule 6 will become a running sore, not only for patients and local service but for Ministers. There are two possible ways forward. There is the proposal that Clause 40 do not stand part of the Bill, as suggested by the noble Lord, Lord Lansley, which would surgically excise the problem, or there is the group of amendments tabled by the noble Baroness, Lady Cumberlege, which would apply sutures, analgesics and disinfectant. Either approach could work, but one or the other is needed.

Lord Shipley (Liberal Democrat)

My Lords, I am very glad I delayed my speech so that I could hear the noble Lord, Lord Stevens of Birmingham, because I agree with everything he said.

My name is on Amendments 179 to 183 in this group. I shall try not to repeat the comprehensive explanation by the noble Baroness, Lady Cumberlege, of the problems these amendments would address, which are similar to those that we debated in the previous group. I hope that the Minister will accept that the proposals in the Bill as they stand are overcentralising, and that this issue will have to be addressed by the Government on Report.

I agree very strongly with the noble Lords, Lord Howarth of Newport and Lord Stevens of Birmingham, who made unanswerable contributions. In the words of the noble Lord, Lord Stevens, these provisions are unnecessary, undesirable and unworkable, and they confuse and obscure accountability. I hope the Minister will take very seriously what is being said because the Bill’s ambition is to increase transparency and accountability. That is right, but it surely should be prioritised at a local level since that is where services are delivered. The Bill undermines that principle. It thinks accountability should lie in Whitehall, yet there has been no strong call to enable the Secretary of State to intervene earlier in the reconfiguration process and, anyway, there is already an established role for the Secretary of State in cases that are referred. Those processes should not be undermined.

Amendment 179 would change the definition of a reconfiguration of NHS services to ensure that only complex and significant changes to NHS services should be considered. Surely that is right. Amendment 180 would require the Secretary of State to consult all relevant health overview and scrutiny committees plus those organisations delivering relevant services locally along with the integrated care board. That must be right. Amendment 181 would require speedy decisions, and that must be right. Amendment 182 would require the Secretary of State to publish a statement demonstrating that any decision made by the Secretary of State on a reconfiguration proposal is in the public interest and has been taken with patient safety as a priority. That must be right. Crucially, Amendment 183 would prevent Secretary of State acting as the catalyst for a reconfiguration. That, too, must be right.

I hope the Minister will understand that there is much concern about the proposed new powers for a Secretary of State to intervene at any stage in a local service reconfiguration without any need to demonstrate the basis of the information on which their decisions might be reached. There is already a clear process for reviewing proposals for NHS reconfigurations, which are health overview and scrutiny processes charged with establishing whether proposals are in the best interests of their local communities.

What the Government are proposing is not in the spirit of the Bill, and I hope they will take note of the concerns expressed by the NHS Confederation and many others and bring back further amendments on Report to address them.

Lord Patel (Crossbench)

My Lords, I support all the amendments in the name of the noble Baroness, Lady Cumberlege. She introduced them very comprehensively and I agree with what she said. My noble friend Lord Stevens of Birmingham added to it, so much has already been said and I need to be extremely brief.

I concur with my noble friend Lord Stevens of Birmingham that outside bodies, including professional organisations in medicine, oppose these powers and that they will lead to more chaos rather than solving problems. As a clinician, I find the unchecked powers for Secretaries of State over local service reconfigurations that the Bill proposes astounding. Local service reconfigurations should be driven by clinical advice and expert assessment of what services are needed to meet the health needs of a local community with patient safety at the heart, as well as considerations about what resources are available in terms of workforce, infrastructure and the proximity of alternative services.

The powers in the Bill would allow the Secretary of State to initiate service changes without any consultation. How can any Secretary of State feel sufficiently qualified to be making unilateral judgments about what constitutes “safe”? The existing, largely successful, processes, which have already been mentioned, take account of clinical advice and the views of local communities in the final decision have been effective. The noble Baroness gave the example of Kent and Medway stroke services, which were held up by the Secretary of State, not by the consultation. I strongly support these amendments and I hope that the Minister will think about removing the provisions from the Bill.

Lord Lansley (Conservative)

My Lords, I shall be brief. I put my name to Clause 40 stand part, and I think that is the best way to go. I shall add one or two things. First, as Secretary of State, I asked the now noble Lord, Lord Ribeiro, to lead the independent reconfiguration panel, and I never had cause to regret doing so. Secondly, I can say something which other noble Lords cannot, because I am on this side, and I am hoping that we continue to have Conservative Secretaries of State for many years hence. They will be much better off if they do not do this. If the Government take Clause 40 out, they will equally not regret doing so.

Lord Hunt of Kings Heath (Labour)

My Lords, I described at Second Reading, or at some point in a meeting with the Minister, an attempt to save Ministers from themselves. I do not understand why on earth the Government want to put this burden on them. The Government have set out an ambitious programme for reform of the NHS. Why put in a clause that guarantees that that reform will be stalled? We know that reconfigurations—most of us have experienced the issue locally, if not nationally—are very difficult. There is always local opposition, often from some leading consultants, and to get it through you have to be very determined. The noble Lord, Lord Warner is right; once Ministers can intervene at any point—for example, if an MP’s local services are threatened with an unpopular change—even in the Lords, the pressure on them to intervene can be huge.

When I was a Minister, we were always mindful of the experience of my good friend David Lock, the MP for Kidderminster, who lost his seat in 2001 because as a government Minister—and a good egg—he loyally defended the decision to reduce the status of Kidderminster General Hospital and merge with Worcester. That was written on the heart of every MP, so when a proposal threatened them and their constituency, and frankly their seat, the first port of call was the Minister. We now have a system which has offshored this to a large extent, and I agree with the noble Lord, Lord Lansley, that it has been pretty successful.

When the Bill receives Royal Assent and becomes an Act, it will be open season on the Minister and his colleagues. On any reconfiguration where the local MP is troubled, inevitably Ministers intervene, or they use the review device. Consider the issue of children’s heart transplants and the attempt over 20 years to rationalise it, and the utter failure of that approach; that is but one example of the kind of energy that you can get the moment Ministers have powers of intervention.

Lord Lansley (Conservative)

If anyone cares to look at it, it was also a very good illustration of the benefits of the Independent Reconfiguration Panel. Not only did it do something that Ministers could not do; it also did something that NHS management did not do. It is not that we are giving it back to the NHS to do what it likes—it genuinely does something independent.

Lord Hunt of Kings Heath (Labour)

Indeed, we have a rigorous process involving the overview and scrutiny committee, as has been said, plus an Independent Reconfiguration Panel. As the noble Lord, Lord Stevens, said, it is rather like the last debate: before us we have a set of amendments which seek to constrain the power of Ministers, and then an amendment which seeks to remove this power. I am clear that we should try to remove this power, and that this is the best course. It will be very interesting to hear from the Minister exactly why Ministers want to put this burden on them, and what benefit they can possibly see in it.

Lord Warner (Crossbench)

My Lords, I want to briefly make clear my support for this group of amendments and try to be consistent with what I said on the previous group. The only amendment which causes me to have pause for thought is Amendment 183. The NHS, perfect in every form of course, has been known to have its arteries fur up occasionally. Sometimes there is a need for scale in some services. I want to mention three or four services where scale, after clinical consideration, is important. Pathology is a good example, where we need to have more scale than many of the local pathology departments. Another one, which the Royal College of Surgeons has advocated, is elective surgery hubs, which may mean taking stuff away from a particular local hospital. Another good example is the issue of stroke specialisation, which is beneficial for patients. I have given you three examples where we do not want to totally neutralise the Secretary of State. Sometimes Ministers have a use; it may be few and far between, but occasionally they have some use. We do not want to say that you cannot ever be a catalyst for change. That seems a bit drastic in Amendment 183, and I ask the noble Baroness, Lady Cumberlege, to think about that, because sometimes scale is important, with clinical advice for the benefit of patients.

Baroness Walmsley (Liberal Democrat)

My Lords, I am in favour of surgical excision. I oppose the powers of the Secretary of State in Clause 40 and Schedule 6 to intervene in decisions on reconfiguration of health services. Far be it from me to want to protect Conservative Secretaries of State for Health from themselves, but I warn that if they use these powers they will eventually get the blame.

The noble Lord, Lord Stevens, gave a number of very good reasons why this clause should be deleted from the Bill. My reason is somewhat different. I think these powers are very dangerous. We have recently seen how the Government’s powers to provide or withdraw funding from a proposal, let us say, to build a new school or improve infrastructure in a particular constituency have got them into trouble. We have heard allegations made against Government Whips by Members of Parliament of actions which could be criminal offences of bribery. It is alleged that, in seeking to ensure support for their leader, they are threatening Members of Parliament that funding for their projects, which have already been declared to be in the public interest of their constituents, will be withdrawn unless they behave in a certain way, so political considerations would trump public interests.

Like the former Member of Parliament to whom the noble Lord, Lord Hunt, referred, all politicians know that the provision of a new hospital or clinic or, on the contrary, the closing of a healthcare setting are very sensitive considerations in elections. All parties ensure that the voters know their views on these matters at election time and in between elections. The Prime Minister knows this. Why else would he put such emphasis on his promise of 40 so-called new hospitals by 2030 if this were not the case? It makes a good headline, even if we know that some of them are not new and some of them are not hospitals.

The powers of reconfiguration sought by the Secretary of State in Clause 40 would give the Government the ability to change the decisions of those put in place locally and well qualified to make them in a non-partisan and needs-based way, thus allowing the Government to wield unwarranted political power. It is probable that this Government would not be able to resist doing so, for the wrong reasons, and it is incumbent on all parties to stop them by deleting Clause 40 from the Bill. Indeed, I do not think that I would be in favour of giving these powers to any Government of any political party; they are just too liable to be misused.

Baroness Thornton (Labour)

I think the Minister is probably getting the message by now. I shall speak to my Clause 40 stand part debate and the amendment in the name of my noble friend Lady Merron. Somebody said earlier that we can be sure that the proposals to allow greater powers for the Secretary of State to intervene in reconfigurations is not something that the NHS asked for. That is almost certainly true.

I congratulate the noble Baroness, Lady Cumberlege, on her great coalition- building; she is very good at building coalitions in support of the things that she cares about, and she has definitely managed to do that with this group of amendments.

Noble Lords have pointed out that, at the moment, we have a system which works. It may be slow, and it is absolutely true that it has processes which take too long, but there are elements of public and patient involvement through consultations. The changes made in 2012 under the noble Lord, Lord Lansley, brought in four tests and some rigour of external independent evaluation. The core of that process still exists. As a non-executive member of the board of the Whittington, I can say that this is exactly the kind of thing that we have been involved in in our own hospital.

The consultations might be improved, but they will not be improved at all by this proposal. In fact, I think that this clause is very odd indeed. It is a bad idea, and it adds nothing to the core of this Bill and its central aim, which is to grow place-based independent and innovative healthcare, and it probably needs to go.

Lord Kamall (Conservative)

I thank all noble Lords and noble Baronesses for their contributions. I would be pretty blind or deaf not to understand the level of concern across the Committee. However, if noble Lords will bear with me, I shall try to set out some justifications. I preface my remarks once again by saying that I strongly hear the views of the Committee, and I welcome the fact that previous Ministers and Secretaries of State are warning us not to fall victim to this, as it were.

I start by explaining some of the justifications. It may be helpful to start with some of the observations. The public expect Ministers to be accountable for the health service, which includes service change. We see the new intervention powers enabling the Secretary of State to act as a scrutineer and decision-maker for reconfigurations, to intervene when, for example, they can see a critical benefit or cost to taking one or other course of action, or to take action where there is a significant cause for public concern. Having said that, we accept that public concern could well be a political one, so we understand the concerns expressed by noble Lords.

We expect this power to be used infrequently and, when it is used, it will be done proportionately and transparently. All decisions made using the new reconfiguration call-in power in the Bill must be published, which will ensure transparency and proper scrutiny. The new call-in power for reconfigurations will allow the Secretary of State better to support effective change and respond to stakeholder concerns, including from the public health oversight and scrutiny committees and parliamentarians in a more timely way.

I turn to Amendment 183. Given the role of the Secretary of State, it is proportionate to ask him or her to ask local commissioners to consider service change where there is concern. Once again, we do not expect this power to be used frequently, and all service changes, regardless of whether a Secretary of State has been a catalyst, will still be required to go through due process and where appropriate local consultation. Before any proposal was agreed, the planning and assurance for a proposal would still have to include strong public and patient engagement, consistency with a current and prospective need for patient choice, a clear clinical evidence base and support from commissioners.

I turn to a couple of points from my noble friend Lady Cumberlege and the noble Lord, Lord Stevens, who said that the powers were unnecessary, undesirable and unworkable. To look at the necessity of the power, the current system can lead to referrals coming very late to the Secretary of State, and the power will allow the Secretary of State to intervene earlier to avoid that. For example, my noble friend Lady Cumberlege referred to the Kent and Medway stroke services reconfiguration proposal. One reason why it was lengthy was the need to review the right options for the system. We are hoping that it goes something like this—that you could either knock heads together or, as someone put it more starkly, have a sword of Damocles over them to come to a decision more quickly. But once again we understand the concerns.

I turn to Amendment 180. It is vital that all local views, including that of the health overview and scrutiny committees, are represented in the reconfiguration. The new power in the Bill will not replace the important local scrutiny and engagement that plays such an important role in service change decisions, and a duty for those locally responsible for service change proposals to consult local authorities will remain. It is right that for commissioners and providers who are responsible for planning, assuring and delivering reconfigurations the duty to consult HOSCs and other local stakeholders continues. We are also introducing a duty for NHS England, integrated care boards, NHS trusts and foundation trusts to provide information and other assistance required for the Secretary of State to carry out functions. That will allow the Secretary of State to take into account local views. We expect the Independent Reconfiguration Panel to consider the views and carry on the way it works.

On Amendment 181, we recognise the importance of timely decision-making—

Baroness Thornton (Labour)

Is the Minister saying that the Government and his department do not trust NHS England to fulfil this function any longer?

Lord Kamall (Conservative)

No, we are saying that, where there is an issue and it is taking a long time, this measure allows the Secretary of State to come in in a more timely manner rather than waiting for a late referral.

Baroness Thornton (Labour)

Does the Minister think that will save time?

Lord Kamall (Conservative)

Yes.

Baroness Cumberlege (Conservative)

My Lords, before the Minister goes on—just so I do not lose the thread here— could he tell us why the Independent Reconfiguration Panel has to go? What are the problems with it? Why do we have to move it off in order to bring in a politicised system with the Secretary of State making the decisions?

Lord Kamall (Conservative)

I must clarify here. I have said that we expect the Independent Reconfiguration Panel to continue to consider views. We are not getting rid of it.

Baroness Cumberlege (Conservative)

So that presents a problem. What does the Secretary of State do, and what does the independent panel do? Is it a question of the scale of the change that is being proposed? Where are the boundaries?

Lord Kamall (Conservative)

The Secretary of State will be advised by the Independent Reconfiguration Panel, especially where there is a difficult decision that takes time, just as in the case of the Medway.

On Amendment 182, the Secretary of State’s decision-making process must already take into account the public law decision-making principles, all relevant information and his legal duties, including the public sector equality duty. The Secretary of State is also under several duties in the National Health Service Act 2006, including to promote a comprehensive health service and to support continuous improvement in services.

Lord Hunt of Kings Heath (Labour)

There are a lot of marginal seats, and there is going to be a general election in two and a half years—maximum. A lot of the reconfiguration proposals usually relate to smaller places with smaller hospital or DGHs because their viability is often in doubt. So it is quite clear to me that any MP, particularly government MPs, will immediately take any threat of that sort to their local services to the Secretary of State. That will not speed up the process; it will guarantee the opposite. The signal that I would get from the health service as a result of this is: “Forget reconfiguration proposals until after the next election because you ain’t going to get any through.” That is why we think this is a disastrous move.

When the Minister says there will not be many interventions, that is just nonsense. The moment that MPs know the Secretary of State has the power to intervene at any stage, they will be knocking at the door of the Government, who will wilt under that pressure, because that is what happens. Then they will go back and say, “We need to have an independent review of that before you start the process.” There are so many dodges available to a Minister, if you want to dodge making a hard decision in this area, that it will completely paralyse the health service. That is why this debate is so important because it is related to the last one; the result of Ministers gaining direct control will be to delay and reverse, and I am afraid that the hopes that Ministers have for a dynamic, forward-looking health service will come to nothing.

Lord Warner (Crossbench)

My Lords, following on from the noble Lord, Lord Hunt, I ask the Minister to consider the point that I was trying to make about Amendment 183. The Minister and the Government have got this the wrong way round: if he is actually concerned about levels of efficiency, the supply of services and the issue of scale—and the issue of scale is a very real one—then he needs to be at the front of the process, not the end of it. It is a bit late in the day to be having these ideas about scale in a particular set of services when you have gone through the agony of the local consideration of reconfigurations. As a Minister, it would be better, if I may say so, to set out your views at the beginning with the clinical arguments for why this makes sense. Doing it at the end is bound to lead to suspicions. That is why I was asking the noble Baroness, Lady Cumberlege, to look at the wording of Amendment 183. I say to the Minister that he is putting his involvement at the wrong part of the process.

Lord Kamall (Conservative)

We agree with the noble Lord. We do not want to waste time by being able to come in only late in the process. To avoid egregious uses of power, all uses are subject to public law principles and challengeable by judicial review.

We agree with the intention behind Amendment 216 but we do not feel it is necessary. Commissioners, NHS England, NHS trusts, NHS foundation trusts and a range of other bodies are required to have regard to the NHS constitution in performing their functions, as set out in Section 2 of the Health Act 2009, which goes wider than this proposed duty that would apply to the Secretary of State.

In addition, the NHS pledges that all staff will be empowered to put forward ways to deliver better and safer services for patients and their families. If a service change is material, the commissioner has a duty to consult with all impacted parties to understand their views and these existing engagement duties can encompass NHS staff. Anyone can respond to a public consultation and there is well-established process and precedent for taking these views into account. Beyond the pledge itself, it is the responsibility of an employer to ensure that staff are appropriately engaged and involved in service change decisions. The need to engage and consult is contained within organisational policies and relevant employment legislation.

I have heard what a number of noble Lords have said, especially former Ministers, Secretaries of State and others involved in the system, and it is quite clear that I need to go back and consult further. In that spirit, I ask that noble Lords do not move their amendments, and hope that I have explained the reasons why.

Clause 40 agreed.

Amendments 177 and 178 not moved.

Schedule 6: Intervention powers over the reconfiguration of NHS services

Amendments 179 to 183 not moved.

Schedule 6 agreed.

Clauses 41 to 43 agreed.

Schedule 7 agreed.

Clause 44 agreed.

Clause 45: NHS trusts: wider effect of decisions

Amendments 184 to 186 not moved.

Clause 45 agreed.

Clauses 46 to 50 agreed.

Clause 51: Appointment of chair of NHS trusts

Amendment 187 not moved.

Clause 51 agreed.

Clauses 52 and 53 agreed.

Clause 54: Capital spending limits for NHS foundation trusts

Amendment 188

Lord Crisp (Crossbench)

My Lords, my five amendments to Clause 54 follow on quite closely from the discussions we have just been having about direction. I am very grateful to the noble Baronesses, Lady Walmsley and Lady Morgan of Huyton, and my noble friend Lady Neuberger for their support for these amendments.

The Bill introduces a new power for NHS England to set capital spending limits for NHS foundation trusts. There are two points of context that are worth exploring here. First, obviously the Bill is all about integration, partnership and collective action, within which individual parties need to retain some autonomy as well as giving out more, or perhaps pooling, some sovereignty at the local level. We should also be aware that at the national level NHS foundation trusts’ capital comes within the overall capital allocated by Parliament, and so recognise that, at the end of the day, there needs to be some kind of reserve, backstop power to set foundation trusts’ capital limits.

It is all about achieving the right balance. I understand that three years ago, as part of the thinking behind these wider changes in the NHS when they were being developed, NHS England and NHS Improvement agreed with foundation trusts a set of proposals for this that were set out in the NHS’s 2019 legislation proposals. I am sure my noble friend Lord Stevens of Birmingham can comment on that as appropriate. This clause cuts right through these agreements.

My explanatory statement makes the terribly simple point that what I am trying to do here is to

“seek to deliver the legislative proposals agreed with NHS England and NHS Improvement in 2019.”

I do not see why that is not happening. So, my first question to the Minister is: please could he explain what has changed since 2019 and why the agreement that was struck then is no longer good enough for the current circumstances?

Secondly, these capital freedoms are important. NHS foundation trusts need to be able to invest in order to deliver their services. They need to be able to do so for their boards to be able to exercise their own accountability, and they need to be able to plan. There is also a slightly softer reason why these are important as well, which is about motivation. It is very clear that working efficiently to generate capital to create that freedom is a significant motivator for clinicians within these trusts. I say that as somebody who led two trusts—not foundation trusts—into trust status in the 1990s, and I know how big an issue that is in terms of the staff within these organisations.

So, against that background, these directions should be exceptional and not the rule, and these amendments set out quite clearly ways to make this work in practice. Amendment 188 states that any direction must be about an individual trust and for a specific region and not in any sense a blanket action. Amendment 189 says that it should be used only after all other means of managing a capital expenditure problem have been exhausted; it must be very much a last resort. Amendment 190 says that NHS England should account to Parliament for the action, giving the reasons—telling the story, if you like—and publishing them so that they can be seen very clearly. Amendment 191 makes it clear that any directions should cease after one year, and Amendment 192 is more minor tidying-up. This is a very clear set of amendments which would put in place the 2019 agreement. I see no reason why that should have changed.

I have three questions for the Minister. First, why is this a change from that agreement? What has changed? Why can we not just have that agreement? Secondly, does the Minister agree that this must be very much a last resort, and therefore needs to be hedged round with these sorts of amendments? Thirdly, will the Minister ask his officials to look at this again, perhaps with the involvement of representatives of NHS foundation trusts and NHS Providers, as indeed happened in 2019? I beg to move.

Baroness Henig (Labour)

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.

Baroness Brinton (Liberal Democrat)

My Lords, the amendments in this group, so ably introduced by the noble Lord, Lord Crisp, aim to restrict the powers of the Secretary of State to limit the capital spending of NHS foundation trusts and to ask for the reinstatement of the 2019 agreement. It is important to note that these amendments do not remove the powers as a whole but tighten them to avoid changes by the Secretary of State to funding that would delay capital works which are needed and urgent on health and safety grounds.

The current capital spending backlog is £9.2 billion, half of which is deemed to be high or significant risk, which is why it is shocking that, in October last year, the Government announced additional service funding for the NHS but did not include a capital settlement. Last summer, the NHS Confederation surveyed members, and found that 96% of healthcare leaders feared that they would not receive enough capital money at the forthcoming spending review. The NHS Confederation rightly says that capital investment drives productivity improvements and that insufficient funding is likely to hamper the Government’s plans for the NHS. When NHS England, the Department for Health and Social Care, or Ministers have the ability to backtrack, delay or even cancel capital expenditure, conditions deteriorate, and sometimes there are serious incidents.

My town of Watford, in south-west Hertfordshire, has seen the impact of this capricious behaviour all too well. Twenty years ago, a reconfiguration plan was launched at West Herts Hospitals NHS Trust for a much-needed new hospital, which would replace three older hospitals in Watford, St Albans and Hemel Hempstead with a completely new one, which it was eventually agreed would be in Watford. Given the debate that we have just had on configuration, it is interesting that the councils, CCGs and other stakeholders worked closely and cross-party with the trust, with a new vision for hospital provision in our region. About 15 years ago, capital expenditure approval was given, and preparatory work on site clearing and new road access was all done by 2015, mostly funded by local councils. Since then, the department, Ministers and NHSE have stop-started capital funding for the next stages, with good news always coming in the run-up to a general election—ironic, really, given that in our community there is total cross-party support for the new hospital. The anger about further delays is cross-party too, definitely blaming the centre, whether that is Ministers or the NHS.

Under the 2010 configuration, the NHS capital expenditure plan lists said that the new hospital should have been completed this year. It has been taken off the list and put back on again three times in the last two years. Indeed, it is one of the 40 so-called new hospitals that this Government have announced as a new proposal on a regular basis, much to the bemusement, and sometimes amusement, of local residents.

In April 2020, the hospital had to declare a critical incident, as its oxygen infrastructure collapsed in the first wave of the pandemic. Because of the delays, the hospital had been begging for an oxygen system upgrade for years, warning that any bad winter would cause the oxygen system to fail. It was denied, because the new hospital was just around the corner. As a result of that, an emergency oxygen upgrade was put in place, but the new hospital is now 20 years overdue, and the building is creaking. The Department of Health now says that likely completion of the new hospital will be in 2028, assuming no further delays. What else will fail before then? This is not a foundation trust; it is a hospital trust, and it is still not protected from that behaviour.

These amendments would ensure that the stop-start model—removing permission and then reinstating permission—that many trusts such as Watford General Hospital face over years would be less capricious. It would give foundation trusts more assurance to long-term planning, avoid the high level of emergency repairs and need for temporary provision, and, above all, be a more transparent and fairer way to deliver capital expenditure. Without the 2019 agreement, we risk putting foundation trusts back in the parlous stop-start model.

Lord Lansley (Conservative)

My Lords, I intervene briefly to say that I support the amendments in the name of the noble Lord, Lord Crisp. We are grateful to him for tabling them, and indeed for presenting them so very well.

I also rather enjoyed the opportunity from the noble Baroness, Lady Brinton, to think back to 2011, as I think it was, when I went to visit Watford General—I probably announced a new hospital then, but I cannot quite remember. She said the local connections were all funded by the local authority, and I seem to remember paying for the roundabout outside Watford General Hospital, because it was so instrumental to the process of the redevelopment. Anyway, that is by the way.

What I am really looking for from my noble friend on the Front Bench is to understand the mischief to which the Government’s proposals in Clause 54 are the remedy. Certainly, when I was Secretary of State—which is a long way back; we were not in deficit but we did not have a lot of money—the issue every year with the capital expenditure of FTs was that they always told us that they were going to spend a lot and then did not spend anything like as much. To account for that in the public accounting system, we had to make some heroic assumptions about how much less they would spend than they said they were going to spend.

It may be that the department is saying that the way we get round all this is to set very tight limits in the first place—to say where we think they are going and what we think they can spend. This, frankly, is a recipe for disaster for many trusts, because the reason they underspend is that there are so many difficulties in planning and executing capital expenditure projects.

I am trying to find out the purpose behind the Government taking such strong powers in relation to capital expenditure. I rather hope that they might see merit in the amendment from the noble Lord, Lord Crisp.

Lord Stevens of Birmingham (Crossbench)

My Lords, I will be brief. In response to the noble Lord, Lord Lansley, in fairness, there is logic to the broad direction being set out by the Government here. As the financial health of foundation trusts improves, their ability to seek self-generated capital investment will, in all likelihood, be much higher, looking over the next four or five years, than it has been during the more constrained financial circumstances of prior years. So it is not unreasonable to have a set of measures in the Bill that would enable Ministers to ensure that the NHS sticks with the capital expenditure, voted for by Parliament, for the NHS in any given year; nor is it unreasonable on the part of the Government to seek to ensure that there is a mechanism by which that capital can be allocated fairly across the country according to need, rather than purely according to an individual institution’s ability to finance it.

All that being said, rather than this being a fundamental matter of principle in the way that our last two discussions have been, these amendments have a lot to commend them. They are entirely pragmatic and put the right safeguards around what should be only an emergency power. As the noble Lord, Lord Crisp, laid out, that was the basis on which a consensus was achieved back in 2019. It provides good incentives at trust level for sound financial management and, frankly, it provides a bit of a pressure release or a safety valve against an overly artificially constrained capital settlement in certain years or parts of the country.

I very much hope that, in the constructive spirit with which I think these amendments are being advanced, this is something that the Government might consider favourably.

Baroness Neuberger (Crossbench)

My Lords, I declare an interest as chair of University College London foundation trust. I want to echo everything that has been said. I do not really understand why what was a carefully negotiated agreement seems to have been reneged on. I think it would be great to have some kind of explanation from the Minister as to why that should be the case.

I rather agree with the noble Lord, Lord Lansley, that some of those freedoms for foundation trusts are essential, and that fettering foundation trusts too much will not do much good. I really want to agree with everybody and not waste any more time, but please can we have an explanation?

Baroness Walmsley (Liberal Democrat)

My Lords, I have added my name to the amendments in this group, so ably introduced by the noble Lord, Lord Crisp. The noble Lord, Lord Lansley, asked: what is the problem to which Clause 54 is the solution? But I want to know why the Government think that Clause 54 is the solution to the real problem. The real problem is that, over recent years, the funding focus has been on revenue to support the greater demands made on the health service, and, apart from occasional injections of extra capital funding, capital budgets have been inadequate. In the meantime, hospital trusts of both types—foundation and NHS—have found it impossible to keep up with the need for repair and maintenance to buildings and plant and, crucially, to invest in modern technologies that would enable them to deliver more effective care.

An NHS Confederation survey prior to the spending review in October last year found that 81% of leaders said an insufficient capital settlement could impact their ability to meet estate and service safety requirements, and 69% of leaders said a poor capital settlement threatens their ability to fully embed digital transformation in their care and even hampers their efforts to maintain staff levels or keep appropriate records of patients who need elective care. Many of our hospitals and clinics are located in very old buildings and some certainly show it, but capital funding has not kept up with demand for years, and this new Secretary of State power in Clause 54 will not solve the wider problem. St Mary’s Hospital in Paddington will need £1 billion to repair the hospital or services could be shut in six to nine years. Many buildings on the site date back to the hospital’s founding in 1845. One part of the hospital can no longer be used, as the building will no longer support the weight of modern hospital beds.

Annual statistics show that each year we do not invest enough and the problem only becomes bigger. We must keep reminding the Government of the consequences of this. It is worth noting that many areas of the country with the worst health outcomes have older estates, so upgrading these estates will lead to better outcomes for these populations. This is a health inequality issue. The problems are not confined to England. I could tell noble Lords some terrible stories about my local hospital in Wales, where health is devolved. It is easy to find examples of maintenance issues from hospitals, as these get a lot of coverage. The headline “Hospital roof crumbling” is always of interest to local media. However, there are also thousands of small community hubs and mental health trusts that desperately need new and updated facilities and equipment too, and they cannot shout as loudly. The backlog currently stands at £9.2 billion, with half of that, as we have heard, described as involving a high or significant risk to staff and patients.

The new powers for the Secretary of State proposed in Clause 54 would restrict the spending of any individual foundation trust in the same way as NHS trusts are currently limited. This may appear to be fair, and I do not oppose the principle of the Secretary of State having the power. However, it appears to me to be contrary to the principle of freedom of the foundation trusts as outlined by the Government when they were set up, and certainly contrary to the agreement made by NHS England and NHS Improvement with the sector through the September 2019 legislative proposal mentioned by the noble Baroness, Lady Neuberger, which was the result of detailed negotiations with NHS Providers on behalf of their foundation trust members. The reason given by the Government is that this is in order to avoid the overall health budget being exceeded. However, the power needs to be a very narrow reserve power, to be used when all else has failed, and that is what these amendments would ensure.

The Health and Social Care Committee in another place has made it clear that the powers should be used only as a last resort. It has to be remembered that, if a repair needs to be done on the basis of health and safety but is not done, it is the trust that will be blamed for any harm that comes to staff or patients, not the Secretary of State. They are accountable, and that is right, but it does not help them to keep people safe. The noble Lord, Lord Crisp, has tabled this group of amendments to narrow the scope of the power, to ensure in outline what must be done before it is used and, crucially, in my opinion, to require the agreement of Parliament. Currently, the proposal, like many others in the Bill, cuts Parliament out completely. Where the Government are proposing to wipe out an agreement with the sector which is only just over two years old, there must be compelling reasons, mitigating actions and parliamentary scrutiny.

Baroness Merron (Labour)

My Lords, I am grateful to the noble Lord, Lord Crisp, for introducing this group of amendments and setting out for your Lordships that what we need to see is a reasonable system of checks and balances which will serve financial flows and objectives and where, if tensions arise, they can be resolved quickly, fairly and transparently. Certainly, these amendments provide for this.

Currently, the situation we have in the Bill, as we have heard through the contributions of a number of noble Lords, is that we have a proposal for a power to limit the capital spending of foundation trusts. As we have heard in this important though brief debate, such a use has to be carefully controlled. That is not least because appropriate freedom over capital spending is absolutely central if providers are to fulfil their responsibilities to deliver safe care, and not just safe care but care that provides for the locality in the way that is required—something the noble Baroness, Lady Neuberger, emphasised. The noble Lord, Lord Stevens, made the point that, although it is reasonable to have provisions in the Bill, what are the practical impact of those provisions and how extensive should they be? These are the questions which I believe we have before us, as articulated by the noble Lord, Lord Lansley.

Not only did we hear in the course of the debate that the Bill does not mirror the NHS England and NHS Improvement September 2019 legislative proposal, which is the bedrock of what we should be looking at, but we find in the Bill that the provision cuts entirely across the unequivocal position of the Health and Social Care Committee. It said that the power to set capital spending limits for foundation trusts

“should be used only as a last resort.”

I therefore hope that, in responding, the Minister will be able to explain to the Committee why the provisions in the Bill have not taken account of these important points, and points of agreement and good practice. I hope that he will reflect on the fact that these amendments improve the Bill and will feel able to take them forward.

Earl Howe (Conservative)

I am grateful to the noble Lord, Lord Crisp, for bringing this debate before the Committee. I have listened to him and other noble Lords with care. Before I turn to the detail, it may be helpful if I explain the reason why Clause 54 is in the Bill.

Clause 54 originated as a legislative proposal made by NHS England and NHS Improvement to the Government in 2019. In making this recommendation, NHS England, under the leadership of the noble Lord, Lord Stevens, worked closely with representatives of the foundation trust sector. The key principle behind this clause is a recognition that the interests of the whole system should be prioritised in decisions about capital spending while also respecting the freedoms and accountabilities of NHS foundation trusts.

The noble Lord, Lord Crisp, asked whether it was our intention that the power in the clause would be a last resort—absolutely yes. Clause 54 is a reserve power to be used only in extreme circumstances to avert the risk of a foundation trust pursuing its own private capital objectives—if I can put it that way—that are not prioritised at a system level. I say to my noble friend Lord Lansley that that is the potential mischief that the clause is trying to address.

The control will operate in the context of the new NHS capital regime, introduced in 2020-21, at ICS area level with planning at a system level to take a holistic view of the local healthcare needs and balancing the allocated operational envelope for providers at that level. Having a power to set capital spending limits for NHS foundation trusts, as can already be done for NHS trusts, ensures an equitable distribution of capital to better enable the investments with highest priority and that achieve the greatest benefits for patients.

At this point I will push back, in the nicest possible way, at the noble Baroness, Lady Walmsley, about the actual level of capital spend. At the spending review 2021, capital spending was set to increase over the Parliament to £32.2 billion for the period from 2022-23 to 2024-25. That includes a £5.9 billion capital investment for the NHS to tackle the backlog of non-emergency procedures and modernise digital technology. As a result, the Department of Health and Social Care’s core capital budget will reach its highest real-terms level since 2010.

Baroness Walmsley (Liberal Democrat)

Governments always tell us how much money they have spent, but the question is always: has it met the demand? The money that the Minister has just mentioned is to try to cover the backlog of elective procedures; it does not cover the backlog of repairs.

Earl Howe (Conservative)

There will be money to address the backlog of repairs within that total.

Of course, it is our intention that a capital limit would be imposed by NHS England only if other ways of resolution had been unsuccessful. I will take the Committee through some of the detail, because it is important.

Amendments 188 to 192 would further restrict how the power can be applied. Amendment 188 would modify the clause by inserting “individual trust”. This modification is unnecessary because new Section 42B already ensures that an order relates to a single trust.

Amendment 191 would limit the order to one financial year, but, instead of that, the guidance prepared by NHS England will set out that any capital expenditure limits will apply to individual, named foundation trusts. We envisage that most will apply for the period of budget allocation, which is a single financial year.

Amendment 189 would insert steps that NHS England must take before applying the control and limit when an order may be made. The amendment also links the power with the capital planning function held by ICBs in new Section 14Z54. That plan may not always relate to a single financial year and can be amended in year; for example, for big capital projects, the plan could be set for several years, and in such a scenario it would be difficult to determine whether a foundation trust exceeded the plan in the early years. Amendment 189 would undermine the ability to impose the limit in a timely way and would mean that any limit could realistically be applied only when an overspend had already occurred or was committed to. That would risk funding being unfairly taken away from other areas.

Amendments 190 and 192 contain a requirement to lay a report before Parliament alongside a statutory instrument containing the order. That would cause significant delays in the power’s application. There is already a requirement in the Bill for NHS England to publish any orders which place a capital limit on a foundation trust and for guidance to set out the circumstances in which it is likely to impose a limit. We expect the guidance will also state that representations made by the trust will be published by NHS England.

As I mentioned, it is our strong view, supported by NHS England, that the powers and safeguards in the Bill create a proportionate and fair balance. These measures will ensure that if a foundation trust were actively to pursue capital expenditure that is not aligned with local priorities or affordable within local budgets, there is a means to prevent this as soon as possible.

Lord Crisp (Crossbench)

I thank the Minister for that reply. I have one point to make and one question. My point is that an NHS foundation trust may cover an area that is bigger than one ICB, and some of the bigger ones obviously do, so it does not quite work in the way that the Minister talked about. My question, and it is my final question, is: will officials re-engage with NHS Providers on behalf of NHS foundation trusts to discuss this matter further in the light of what we are saying so forcefully to the Government about pragmatic solutions to find a way forward to achieve the right balance and what the Minister has said in his response?

Earl Howe (Conservative)

I had not quite finished the remarks I was going to make, so perhaps the noble Lord will bear with me. I was trying to say that the measures will ensure that there is certainty for all providers about their capital expenditure. It will also prevent the need unfairly to take planned funding away from other providers, such as NHS trusts, where NHS Improvement and, in future, NHS England, set routine capital expenditure limits just to keep expenditure within system control totals, or national capital limits when a foundation trust exceeds its capital limit. Operational detail of how capital expenditure limits are set is best dealt with, we think, in guidance, where we can ensure flexibility and future-proof the provision, rather than in the Bill.

I hope that those remarks are helpful and will persuade the noble Lord to withdraw his amendment this evening. I say to him, as I did at the start, that I have listened carefully to the points he has made in support of his amendments, and points made by other noble Lords, and I undertake to take these points away for further consideration between now and Report. I am aware that my officials are working closely with NHS Providers on a number of issues, and I very much hope that we can resolve any points of difference to everyone’s satisfaction.

Lord Crisp (Crossbench)

I thank noble Lords who have spoken in support of the amendment, for the very clear message that has been given. I also thank the Minister for that reply and those final remarks about thinking about this further and discussing it as appropriate with NHS Providers. On that basis, I am very happy to withdraw my amendment.

Amendment 188 withdrawn.

Amendments 189 to 192 not moved.

Clause 54 agreed.

Clauses 55 to 58 agreed.

Clause 59: NHS foundation trusts: wider effect of decisions

Amendments 193 to 195 not moved.

Clause 59 agreed.

Clauses 60 and 61 agreed.

Amendment 196 not moved.

Schedule 8 agreed.

Clauses 62 and 63 agreed.

Schedule 9 agreed.

Clause 64 agreed.

Clauses 65 and 66 agreed.

Clause 67: Wider effect of decisions: licensing of health care providers

Amendments 197 and 198 not moved.

Clause 67 agreed.

Clause 68: The NHS payment scheme

Debate on whether Clause 68 should stand part of the Bill.

Lord Lansley (Conservative)

I am sorry to interrupt when the Committee was making such good progress. This clause brings into effect Schedule 10 as an NHS payment scheme, which is to replace the national tariff. Unlike the debates that we have just had about Clauses 39 and 40, I have initiated this stand-part debate not to argue that we should simply take it out but because I simply do not understand yet what the precise differences are that the Government intend between the national tariff and the new payment scheme. I am trying to find out more about it in order that we stand some chance, not least at Report, of seeing whether there is a reason to amend or simply approve what the Government are proposing.

We could have a long debate about this but I am not proposing to do so. If I may, I am going to ask a few questions of my noble friend but do not expect to receive all the answers straight away. These are often things that are easy to put down and send to noble Lords, because we will then have a chance at this stage to think about them before Report.

I can see one obvious difference. In new Section 114A, inserted by Schedule 10, new paragraph (b) includes in the payment scheme provision for payments for public health functions under the NHS Act 2006, which is specifically excluded in the tariff. I can see a difference. Beyond that, I start to lose track of what the differences might be.

The tariff under the 2012 legislation allows not only for payments for episodes of care but for services to be bundled; it allows for year of care budgets; I think it allows for—I cannot see any reason why it does not, and certainly work was done to look at this—outcomes-based pricing; and it allows for local price agreements or national prices. Many of the things which, on the face of it, the new payment scheme is designed to allow, seem already to be allowed. What are the differences?

My first question to my noble friend is this. There is no reference in the new NHS payment scheme to what are effectively national prices, such as the national tariff—if we ignore the word “tariff” and remember that it includes the word “national”. To what extent is the new NHS payment scheme designed to do away with national payments or national prices? In new subsection (3), there is different provision for the same service by reference to different circumstances or areas. We could therefore have regional and local pricing set nationally. That, to me, is an innovation, though I am not sure whether or not it is intended.

Secondly, the national tariff made specific reference to non-discrimination between providers by reference to their status, including, specifically, not paying private providers more than could be paid for a public sector or NHS provider. This new payment scheme refers to different provision for different descriptions of providers. Is it intended that the power should be taken back to pay different amounts to private providers than are paid for public sector providers?

On the payment scheme, there is a very complicated subsection, subsequent to that, that talks about provision of services resulting in

“a fair level of pay for providers of those services”

and refers to differences in costs and services provided. What is intended by that? On differences in services provided, I can see, for example, that if a price is being paid to one provider for a routine service and another provider—which may often be the NHS provider—provides intensive care back-up, the fact that this back-up is available should be reflected in the price they are paid, because, inherently, they have to provide additional resources for it. Is that what is intended? Are other differences likely to result from this?

I then come to my final, and in a way most important, question. I have discussed the point about the Government appearing—the noble Lord told me I was wrong about this—to have abolished the purchaser-provider split. Maybe I was wrong, because here, under the rules that are to be set, we find that they

“may allow or require a price to be agreed between the commissioner and the provider of a service.”

Under all this, the purchaser-provider split has re-emerged, somewhere in Schedule 10. Is that what this means, and is it to be agreed by negotiation or by reference to some other mechanism? One of the fundamental issues about the national tariff was that it was intended to be a negotiated outcome between NHS England and NHS Improvement, on behalf of the commissioners on one side and providers on the other. Who is going to engage in these negotiations and who will be the court of appeal, as it were, in relation to that? What is intended by the Government?

I ask all these questions because we just do not know any of the answers—I certainly do not, but maybe I am missing something. If the Government can share further information about some of these points, that would help me to know whether we want to help speed the clause on its way, or interfere with amendments on Report. I move that the clause does not stand part of the Bill.

Lord Davies of Brixton (Labour)

I wish to address Amendments 201A, 201B and 201C—my name has been left off Amendment 201A for some reason, but I support all three. Indeed, I support the stand-part debate initiated by the noble Lord, Lord Lansley.

I have attended virtually the whole debate in Committee and have been pretty sparing in my contributions, but on this occasion, I am going to make three speeches in one. I have been asked to pass on the thoughts of my noble friend Lord Hendy, who is unable to be here this evening, particularly given the time—though we are meeting a bit earlier than we perhaps expected. The same is true of my noble friend Lady Blower. Both my noble friends have considerable experience in this area and wanted their thoughts to be added to our debates this evening.

My noble friend Lord Hendy tabled these amendments. I have his remarks here; what he says might be of assistance to the noble Lord, Lord Lansley, in that he explains that this Bill, among other things, is designed to facilitate the outsourcing to private contractors of NHS services which are currently carried out in-house. That may not be explicitly stated, but it is clearly one of the underlying aims.

That is the Government’s policy, even though it is firmly opposed by most of the citizens of this island. That said, the purpose of these amendments is to protect NHS workers from the consequences of this policy. Usually when public services are outsourced, the contractor makes profit by reducing the number of staff performing the work formerly done in house and by cutting staff wages, terms and conditions. The TUPE regulations mitigate that process, but usually only by delaying it.

These amendments do not prevent staff reductions consequent on outsourcing beyond the protections in TUPE. In any event, the danger of staff reductions is diminished, bearing in mind that at the end of last year the NHS had 93,000 vacancies and an additional 110,000 staff off sick, half with Covid.

Amendment 201A seeks to prevent cuts to the wages, terms and conditions of NHS staff who are outsourced, and prevent contractors’ staff on worse terms undercutting in-house staff. It does so by requiring that the pricing rules for paying contractors must preserve, then and for the future, NHS staff rates and terms as negotiated between the NHS unions and NHS employers. Payment of those prices will depend on honouring those terms.

I hope the Minister will accept the legitimacy of the need to protect NHS staff in this way, perhaps—my noble friend adds—by better drafted amendments than mine. I am sure the Minister recognises that NHS staff need protection from wage cuts consequent on outsourcing. We must not have a two-tier workforce.

NHS staff are grossly underpaid and the real value of their wages is falling. After years of pay freeze, last year’s miserable 3% wage increase is destroyed by 6% inflation this year. The inadequacy of their terms and conditions is the prime reason for the extraordinarily high level of vacancies—a vacancy rate that increases as more and more work is done by fewer hands. Only heroic dedication by NHS staff prevents the vacancy level becoming a catastrophe.

Amendment 201A also protects against a different kind of two-tier workforce: contractors using the NHS payment scheme to fund salaries above NHS rates to attract certain categories of staff away from NHS posts. The current starting salary for an NHS nurse is £25,655, whereas the equivalent in the private sector is £37,500. No one could begrudge nurses earning whatever they can for their vital work, but NHS funds should not be used to finance a higher rate outside the NHS than within it.

Amendments 201B and 201C are intended to ensure that unions are among the consultees on the likely impact of payment schemes. Obviously, the workforce should be consulted.

My noble friend Lady Blower added her name to all three amendments, and she draws our attention to the fact that my noble friend Lord Hendy is one of our foremost labour lawyers. Some in your Lordships’ House have long experience of trade unions and trade unionism. I therefore hope that they will recognise this quotation:

“Trade unions have been an essential force for social change, without which a semblance of a decent and humane society is impossible under capitalism.”

That was not Marx, Engels or any of the great leaders of the TUC, or a general secretary of a major trade union. The quotation is actually from Pope Francis. Given that we all want to live in a decent and humane society, we should all promote the important role of trade unions. This is in part what these amendments would do; they are about fairness and justice for workers.

We are no fans of privatisation: our vision of the NHS is a publicly funded and publicly delivered service, free to all at the point of delivery. However, the purpose of these amendments is to ensure decent and proper treatment of workers who find themselves in privatised or outsourced services. The amendments address the issue of funding, which must be available at an appropriate level to guard against downward pressure on the pay and conditions, including pensions, of all workers employed in the public sector. It is clearly important that trade unions have the role and responsibility to be at the table in negotiations—and have in the Bill the role and responsibility to be party to consultation that could impact relevant workers.

It would be nice, but folly, to believe that any company taking on NHS services, mostly in the private sector, will be motivated by altruism and a commitment to the original ideas of the NHS. Given that the motivation is far more likely to be the pursuit of profit, the amendments are clearly necessary. As both society and medical science change over time, the focus, functions and structure of the NHS may change too. From these Benches, there is a determination that any change should be helpful and supportive. It should not come at the expense of the workforce through exploitation by way of detriment to its terms and conditions.

Those are the first two speeches, and now I come to mine. The Committee may be relieved to know that I will simply say that I fully support the remarks of my noble friends and trust that the Minister will be able to give a helpful reply.

Lord Stevens of Birmingham (Crossbench)

I shall briefly make two points. First, having looked at this quite carefully, it is good to see that there is nothing in the proposals for the payment scheme that would intrinsically give rise to the concerns just articulated. Secondly, in response to the noble Lord, Lord Lansley, there are very good answers that can be provided, even if not now, to the questions that he poses. One starting point would be to look at the judgment that the Court of Appeal handed down at the end of 2018, which essentially confirmed that what he said is correct. It is just about possible to torture the 2012 tariff system to make it fit for purpose, but an incredibly elaborate set of workarounds is required to do so, with an enormous amount of bureaucracy and that covers only about 60% of the fund flows in the National Health Service. Hence the desire for something more flexible, which this set of clauses enables the NHS to take forward.

Baroness Thornton (Labour)

My Lords, it is very gratifying that so many noble Lords have decided to come in to take part in a debate about NHS finances tonight; I am very grateful for that.

I shall speak briefly to Amendments 199, 200 and 202A in my name. Amendment 199 provides that the Secretary of State must set out rules for determining the price to be paid for NHS services. Amendment 200 ensures that the key policy documents covering NHS services are approved by the Secretary of State. Amendment 202A provides that the rules must be subject to parliamentary scrutiny.

I am very pleased that the complexity of NHS funding was not mentioned in great detail tonight, but there has been speculation about how funding may work and how the various financial responsibilities in and across ICSs may develop. What we think we know is that complex funding approaches, such as payment by results, will become less important. In Clause 70 and the associated Schedule 10, however, the Bill is wonderfully uninformative. It just says, “Out with the old”—the national tariff—“and in with the new”, the NHS payment scheme. I am again with the noble Lord, Lord Lansley, in saying that these questions need to be answered, because they will affect the regulations, procurement rules and so on.

The payment scheme—actually, I am not going to talk about the history of the NHS payment scheme at this time of night, but, unless the Minister can justify it and answer the questions posed by the noble Lord, Lord Lansley, this part of the Bill should be quietly dropped. We seem to have something that works, so why replace it with something that we do not know very much about?

Lord Kamall (Conservative)

I thank the noble Baroness and echo her gratitude to all the noble Lords who have turned up for this group of amendments.

Before I turn to specific amendments, it may be helpful to make a few general points about the new payment scheme and explain why this clause should stand part of the Bill. For many years, the national tariff improved access to services and drove up quality across the NHS. The new scheme will build on that success. NHS England will continue to make rules determining the price paid to a provider, by a commissioner, for healthcare services for the NHS, or for public health services commissioned on behalf of the Secretary of State. Also, expanding the powers to enable NHS England to set prices for public health services, such as maternity screening, will allow for seamless funding streams for different care episodes.

However, we need to update the NHS pricing systems to reflect the move towards a more integrated system focused on prevention, joint working and more care delivered in the community. This will support a move from a “payment by activity” approach, towards an approach that promotes integration and early intervention, while discouraging perverse incentives for patients to be treated in acute settings. It will allow flexibility over the current pricing scheme, and allow rules to set prices, formulas and factors that must be considered when determining the prices paid. I assure noble Lords that, when developing the scheme, NHS England will continue to consult any persons that it considers relevant, which will include ICBs, NHS trusts and foundation trusts, as well as trade unions and representative groups. I share the sentiments of the noble Lord, Lord Davies, about the valuable role that trade unions play in a free society.

I turn briefly to the points made by my noble friend Lord Lansley. On regional variation, the NHS payment scheme will encourage commissioners and providers within an integrated board area to work together to agree prices that are in line with the rules set out in the scheme. To date, only one provider has applied successfully for local modification, and closer working within ICBs should remove the need for disputes. On paying different providers differently, there may be scenarios where it is appropriate to pay non-NHS providers different prices from those paid to NHS providers, to take into account differences, different starting costs or a different range of services provided. There may also be cases where the financial regimes of different providers make it appropriate to set different prices or pricing rules. When setting any prices, NHS England will aim to ensure that prices paid represent a fair level of pay for the providers of those services, as well as fair pay between providers of similar services. We will not introduce competition on price rather than quality. We hope that these changes will increase the flexibility and reduce transactional bureaucracy at the ICP level.

I must disagree with the proposal in Amendment 199. While the Secretary of State will remain responsible for setting out overall funding for NHS England, NHS England, alongside Monitor, has set the rules successfully since 2013. I cannot see the benefit of this duty being transferred to the Secretary of State, beyond separating it further from those making operational decisions in the system. Following that logic, we must also reject Amendment 202A. However, I assure noble Lords that the payment scheme will be published in the usual way, and your Lordships will of course be able to table Questions, secure debates, hold us accountable and ensure that the mechanism is scrutinised.

I turn to Amendments 201B and 201C. As part of the broad consultation duties, we expect NHS England to work closely with trade unions and staff representative bodies, such as the Social Partnership Forum, NHS Providers, the Healthcare Financial Management Association and all the royal colleges, when developing the national tariff.

On Amendment 200, I assure your Lordships that the NHS payment scheme will be published by NHS England following consultation. The Secretary of State will also have the general power to require NHS England to share the NHS payment scheme before publication, not to publish a payment scheme without approval, and to share the contents of the scheme should that be necessary.

On Amendment 201A, in setting the rules for the payment scheme, NHS England will of course want commissioners to consider staff pay, pensions and terms and conditions. NHS England will continue to take account of cost growth arising from uplifts to Agenda for Change. New Section 114C makes it clear that, before publishing the payment scheme, NHS England must consult any person that it thinks appropriate. Again, in practice we expect this to include representative bodies and trade unions. NHS England must also provide an impact assessment of the proposed scheme.

I hope I can reassure noble Lords that the department and NHS England remain committed to Agenda for Change. Independent providers will remain free to develop and adopt the terms and conditions of employment, including pay, that best help them attract and keep the staff they need. However, we expect that good employers would set wage rates that reflected the skills of their staff.

On Amendment 202, it is right that the commissioners and providers of NHS services should be able to make representations and, if they feel it necessary, object to pricing mechanisms set by NHS England in the payment scheme. That is why we have retained the duties to consult commissioners and providers. We have also retained the ability for ICBs and providers to make representations and to formally object in response to consultations on the NHS payment scheme, as they can with the national tariff.

The current prescribed thresholds are set by the National Health Service (Licensing and Pricing) (Amendment) Regulations 2015, and the current objection thresholds since 2015 have been set at 66%. My department consulted on these thresholds in 2015 and it remains the Government’s view that they are proportionate, preventing the delay of future payment scheme publications and giving the NHS the certainty that it needs to plan for future financial years.

If I have not answered all the questions from my noble friend Lord Lansley and others, I ask noble Lords to remind me and I will write to them. This has been a very important discussion—as we can see by the attendance—and I hope I have given enough reassurance to noble Lords for them not to move their amendments and have explained why the clause should stand part of the Bill.

Lord Lansley (Conservative)

My Lords, I am most grateful for the Minister’s response to that short debate and for the other contributions. I shall certainly look at the Court of Appeal judgment—was it the Court of Appeal? —and try to work through precisely where the problems are. There are two ways of dealings with this issue. One is to scrap the national tariff and put in a new payment scheme. The other is to start with the national tariff and ask what the problems are and how we are going to deal with them, and I would quite like to work that through.

We may come back to this because there is an issue about how far the payment scheme is a national payment scheme and how far it becomes a local and varied one. That is a very interesting question, as is the way in which discrimination between providers may be implemented and for what purposes.

For the moment, though, I am very grateful to my noble friend for his response and for his promise to follow up on issues.

Clause 68 agreed.

Schedule 10: The NHS payment scheme

Amendments 199 to 202A not moved.

Schedule 10 agreed.

Clause 69: Regulations as to patient choice

Amendment 203

Baroness Meacher (Crossbench)

My Lords, in moving Amendment 203, I declare my interest as chair of Dignity in Dying, the sister organisation of Compassion in Dying. This amendment is supported by Marie Curie, Together for Short Lives, Hospice UK, Sue Ryder and the Alzheimer’s Society, as well as Compassion in Dying, a national charity which enables people to prepare for the end of life. I thank them all for their support and their briefing. I apologise—I have cut my speech to the bone in light of the late hour.

This probing amendment aims to ensure that dying people are at the centre of decision-making about their care. It is not an attempt to change the law on assisted dying, although the principle of patient choice must be, in my view, central to palliative care as a whole, as well as to the right to choose a dignified death. It is impossible for health and care services to ensure this without having proper, honest conversations. People should be spoken to and listened to in order to find out their wishes, preferences and needs.

This amendment would go some way to ensuring that those conversations take place, that the outcome of those conversations are recorded—I know it sounds so simple, but it just does not happen—and, crucially, that services are designed around their decisions. These conversations are the first step in a process of advanced care planning, where the dying person’s wishes, needs and preferences are recorded in a written care plan. This could include an advanced decision to refuse treatment—a living will; nominating a trusted person to make decisions through a lasting power of attorney for health and welfare; writing an advanced statement of wishes; or completing a clinician-led care plan through a process such as ReSPECT.

Advanced care planning has been shown to have a significant positive impact for dying people and those close to them, because this process helps healthcare professionals to deliver more tailored care, care which the patient actually wants. When a similar amendment was debated in the Bill’s passage through the House of Commons, the Minister responded by expressing support for the principles of advanced care planning and recognition of the importance of patient choice at the end of life.

The absence of statutory underpinning until now probably explains why advanced care planning has never been widely recognised as fundamentally important—hence the relevance of this amendment. It requires that there are systems in place properly to record and share patients’ preferences, as I have said. Mechanisms must be put in place so that individuals’ wishes and decisions are easily accessible—that is no simple task, apparently—and can be respected by healthcare professionals. Real attention must be paid to the recorded wishes of patients on an individual and—even more importantly, funnily enough—a system level. This should include considering how services and funding need to be allocated so that investment is informed by real patient need. For example, if more people planning ahead results in fewer unwanted or inappropriate hospital admissions, this would in turn require greater investment in community-level care to support people approaching the end of life.

I hope the Minister will agree to meet before Report. I do not think this should be carried through to Report and votes and such like. But I hope that we can find a way forward to deal with what is essential for dying people. I look forward to the Minister’s response. I beg to move.

Lord McNicol of West Kilbride (Labour)

I now call the noble Baroness, Lady Brinton, to speak remotely.

Baroness Brinton (Liberal Democrat)

My Lords, there are two amendments in this group, both dealing with end-of-life arrangements, and I support both of them. Amendment 203 in the name of the noble Baroness, Lady Meacher, would put on the face of the Bill an extremely important provision—that of giving anyone with an end-of-life diagnosis the right to a conversation about their needs, how and where they want to die, and how they can be given the support they need to achieve that. This is long overdue. Our excellent palliative care and end-of-life healthcare clinicians and professionals carry out an invisible yet vital service to people. But unfortunately, it is not universal.

Why, oh why, as a nation, do we hate to talk about dying? I have seen both the best and worst in practice. Indeed, very recently, a friend in hospital who was told that he had a few weeks left wanted to go home to die. No one at the hospital used the phrases “end-of-life care” or “palliative care” or even talked about hospices. They thought he was not close enough to death to get to that stage. Instead, there were discussions about setting up the right domiciliary care, or possibly a care home through the council. This amendment would ensure that when the diagnosis of end of life is made, that conversation will happen for all patients. That is very welcome. It is too late for my friend, who died while he was still in hospital.

Amendment 297 in the name of the noble Lord, Lord Forsyth, sets out the requirement for the Secretary of State to lay a Bill before Parliament to permit terminally ill and mentally competent patients to end their own lives with medical assistance. I offer my deepest sympathies to the noble Lord, Lord Forsyth, on the death of his father. I look forward to hearing his speech on this amendment, and I apologise that, due to the remote contribution rules, I have to comment on it before he speaks.

Both the Private Member’s Bill brought by the noble Baroness, Lady Meacher, and before it the Private Member’s Bill brought by the noble and learned Lord, Lord Falconer of Thoroton, had exceptionally sensitive and thoughtful debates in your Lordships’ House, but neither has progressed any further. We know that public views have changed—like those of the noble Lord, Lord Forsyth—in light of sad family experiences of death where pain and trauma were not controlled and where, for too many people, access to palliative care and end-of-life care was just a lottery.

I have spoken in the debates on both those Private Members’ Bills in favour of assisted dying and remain firmly committed to campaigning for it, but that is not what tonight’s debate is about. If accepted, Amendment 297 would not immediately change the law on assisted dying. It would merely require Ministers to bring forward draft legislation, not even to campaign in its favour.

Government is well placed to draft the legislation, encourage a wider public debate through consultation and bring together voices and views from right across our society in a way that perhaps the polarised debate between individual MPs and Peers on such a complex issue always makes difficult. Government can and should maintain their neutrality on assisted dying, but they can guarantee sufficient time for the consideration of the legislation.

It is worth noting that in those jurisdictions where assisted dying has been made legal, there have not been the disastrous consequences predicted by opponents. Instead, those laws continue to receive huge popular support many years after legalisation. In no jurisdiction has any law been passed on assisted dying and subsequently repealed, demonstrating perhaps that the fears of opponents to assisted dying have not come to pass.

The Crown Prosecution Service has recently opened a consultation on the introduction of a prosecution policy for homicides that can be categorised as mercy killings or suicide pacts. The prosecution guidelines, if approved, would add clarity to the law in the same way as the prosecution policy on assisted suicide adopted over a decade ago. While this is helpful, it does not change the law, and it cannot protect dying people with a legal choice of how to end their life, nor can it protect their families, as decisions would be made by the CPS only after the death of the person. I have seen a family friend have to go through the trauma of a police investigation after her husband took his own life. He deliberately chose a day when she was 100 miles away to protect her. It still took months for the police to make their decision and, frankly, it was cruel.

What we need above all is a commitment to a public consultation and parliamentary time for a wider debate on assisted dying. Amendment 297 provides that. It does not change the law on assisted dying. Tonight is not the right time for that, but I think the country is ready for that debate. Both these amendments are vital in their own way, and I hope that the Minister will be able to respond favourably.

Lord McNicol of West Kilbride (Labour)

My Lords, the noble Baroness, Lady Campbell of Surbiton, is also taking part remotely. I invite her to speak.

Baroness Campbell of Surbiton (Crossbench)

My Lords, I wish to oppose the two amendments in this group. Amendment 203 extends the scope of regulations on patient choice under the National Health Service Act to require particular services to be provided at the end of life. It is, I am afraid, clear from the speech made by the noble Baroness, Lady Meacher, on Amendments 47 and 52 in Committee that this is to include the right to assisted dying. It is directly linked to Amendment 297 in the name of the noble Lord, Lord Forsyth.

I am afraid I do believe that these two amendments are an attempt to hijack the Bill to promote a change in the law on assisted dying. I do not feel tonight is the time to discuss the merits or otherwise of assisted dying. By no stretch of the imagination is assisted dying within the scope of this Bill. There is a separate Private Member’s Bill already before this House, awaiting detailed scrutiny. That is the right vehicle to debate this issue and that is where it should be debated—not here, not tonight and certainly not at this late hour.

Moreover, Amendment 297 seeks to force the Government’s hand into requiring it to prepare a draft Bill on a subject that has not yet been agreed by Parliament. To date, the Government have, studiously and quite properly, taken a neutral stance. This amendment could be seen as a deliberate manipulation of the parliamentary process to provoke a viewpoint that is known to be contentious, and to force the pace of further scrutiny before Parliament, and before parliamentary time has been made for it.

Given the existing pressures on the Bill before us, these tactics are, I believe, truly not worthy of your Lordships’ House, so I hope that the Minister agrees with me that the amendments should be rejected and withdrawn. This is not the place to have this debate.

Lord Forsyth of Drumlean (Conservative)

We have just listened to very powerful speeches by the noble Baronesses, Lady Campbell and Lady Brinton.

I would like to begin with an apology to all Members whose email inboxes have exploded over the last 48 hours. If it is any consolation, so did mine. I got the same emails, all of which were identical and came from the same email address, info@righttolife.org.uk. They began:

“Dear Lord Forsyth, I am making contact on an urgent matter. As you probably know, Lord Forsyth has tabled an assisted dying amendment to the Health and Care Bill, and this amendment will be debated next week. I am asking that you please oppose this dangerous amendment”.

The first point I would like to make is that it is very late at night, so I am going to keep my remarks brief. Contrary to what the noble Baroness, Lady Campbell, said, this has got nothing to do with the amendment of the noble Baroness, Lady Meacher. The reason that they are grouped together is because I asked for them to be grouped together; otherwise, it would have come up on a Friday when I could not be here. There is no common link in the terms of these being about assisted dying, and the noble Baroness, Lady Meacher, has explained why her amendment is not about that.

My amendment is not actually about the merits of assisted dying. It is true that I have changed my mind on this matter as a result of not just my own experience with my father but also because all the time that I opposed it I have felt a bit of a hypocrite, because if ever I was, for example, to contract motor neurone disease, I would want the right to assisted dying. I felt it was rather hypocritical to vote against something that I would want for myself. But I persuaded myself that I was doing so because there were certain protections that were needed. That is all I am going to say about that—and I was not going to say anything at all—because the noble Baroness, Lady Brinton, raised it. It is an unusual position to be proposing an amendment when it has already been opposed, before you have even spoken to it.

My amendment is not, absolutely not, about the merits of the case for legalising assisted dying. What it is about is trying to ensure that this Parliament is given the same opportunities as the Scottish Parliament to consider these matters carefully. I have to say to the noble Baroness, Lady Campbell, that it really is disingenuous to suggest that the Bill of the noble Baroness, Lady Meacher, before this Parliament will be given proper consideration. Her Bill will receive exactly the same fate as every other Private Member’s Bill. I am told that something like 200 amendments have been tabled to the Bill of the noble Baroness, Lady Meacher, so it is not going to succeed. The same thing happened with the Bill of the noble and learned Lord, Lord Falconer. The Private Member’s Bill procedure results in our inability to properly discuss the merits, the demerits and the protections that are needed, and over and over again this happens.

Many of the same people who, no doubt honestly and with real conviction, sent me all these emails, who did not actually have the courtesy to read my amendment, or even read whom they were sending their email to, will be encouraging Peers to table what are wrecking amendments to the Private Member’s Bill which prevent Parliament from having a view. It suggests to me that there are people in this debate who are determined to prevent Parliament being able to make a decision, and that cannot be right. So I have tabled this amendment.

In Scotland, the Liberal MSP Liam McArthur has taken advantage of the procedure which the Scottish Parliament has which allows for non-Government Bills to be given time and to be given assistance so that a consultation can be carried out with the public, so all matters can be considered. The Bill can then be brought before the Scottish Parliament and go through its whole process with proper protections from people making wrecking amendments to prevent the Bill being considered and voted on by those who are democratically elected—I am thinking here of the other place.

That procedure in Scotland has resulted in a very fine consultation document, the consultation period for which finished just before Christmas. There will be a Bill. I am told there is a majority in the Scottish Parliament in support of that Bill—although quite how people have reached that conclusion, given that the Bill has not been published, I do not know. Certainly, there have been several attempts in the Scottish Parliament to do this. My friend, the great SNP campaigner Margo MacDonald, herself suffering from a terminal illness, tried to get a Bill through the Scottish Parliament and did not succeed.

I think we need to have a little care here, because I am not particularly keen on opinion polls—particularly this week—and I realise that opinion polls are a crude method of working out what people think, but consistently opinion polls have shown that something like three out of four people and more in our country would like to see legislation in this area. I think it is quite wrong for people to try to deny Parliament the opportunity to carry that out.

Just to finish on the Scottish thing, as a unionist I am very nervous about a situation where a Bill was successful in the Scottish Parliament and there was some kind of procedure for a right to die for people with a terminal illness but the position in England was that we had not even been able to get Parliament to discuss the issue and consider a Bill properly. I do not think that would be a very good advertisement for this Parliament and for the democratic process in England.

I see my noble friend Lady Fraser of Craigmaddie, who wrote a very flattering article in the Times about me that was completely over the top, and then said that I was abusing parliamentary process by tabling my amendment. I have spoken to the clerks and have taken advice on this. I have a precedent for an Act requiring Her Majesty’s Government to publish a draft Bill. I must say it is not one I am particularly comfortable with, but the European Union (Withdrawal) Act 2018 contained precisely such a provision. It might perhaps be unusual but there is certainly nothing unprecedented about having a requirement on the Government to publish a draft Bill.

Those people who have been going round saying that this is an absolute abuse and completely unconstitutional need to read the amendment: it is for the Government to publish a draft Bill. I cannot for the life of me imagine why anyone would be opposed to the Government providing help and support through a draft Bill. It could be considered as a Private Member’s Bill, or by a Joint Committee of both Houses, or be subject to a whole range of processes that would enable people to express their views. It does not commit the Government to supporting the legislation but would allow Members of the House of Commons and of this House to express their views.

I promised the Chief Whip that I would not talk for very long. I hope that I can persuade my noble friend the Minister, and that the Government will indicate that they are prepared to help the provision of a draft Bill. Perhaps they will also recognise that no Private Members’ Bills reach the statute book without some support from government. It is not a neutral position that the Government maintain on this matter of conscience; it is not neutral to persist in a position which means that any Bill which is introduced is going to fail and which prevents Parliament from reaching a view. A neutral position is one that says we will allow Parliament to take a view and that we as a Government will not promote or oppose it but will give the opportunity for Parliament to do so.

I say to my noble friend that perhaps he could make a commitment this evening—perhaps he might even accept the amendment, which is a probing amendment. For those people listening to this debate and wondering whether there might be any votes, I am not proposing to divide the House at the Committee stage of this Bill, because I am really hopeful that my noble friend the Minister will come forward with a proposal that meets the expectations that this amendment is designed to achieve, and it will not be necessary for me to come back on Report.

Baroness Bennett of Manor Castle (Green)

My Lords, the Green group is operating on the lark and owl system —appropriately enough, you might say. My noble friend Lady Jones of Moulsecoomb attached her name to Amendment 203 in the name of the noble Baroness, Lady Meacher. I am going to be brief, as I am aware of the pressures. I find it very hard to see why anyone would resist Amendment 203. It is about providing appropriate structures and law to ensure that people’s views are heard and respected.

When I looked at this, I thought of the very old feminist slogan, “the personal is political”. What could be more personal or political than a person having control over the nature of their own death, being able to express their wishes and ensuring that they are heard and recorded.

It is worth saying that I was not able to take part in an earlier debate about the funding for palliative care. We should see much better investment in palliative care in the UK; we should not see volunteers rattling fundraising buckets for hospices to meet their basic needs. But that goes along with the right of individuals to be in control, knowing that they will be heard and listened to, and their wishes acted on. That would allow them to be in a situation of much less fear.

I also want, very briefly, to offer the Green group’s support for Amendment 297. Support for assisted dying is Green Party policy. I want to reflect back to October last year, when the Private Member’s Bill was being debated. There was a very respectful, silent crowd outside, holding up signs saying “Choice, Compassion, Dignity”. I ask people considering this to make sure that those people can be heard in this House and this can be debated.

As the noble Lord, Lord Forsyth, said, it is not about a change in the law; it is about a guarantee of parliamentary consideration, as the courts have requested. It might surprise the noble Lord to know that I preceded him on this. I am trying to remember the details—I was not aware that any fuss had been made about this procedure, but it was either in the Agriculture Bill or the Environment Bill that I put down an amendment in this form. I would not consider myself a procedural innovator, so this is something that has been done many times before.

I want to make one final point. It is perhaps not of legal significance, but, in a way, it is a legal issue. Assisted dying is already available to people in our society—to people who have the funds, the knowledge and the remaining health to get to Dignitas, in Switzerland. This is very much an equalities issue around a right that some people have and some people do not. There is also the fact that, to be guaranteed to be fit to travel, some people are now dying before they need to because we have that inequality.

Baroness Hayter of Kentish Town (Labour)

My Lords, I have added my name to Amendment 297 from the noble Lord, Lord Forsyth. He has made the case, so there is not much more to say. At the core of that amendment, in proposed new subsection (2)(b), all we are asking is

“to enable Parliament to consider the issue.”

That is really all we ask.

We know, as has been said, that the public want change. I believe that the House, at its full strength, wants change. The courts have said that it is not for them, judges, the Crown Prosecution Service, the Law Commission or anyone else to decide. It is the role of Parliament to take a decision of this importance.

By failing to allow a full debate and a decision in Parliament, as the noble Lord, Lord Forsyth, has just said, the Government are effectively siding with those who want no change. That is not a neutral position: it is allowing no change by forbidding those who want to put the issue to Parliament from being able to do that. That is done partly through the number of wrecking amendments that we have seen. I know that the Chief Whip has lots of other demands on his time, but my judgment is that, even if he did not, he would not give time for this—for what would be necessary, given the number of wrecking amendments.

All the Government are doing is accepting, as the noble Baroness, Lady Bennett, has just said, that people with money can go to Switzerland. More importantly, there are no safeguards. Those who oppose assisted dying say that it exposes people to pressure from their families. The whole point of having safeguards is that you will have to go and get permission before it happens, and someone has to test that. At the moment, you can go to Switzerland and there is no check—there is not even a check for whether you are dying. There is no check on whether you are of fit mind; there is no check on whether you are under pressure from a family member. You can just go, if you have the money, but there are no checks. The Government are allowing that to continue: our citizens are able, if they have the money, without any safeguards, to go quite legally to that country and end their lives when they are facing the end of life anyway. That really is not how this country ought to be.

What is important is that we allow Parliament to decide. I can only think that those who have turned up wanting to oppose this are actually afraid that Parliament will decide that it wants change. I often do not like things that Parliament does—unsurprisingly, sitting where I do, on this side of the House—but we are a democratic country and we should let Parliament take the decision on this.

Lord Warner (Crossbench)

My Lords, I support the amendment in the name of the noble Lord, Lord Forsyth. This is an unusual position for me; I do not remember in 22 years ever having supported an amendment tabled by the noble Lord. I am beginning my third decade in this House supporting change in the law. Who knows? I may have reached my fourth decade before we have got there.

During this time, I have watched many parts of the English-speaking world use their Parliaments to debate these issues and change their laws. This has now happened in Canada, New Zealand, five Australian states and 10 states in America and the District of Columbia. These changes have not been rushed through; they have been measured, considered and debated, and the populations have been consulted in the way described by the noble Lord, Lord Forsyth. It cannot be said to be right, if we live in a democracy, if the only way forward on an issue that is of great personal concern to many people is having to rely on Private Members’ Bills, which can be treated to wrecking amendments which make it almost impossible to progress a discussion and debate this issue. In the statesman-like way that the noble Lord, Lord Forsyth, has set this out, we should be impressed by the need to facilitate this debate within Parliament, as other countries have managed to do both in the English-speaking world and across Europe. Even countries such as Spain, with strong religious traditions, have allowed this debate to take place and changed their law as a consequence.

At the end of the day, this issue comes down to being a matter of personal choice. It is right that Parliament should be able to debate that issue of personal choice and facilitate the exercising of it by many people who are terminally ill if they wish to do so. They are not forcing anybody else down that path—it is a personal choice; it is a personal decision. Changing the law does not mandate anybody to do this; it is left to the individual, within the safeguards provided for in the legislation, to exercise that personal choice.

I have also added my name to Amendment 203 in the name of the noble Baroness, Lady Meacher. She makes it clear in that amendment that end-of-life issues are a matter of personal choice. We make many speeches in this House about patient choice, so why is it wrong to have more patient choice at the end of life when we have a lot of patient choice during it? We need to focus much more on patient choice. I support Amendment 203 as well as Amendment 297.

Baroness Young of Old Scone (Labour)

My Lords, I think I am about to score a historic double whammy. I thought that I had stayed tonight to let some momentous words cross my lips that I never thought would do so—that is, I agree with everything that the noble Lord, Lord Forsyth has said—but, and I never thought I would say this, I also agree with every word that the noble Lord, Lord Warner, has said. How is that for a double whammy?

I do not want to delay the Committee, because it is late, but let me touch briefly on Amendment 203 in the name of the noble Baroness, Lady Meacher. I sat on the Commission on Assisted Dying, and we heard endlessly and quite heartrendingly from medical professionals, patients and relatives of those who had already passed away about the inadequacies of the discussion about choices at the end of life. At the moment, the legislation makes it almost impossible for healthcare professionals to open up that sort of conversation—we are not talking necessarily about assisted dying; we are talking about any sort of choices at the end of life. The amendment in the name of the noble Baroness is therefore much needed.

However, for heaven’s sake, on Amendment 297, the whole process of Private Members’ Bills is doomed to failure for something as important as this, which has been tackled by legislatures across the world. Yet we are frozen in this grand old Duke of York scenario, where we march up to the top of the hill at Second Reading on a Private Member’s Bill, then absolutely sod all happens after that and we all march back down again. We cannot continue to do that on a five-yearly basis for ever. This is not asking the Government to nail their colours to any particular side of the debate but simply to open up parliamentary time. I very much commend the noble Lord, Lord Forsyth—good grief— on his foresight in seeing this opportunity.

Lord Mackay of Clashfern (Conservative)

My Lords, your Lordships will know that I have known my noble friend Lord Forsyth as a noble friend and as a friend for many years. I know also that he is extremely good at putting forward a case—whether the case is well founded or not does not seem to matter too much.

We have a procedure in this House, which was established a long time ago, which says that government time is to be used for Bills presented by members of the Government. That is the rule generally. However, there is also a procedure for dealing with Private Members’ Bills. It has been used many times, and it has been used in connection with assisted dying during the present Session. We had a full day of discussion of the merits of that matter—exactly the merits of this matter; the arguments for and against are not for tonight. We are not here to argue for that amount of time; it took a whole day with quite brief statements being made to express different views about this matter.

The Government are a member of those procedures; they are a party to the procedures that deal with Private Members’ Bills. The Government are there so that they can be asked in the course of the proceedings to help. From time to time, they decide that what is in issue is so important generally that it should be given government time. That is the procedure that has been laid down, and as far as I know in this case so far, the Government have not been asked to give time. They said at the end of the debate just two or three weeks ago that they were neutral and waiting for a decision from Parliament. It is Parliament that takes a decision; a Private Member’s Bill is a proceeding in Parliament. It is not just Parliament dealing with government Bills—Parliament deals with Private Members’ Bills also, as well as other kinds of Bills, such as hybrid Bills.

However, this Bill was in Parliament in the Private Member’s Bill system, which is the system that exists just now. If my noble friend, with his skill, wants to suggest a different sort of procedure for Members’ Bills, he can go about it, but to try to break out of the present system a new system for this sort of Private Member’s Bill will produce a complete wreck of the present procedure when no new procedure is being introduced. The Government have from time to time given time for a Bill to be taken forward, which has reached the statute book. That is the procedure which is available now, and it is the proper procedure to ask for.

This procedure is about trying to put an amendment into a health Bill, which has no mention of this, to amend the law on assisted suicide. That is the essence of this—the heading in the amendment is “Assisted dying”—which would mean an unnecessary amendment to the law relating to assisted suicide in his country. There is no question about that. There is nothing about that in the Long Title of the Bill. This Bill is not the proper machinery for raising this matter. It is not my responsibility or an option to deal with the merits of the case. I made a speech in the debate two or three weeks ago towards the end. I think my noble friend was not able to be present, if I remember rightly.

Lord Forsyth of Drumlean (Conservative)

I was able to be there, but as we got only three minutes to debate it, I did not think it was possible to deal with the very complex issues in that time. My noble and learned friend is making the case against the amendment that it requires the Government to produce a Bill. It does not. It requires them to produce a draft Bill. If my amendment had said that the Government should bring forward their own Bill, then my noble and learned friend would be quite right, but I would not have been able to table such an amendment because it would have been out of order for the reasons he has given.

Lord Mackay of Clashfern (Conservative)

Exactly. A draft Bill is preliminary to a Bill; it is not there for the purpose of not being considered. A draft Bill is for making a proposal the subject of an ordinary parliamentary Bill, which has the same authority as a government Bill. All Bills are produced in draft; some are considered in draft in pre-legislative scrutiny. A Bill has to be in draft at some stage, but the object of producing this Bill is not that it should remain in draft but that it should be considered. The amendment does not say how long it should be allowed, but that is another matter. The point is that there is already a procedure by which government help can be obtained if it is asked for in the proper situation of Private Members’ Bills.

I think it is wrong in principle to consider the merits of this matter tonight. Some remarks have been made about that, and I refrain from making any remarks about it because I do not think that that is what is needed here. I submit that it is a view well founded on the rules that Private Members’ Bills are drafted by the private Member, are submitted and then are subject to procedure in the Private Members’ Bills system, including if the Government think it is right that they give additional time.

It is also questionable whether this Motion is in order, since the matter has already been discussed in this Session. There is a question about whether having have a separate procedure raising the issue in much the same form as it was considered some weeks ago is in proper order.

But my main point is about the procedure for dealing with Private Members’ Bills in our Parliament—we are not in the Scottish Parliament at the moment, and there may be some question as to whether my noble friend would like to be—and we have to apply the rules in this Parliament. In my submission, applying the rules of this Parliament, if we want help from the Government, it is to be asked for in the Private Members’ Bill procedures and the Government may, for all I know, be prepared to do something along the lines that my noble friend has suggested.

Lord Moylan (Conservative)

My Lords, I wish primarily to speak to the amendment standing in the name of the noble Baroness, Lady Meacher, but, before I do so, may I just reply, without any hint of rancour, to the comments made by the noble Baroness, Lady Hayter? She repeatedly described the amendments tabled to the Assisted Dying Bill as “wrecking amendments”. Certainly, my amendments are not intended to be wrecking amendments; the Bill raises very important consequences for the National Health Service, and my amendments are primarily about the effect on the relationship between doctors and patients. These are important considerations, and to call them wrecking amendments is a little unfair. I say that without any rancour at all.

I was very impressed—before I get to Amendment 203, I shall comment on Amendment 297—by the remarks just made by my noble and learned friend Lord Mackay. My noble friend Lord Forsyth referred to a precedent, but my understanding is that that precedent was a case where the Government themselves brought forward legislation mandating themselves to bring forward a Bill. At least nobody was imposing on the Government something that they did not want to do. The idea that we can impose on the Government something that they do not want to do, for which they have no electoral mandate and which is not on their policy platform, seems an abuse.

It is an abuse with which one could have great fun in future. I am already thinking of an amendment to some piece of legislation that might come up that would mandate the noble Lord, Lord Forsyth of Drumlean, to bring forward a Bill requiring the nationalisation of all land and means of production. I think he might find it uncongenial to have to bring forward such a Bill, but once it was in statute he would have no choice. We are in a similar position here. As my noble and learned friend has pointed out, producing a draft Bill is not for the purpose of decorating the room with wallpaper; it is preliminary to moving legislation, and I think that the Government should be allowed to choose which legislation to bring forward—and they are accountable to the electorate for that which they do.

I turn briefly to Amendment 203. I have some sympathy in principle with what the noble Baroness is trying to achieve here. I shall be fairly brief. I can well imagine that there are occasions when people who are still conscious, still capable of understanding their own affairs, and aware that they are approaching their end of life, might wish to have conversations that are not easy to have, and where there are not always channels available for them to have one. I take the simple example: someone might want to say, “Have you actually thought about your will? Have you updated it? Are you content with your testamentary disposition?” I can see why that might be a difficult conversation for a member of the family to bring up, and there might be few other opportunities. So I see the good intentions behind the amendment.

What I have difficulty with, and this is a genuine difficulty, is whether it would work if it were part of statute. It is meant to be part of a set of regulations. I am currently engaged in the annoying business of trying to move my savings around. Because of regulation, I have to fill in a form asking a whole set of inane questions, most of which are not pertinent to me, because that is what the regulations require and what the lawyers have said to the fund provider that the regulations require, and so forth. What terrifies me about the prospect of proceeding with this really quite essential idea within a statutory context is that it quickly degenerates into a tick-box exercise that has to be completed—you can imagine the rush to complete it before patient A dies. The questions will often not be appropriate. It might be carried out with great sensitivity but it might be carried out with insensitivity. It might be welcomed or it might be resented.

In my view, this sort of conversation ought to be available to people in the circumstances that we have discussed. I say only that this is the wrong route, and it would be better if its provision were pursued through the charitable and pastoral sector rather than through being embedded in what will inevitably be an insensitive statute.

Baroness Wheatcroft (Crossbench)

I support both these amendments. I have listened to the noble Lord, Lord Moylan. In answer to his points on Amendment 203, it is highly relevant that organisations such as Marie Curie want this legislation in the Bill. Marie Curie’s nurses work tirelessly to make the end of life as gentle and congenial as possible for so many patients, but if they believe that this would help them, I would certainly support the amendment.

I agree with the noble Baroness, Lady Brinton, that in this country people are too frightened to talk about dying, and that is what we are talking about tonight—and for some it will be painful. Nevertheless, dying is a subject that nurses and those in hospitals should be empowered to feel comfortable discussing with their patients, and Amendment 203 should help with that.

It is with some trepidation that I venture to support Amendment 297, having heard the noble and learned Lord—

Baroness Wheatcroft (Crossbench)

Yes, Lord Mackay. Your Lordships can see how nervous it makes me feel! I think that, in this particular situation, private Members’ Bills have failed, and the Government show absolutely no intention of moving on something that is so crucial to so many people. Although you have to be wary of opinion polls, it seems perfectly clear that opinion in this country has moved and that a majority of people would like not to have assisted dying made mandatory but to have the choice at the end of life of how they say farewell.

Like others, my inbox has been inundated, and I have tried to reply to one or two of those who have been opposed to the proposal from the noble Lord, Lord Forsyth. One doctor, Dr Whitehouse, a palliative care doctor, wrote to tell me that nobody had come to him whom he could not help, and it was very important that everybody should treasure their short remaining time, and palliative care would do that and assisted dying should be resisted. I wrote back to him a week ago through email—he gave me his email address—and said that I wanted to know more. I am a firm believer in palliative care; it works wonders, and it has improved hugely over the years, but I do not believe that it works in every case. I asked him whether it worked, for instance, with motor neurone disease, or whether it could cope with the incontinence which makes the end of life such a discomfort and an indignity for so many people—or did the help that could be provided mean only understanding and care, which does not necessarily deal with the indignity at all? Noble Lords will not be surprised to learn that I have not heard back from Dr Whitehouse, and neither do I expect to.

This matter polarises people, but the amendment is asking merely that Parliament should have the chance to debate a matter that is crucial to parliamentary Members and, more importantly, the constituents who vote for them. I support both amendments.

Baroness Finlay of Llandaff (Crossbench)

My Lords, I declare all my interests in palliative care and as a director of Living Well Dying Well and vice-president of Marie Curie and of Hospice UK. There are two amendments in this group. I do not intend to lay out all the arguments against the amendment proposed by the noble Lord, Lord Forsyth. Indeed, the noble Lord was right that we had only three-minute speeches when we debated the Bill proposed by the noble Baroness, Lady Meacher. However, I remind the Committee that the Bill put forward in the other place by Rob Marris MP actually failed—it was voted out—and it was one that came high in the ballot, so if it had been voted in it would have progressed quite well.

Personally, I do not think this is the place for us to debate assisted dying, which would need a change in the criminal law. The procedural issues have been clearly explained by the noble and learned Lord, Lord Mackay of Clashfern. The noble Lord, Lord Forsyth, spoke about the right to die. I remind him that everybody is going to die—it is an inalienable right. What he is talking about is licensing some people to provide lethal drugs to others, against a set of criteria. I remind him that three-quarters of people in my branch of the profession—specialist palliative medicine—who look after these patients all the time, not only do not want the law to change but do not want anything to do with it in the event it changes.

The claim has been made that palliative care is not a panacea. Assisted dying is not a universal panacea either. There is a 6.9% complication rate in Oregon, which is experimenting with the fourth drug cocktail in seven years. I remind the Committee, because I have made a plea for specialist palliative care, that it is estimated that 118,000 patients each year in the UK cannot access specialist palliative care. That is why I have an amendment tabled to the Bill, which I hope the Government will look favourably on. Areas where assisted dying has happened rank low on end-of-life care compared to the UK. Areas with assisted dying have dropped in the rankings for palliative care since 2015 compared to areas which did not change the law.

Amendment 203 is well intentioned and builds on all the moves for advanced care planning that are spearheaded by specialist palliative care. I know it was drafted originally with Marie Curie’s help, because it initially discussed with me whether I would table it, but I did not and did not sign it for two reasons. First, it is imperative that such conversations begin early, are part of ongoing care and do not become a tick-box exercise which says, “Conversation offered—tick”. That risks all the dangers of what happened with the Liverpool care pathway. Sadly, I have seen all too often a patient being told, “But that’s what you said you wanted”, when their needs have changed. Much research on advanced care planning has been done by my colleagues in my team in Wales. This has now informed some of the moves that are happening. Having open conversations is something that patients want, and the clinicians trained in communication skills want to provide those openings and do.

The second reason that I was concerned about this is that excellent draft guidance on advanced care planning has been developed by NHS England and NHS Improvement, and is near to being published; I had the privilege of being consulted on the final draft. It sets out core principles that such planning must always be a voluntary process and that every effort must be made to help someone express their views and preferences. The person is central to developing and agreeing their advanced care plan with agreed outcomes that are shared in partnership with relevant professionals. They have a record of the shareable plan and are encouraged to review and revise it so that they can change their mind at any time. In addition, anyone involved can speak up if they feel that the principles are not being followed.

The very sensitive approach set out in the guidance recognises that people have different levels of preparedness for such conversations; that their perception of their illness evolves over time; and that, in the crisis of being given a diagnosis or told of disease recurrence, the views that a person expresses may subsequently change as they reframe their experience. The first step is to start with an exploration of how much the person wants to be involved, what matters to them, and the pace and language that matches the person, as well as that they are listened to and understood.

The amendment asks for a “relevant authority” to

“have regard to the needs and preferences recorded … in making decisions about the procurement of services.”

I hope that the Government can see that, by providing specialist palliative care as a core service, the type of bureaucratic delays that would be involved in procuring services would be completely replaced by a rapidly responsive specialist service that can address the person’s needs in all domains. The amendment also uses the term “relevant person”. If it were used as in the Mental Capacity (Amendment) Act, that person could turn out to be the care home manager, who may actually have competing interests and therefore is inappropriate.

A comprehensive survey of over 2,000 people by Cardiff University’s Marie Curie research department reported that people listed their top priorities towards the end of life as timely access to care at 84%, and being surrounded by loved ones at 62%. Being home was a priority for only 24%.

This is a well-intentioned amendment but it has now been replaced by the extensive consideration of the consultation and production of comprehensive guidance.

Lord Flight (Conservative)

My Lords, I support the amendment of the noble Lord, Lord Forsyth, but was asked at short notice by my noble friend Lord Suri to present his contribution. He makes the point that we humans look after animals and other living creatures with the highest levels of care—

Lord Ashton of Hyde (Conservative)

The normal convention in this House is that if a Member is not present at the beginning and end of a debate, they should not speak. It is not right to read out someone else’s speech.

Bishop of Carlisle (Bishop)

My Lords, I recognise and respect the integrity and passion that underlie Amendment 297. However, I rise to agree wholeheartedly and briefly with those noble Lords and noble and learned Lords who have already expressed their significant reservations about it.

There are two problems in particular with that amendment. The first has to do with the many contentious arguments for and against any legislation permitting assisted dying, some of which have already been mentioned. Tempting though it is to rehearse some more of those, I am conscious not only of the time but of the fact that they have already been presented recently and at length, as we have been reminded by the noble and learned Lord, Lord Mackay, at Second Reading of the Assisted Dying Bill here in your Lordships’ House. The ongoing process of that Bill, however slow it may be, should not be undermined. We have also been assured that this is not primarily what Amendment 297 is all about. I might add that the terminology of that amendment is unhelpfully vague. “Vague” is a word that has already been used more than once in the debate today. For instance, we might ask exactly what is meant by “terminally ill” or “medical assistance”.

The second problem, which has already been persuasively argued, concerns the attempted use of this Health and Care Bill potentially, if not directly, to change the law on assisted dying. The proper place for any amendment of this kind should be Committee on the Assisted Dying Bill, not Committee on this Bill, which would be subverted were this amendment to be accepted.

With regard to Amendment 203 in this group, whether or not it is deliberately linked, it is evidently concerned to address the holistic needs of those approaching the end of their lives, and that includes, of course, talking about death. That is something that we would all wish to encourage. However, there is again an issue of vagueness in the amendment, as in Amendment 297. For example,

“wishes and preferences for the end of their life”

could include almost anything, from repeated albeit futile chemotherapy, through bucket list wishes, to assisted suicide. Who decides, and how, that someone lacks capacity for engaging in a conversation about their holistic needs? Who is a “relevant person”, as we have just been reminded by the noble Baroness, Lady Finlay? Then, in proposed new paragraph (c), what does

“having regard to the needs and preferences recorded in such conversations”

actually entail?

Most of what is proposed in the amendment is already covered in End of Life Care for Adults: Service Delivery, NICE guideline NG142, which was published on 16 October 2019. Perhaps it would be simpler just to require healthcare professionals to meet the requirements of that guideline, which would address the heart of the amendment’s stated, and laudable, objective.

Lord Carlile of Berriew (Crossbench)

My Lords, it is a real pleasure to follow the right reverend Prelate and, given the similarity between his see and my name, I hope I may be able to slipstream some of his authority.

I entirely agree with the noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Moylan, that this is not a debate in which we should be having Second Reading discussions about the principle of assisted dying, and I shall absolutely not do so.

I start by saying a few words about Amendment 203. I was greatly relieved when my noble friend Lady Meacher immediately revealed it to be only a probing amendment, because I had taken the trouble of reading proposed new paragraph (b). This is not the occasion for me to indulge or deploy my inner Rumpole or Henry Cecil by telling your Lordships stories of frauds committed on families by greedy relatives and the like—although there are many to be found in the annals of the criminal courts, even from the time when I practised in north Wales. However, the words “another relevant person” are an absolute recipe for undue influence and ostensible but completely fraudulent carers. I am very surprised that my noble friend, for whom I have enormous respect, thought it right to present such a vague piece of drafting to the House on this occasion.

I am very concerned in relation to both Amendment 203 and Amendment 297 about parliamentary procedure and statutory integrity. I have huge regard for the noble Lord, Lord Forsyth, who is one of our very greatest debaters in this House, and so I listened to him with great care. It has been an unusual occasion to hear him relying on a Liberal Democrat Peer in Scotland and the Scottish Parliament. I am not sure that I have heard him deploy that juxtaposition before—and I am pleased to see that he sees the funny side of that himself. However, I beg him, before Report, to consider whether he has got his concept right or wrong, for I would say that, conceptually, what he proposes is wrong.

I do not want to repeat what was said so clearly by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Moylan—it does not need to be repeated, and I would diminish it if I tried to—but there are a couple of points to add. One was alluded to very graphically by the noble Lord, Lord Moylan. If, as a rule, one could table an amendment simply saying that the Government—or anyone else, for that matter, as the noble Lord suggested—should present a draft Bill to Parliament, it would be impossible to control. Reference was made to the 200 amendments tabled to the absolutely extant Bill of the noble Baroness, Lady Meacher—it is a living Bill and it can still be debated. It is extremely unfair to suggest, as one noble Baroness did, that those were wrecking amendments. Some of them may be, but the great majority of them are substantive amendments seeking to safeguard vulnerable people. That is one of the things that the private Members’ procedure is for. When a private Member presents a Bill to Parliament—and many have passed; it is not a futile gesture—it has to withstand the same parliamentary scrutiny that we give to the Government when they present Bills before Parliament, such as the police Bill, debates on which a number of us here have been taking part in recently.

Furthermore, let us suppose that the clause from the noble Lord, Lord Forsyth, was passed and that within the 12 months that followed the Government decided not to present a draft Bill to Parliament. I do not believe—though I may be disabused of this by greater judicial minds than mine—that the court would have the power, other than possibly to advise, to order the Government to present such a Bill to Parliament, because that would be a breach of the separation of powers. I do not believe that any judge, other than in a nightmare, would see themselves doing that.

Lord Forsyth of Drumlean (Conservative)

My Lords—

Lord Carlile of Berriew (Crossbench)

I will give way at the end of this sentence. It seems to me that what the noble Lord, Lord Forsyth, is proposing is simply not going to be effective, so what on earth is the point of presenting it?

Lord Forsyth of Drumlean (Conservative)

I rise with some trepidation to take on the noble Lord, Lord Carlile, but could he just reference the point that I made that my amendment does not seek for the Government to produce a Bill? It is a draft Bill. There is no compulsion on the Government to give it time or anything else, and therefore no notion that one would go to the courts. What I am trying to do here is break the logjam. It is completely disingenuous to suggest that we have a Bill before us; we all know that that Bill is going absolutely nowhere, like all its predecessors.

Lord Carlile of Berriew (Crossbench)

The noble Lord is trespassing on the old Social Democratic Party by using words like disingenuous. I will give him an example: some years ago, I chaired a Joint Select Committee of both Houses of Parliament dealing with the draft Mental Health Bill. That particular Bill was never enacted after our year of meetings and the report that we produced, but there was not a single person or NGO—including some that have been mentioned today—that did not believe that it was a parliamentary Bill. A Bill is a Bill is a Bill. In this Parliament we have draft Bills but not half Bills. That is my answer to the noble Lord.

I do not want to take up more time. I finish by saying that I think this is a completely misconceived proposal, both procedurally and, were we to come to it, on the merits.

Baroness Smith of Newnham (Liberal Democrat)

My Lords, I shall speak to both amendments but I shall speak first to Amendment 203, which, on the face of it, I am minded to support.

My reason for that—I hope this is not seen as a Second Reading speech—is that two years ago, just before Christmas, my mother contacted me and said she thought she had terminal cancer. She was taken to hospital two weeks before Christmas and died on Boxing Day, not of terminal cancer but of end-of-life COPD. I had no idea that she had end-of-life COPD, although I knew she had COPD. On Christmas morning, I was summoned to the hospital, and a junior doctor asked me what I wanted to do: “Your mother’s been a bit unconscious. What do you want us to do? Do you want us to wake her up? Do you want us to do anything?” That is not really the best conversation to have. The next morning, Boxing Day, I had almost exactly the same telephone call: “Please come to the hospital, your mother is very ill.” I said that I had had the same conversation yesterday. However, on this occasion I was summoned in and met a doctor who spoke to me with compassion. My father and I agreed that my mother should not be resuscitated. I had never had that conversation with her, but, when I went through her things, I discovered that she had completed a form that said: “End-of-life COPD. When in doubt, do not resuscitate.”

So, in many ways the amendment in the name of the noble Baroness, Lady Meacher, is very attractive because it is surely right that, towards the end of their lives, people talk about what is appropriate.

However, I share the considerable concern articulated by the noble Lord, Lord Carlile. Sub-paragraph (b) talks about “another relevant person”. Who is such a person? It might be somebody’s closest relative, or it might be a care home manager or a random friend. It is sloppy drafting. I am glad to know that this is a probing amendment, because I think there are interesting aspects to it, but, as the noble Baroness, Lady Finlay, said, it may be that the new comprehensive guidance on palliative care and end-of-life care is more appropriate.

These are clearly issues that your Lordships’ House and the other place should think about, but we should think about them in exactly the way we always engage on legislation, which is through very detailed scrutiny. This is where Amendment 297 goes quite off track. The noble Lord, Lord Forsyth, has said on at least one occasion now—I think he may have said it three times already this evening—“This is not a Bill that is being proposed; it is only a draft Bill.” Yet it is very difficult, as the noble and learned Lord suggested, to see the difference between a draft Bill and a Bill, in particular when Amendment 297 says:

“the Secretary of State must take account of the need … to enable Parliament to consider the issue.”

Surely, that is putting a duty on the Government, and this is not the right Bill to be discussing assisted dying.

There is still a live Bill—the Private Member’s Bill in the name of the noble Baroness, Lady Meacher. We have already begun some detailed scrutiny through discussions at Second Reading. Perhaps the noble Baroness can tell us when she has requested that Committee should happen, because there are many amendments tabled to that Bill. Tonight is not the time for the substance, but the noble Baroness, Lady Hayter, suggested that many of the amendments are time-wasting, wrecking amendments, and I confess that my amendment is the first one.

Baroness Meacher (Crossbench)

It might help the Committee if I make clear that, as I understand it, all our Fridays are taken up, because people are talking so long on all these Bills that we are having to use Fridays for government business, and also there are lots of Private Members’ Bills with Second Readings to come. So my understanding is that we have done what we can do with my Bill.

Baroness Smith of Newnham (Liberal Democrat)

My Lords, perhaps the Minister, in replying, can tell the Committee whether he will talk to the usual channels, especially since I note that the Chief Whip and the Deputy Leader are both in their places, about whether time could be made available for further discussion of the Bill that is extant. Because whatever the merits or demerits of assisted dying, this is not the Bill for such an amendment.

Lord Ashton of Hyde (Conservative)

My Lords, the noble Baroness, Lady Grey-Thompson, has been trying to get in for a while.

Baroness Grey-Thompson (Crossbench)

My Lords, I want to react very briefly to one comment that has been made in debate tonight, which is the issue flagged by my noble friend Lady Wheatcroft. It is something that is continually raised in the wider debate on assisted dying and it is the issue of incontinence being seen as so inherently tragic that people should use it as a reason to want to end their lives. It is considered an important subject; we have an all-party group on it.

Personally, I find it really difficult because I am incontinent and I have never once felt undignified by it. I cannot believe that I am the only person in the House, or, indeed, in the Chamber tonight, who is incontinent and I will happily discuss the many solutions for sorting out this problem. What I see is that people are scared to talk about it, because they think it is something that we should never discuss. I have many solutions for this. I intermittently catheterise; I use indwelling catheters; I have lots of options available to me if those do not work—medication and lots of options on surgery. There is nothing undignified about being incontinent if we support it properly.

Lord Aberdare (Crossbench)

My Lords, both these amendments reflect a desire to give people a greater say over the final weeks of their lives. As a strong believer in patient choice, which is, after all, a very central part of this Bill, I am greatly attracted by and supportive of my noble friend’s Amendment 203.

As several noble Lords have said, we are not very good at thinking about, planning for and managing death, despite Benjamin Franklin’s observation that it is one of only two certainties in this world, along with taxes. This amendment would give people diagnosed with a terminal illness the possibility of some degree of agency in their final days. That seems to me a wonderful idea, but it does of course raise questions about who such discussions would be with, and what qualifications might be needed by the people offering them. So, while I support the amendment, I would want to know more about the practicalities of delivering it, hopefully without having to create a whole new regulated profession of mortality consultants. I hope therefore that the Minister will respond positively to my noble friend’s suggestion of discussions on how the amendment might work; I will be interested to hear his response.

On Amendment 297, which I also support, I make only two brief points. First, I very much agree with what everybody has said that tonight is not the time to be discussing the merits of assisted dying; that is not what this amendment is about. Many Members on both sides of the argument have made it clear that Parliament needs to decide this issue, and the amendment from the noble Lord, Lord Forsyth, seeks to find a way of making that possible. I feel the same sort of alarm as my noble friend Lady Wheatcroft in finding myself on the opposite side to that of the noble and learned Lord, Lord Mackay, but, with the greatest respect, I think he himself said we were waiting for a decision from Parliament before the Government could act on this. In that case, there has to be some way or process for making such a decision happen. That is exactly what the noble Lord, Lord Forsyth, is trying to produce with this amendment. No doubt there are ways of improving how that is done, maybe by giving more time to my noble friend Lady Meacher’s Bill. This responsibility is Parliament’s to resolve, and I cannot believe that, in this great Parliament, we cannot find a way of doing it.

Baroness Fraser of Craigmaddie (Conservative)

My Lords, I rise partly because my noble friend Lord Forsyth referred to me earlier and partly because I wanted to clarify what is happening in the Scottish Parliament. There is not actually a Bill in front of the Scottish Parliament. The Orkney MSP, Liam McArthur, carried out a consultation which was very wide-ranging and closed only at the very end of December. Liam McArthur has reported that the submissions to his consultation were wide-ranging and unprecedented, and I look forward with great interest to reading some of them. You can look some of them up. I commend the Scottish Partnership for Palliative Care’s website; its submission is published there. The Neurological Alliance of Scotland also published a submission—I declare an interest because I am a trustee of the latter.

Both those submissions illustrate that this is a very complicated issue, as noble Lords have acknowledged, and there are many things that need evening out before we even get to potentially having draft legislation—a Bill or whatever it is; I am still learning parliamentary procedure. I find it interesting that my noble friend Lord Forsyth mentions that there might be a majority for assisted dying in the Scottish Parliament. I remind him that there is currently a majority for independence in the Scottish Parliament, but that does not mean that the people of Scotland want independence.

In my short time in this House, I have seen many amendments that may have been worthy in their own right but were in the wrong place in the wrong Bill. I think Amendment 297 in the name of my noble friend—I feel very nervous suggesting this to such an esteemed colleague—may possibly be the wrong amendment in the wrong Bill.

Baroness Walmsley (Liberal Democrat)

My Lords, I rise to speak on my own behalf; I am not representing anybody. The substantive issue is a conscience issue. I do, however, support the amendment in the name of the noble Lord, Lord Forsyth, because I think it is a discussion whose time has come. I am very impressed and pleased that noble Lords have resisted the temptation to discuss the substantive issue this evening, because all of us here understand—unfortunately, many outside do not—that this amendment is not about the substantive issue.

However, I am somewhat disappointed that the noble and learned Lord, Lord Mackay of Clashfern, wishes to knock it out on a procedural point. I think it is much more important than that. The noble and learned Lord is a wily old politician, and he knows very well that if you want to defeat something, it is often a very good idea to try to get rid of it on a procedural point. He suggested that we should use the Private Member’s Bill procedure. He has been in this House long enough to know that very few Private Members’ Bills are taken up by the Government and given time, and if they are not given time, they are going nowhere. But it is clear that this country wishes to discuss the matter and have Parliament decide on it.

The noble Lord, Lord Moylan, suggested that we cannot put anything in the Bill that the Government do not want to do. I remind him that every time we defeat the Government on an amendment, we are asking them to do something they do not want to do—and we did it 14 times last week on the policing Bill.

I have one other point. The right reverend Prelate the Bishop of Carlisle talked about vagueness. I think the noble Lord, Lord Forsyth, has been deliberately vague, because it is for the draft Bill to be specific. That is important because we need something very specific to discuss, with specific powers and safeguards that Parliament has put in. Without that, we would have all the fear that we have around the country, much of which has been expressed in our inboxes in these last few weeks. People are afraid of what might be in the Bill and what Parliament might pass, and only if we have a specific set of proposals in front of us can we amend it to put in the proper safeguards. Parliament can then decide, and people can take their view about it. I think that will take away a lot of the fears of people who believe that there will be no safeguards, because I am convinced that this Parliament would put in proper safeguards. If it did not, a lot of noble Lords would suggest some that jolly well should be there, and rightly so. For those reasons, I hope the Minister will consider the amendment in the name of the noble Lord, Lord Forsyth.

On the amendment in the name of the noble Baroness, Lady Meacher, again, I am so glad that she said it is a probing amendment, because other noble Lords have suggested that the drafting would need to be changed to avoid some unintended consequences. I am quite sure that the noble Baroness would do that if it was more than a probing amendment. She is asking for something that patients need: choice at the end of life. I hear what the noble Baroness, Lady Finlay, said about what is already in place. She is an expert on this. It could well be that a conversation needs to be had about whether there needs to be anything further in legislation to strengthen the availability of what the noble Baroness, Lady Finlay, talked about, which sounds absolutely excellent. So I am not expressing a definite opinion on that amendment.

I hope the Minister will consider the amendment in the name of the noble Lord, Lord Forsyth, because we, as practical politicians, know that in the real world—in this Parliament—the Bill brought forward by the noble Baroness, Lady Meacher, is not going anywhere, but we need to have the discussion.

Baroness Stroud (Conservative)

My Lords, I believe it is really important to understand what Amendment 297 does and does not do. It is my understanding that this amendment instructs the Secretary of State—not Parliament—to lay before Parliament a draft Bill that would permit terminally ill, mentally competent adults legally to end their own lives with medical assistance. I listened carefully to my noble friend’s speech on the matter just before Christmas, and I hugely empathise with his own personal journey. But it is important for us to understand what this amendment actually does and does not do.

Having consulted with the clerks, I would like confirmation from the Minister that this amendment does not require the Secretary of State to introduce a Bill. In fact, the phrase that was used to me was that this is the equivalent of posting a Bill through the letterbox of Parliament. I believe that, if this were to result in the Secretary of State having to introduce a Bill, that would be unconstitutional, as this House cannot dictate the business of the other place. Could the Minister confirm that the only impact this amendment would have would be to cause a drafting of a Bill and not its introduction?

If this is the case, though, I am concerned about the narrative that is developing around this amendment. It has been referred to as a guarantee of parliamentary procedure. It has been referred to as Members of the House of Commons and the House of Lords having the opportunity to debate this Bill. It has been said that this amendment would facilitate the debate—that it would give the opportunity for Parliament to debate. This amendment does no such thing, and it is my real concern that it is being sold to us as a House on the basis of us having the opportunity to debate something, when actually that is not the case.

It begs the question, therefore, why my noble friend Lord Forsyth would want to table such an amendment. Is it possible he believes that the drafting of a Bill by government would confer legitimacy on an otherwise non-government policy? If so, this amendment should be treated with great care. The value and worth of our terminally ill, mentally competent adults are too great to be dealt with in such a way. Are we really arguing that because end-of-life palliative care is so patchy, we need to introduce euthanasia? Surely we need a universal service of palliative care rather than this amendment.

Lord Bethell (Conservative)

My Lords, I would like to speak in support of Amendment 297 from my noble friend Lord Forsyth and specifically address the issue of timing that the amendment refers to:

“The Secretary of State must, within the period of 12 months beginning with the day on which this Act is passed, lay before Parliament a draft Bill,”

and so on. I feel competent to address this point because I was asked myself, when I was Minister, whether the Government should support a debate with a Government-supported Bill on this issue. There were five conclusions that I reached during my thoughts on the matter.

The first was that a Private Member’s Bill, however worthy, was just not going to get across the Table. It was like a soggy piece of spaghetti—very difficult to push across. This issue is very complex, and a large amount of consultation is needed, quite rightly on such a delicate issue, that only a Government can engage in. PMBs may be all right for cosmetic fillers, but not for assisted dying.

Secondly, on soundings with the professions, there was clearly a massive change in the sentiments of the medical professions, and the appetite and desire for reform was profound, among both the membership and the leadership. That was something we had to take account of.

Thirdly, reform in like-minded countries such as Canada, New Zealand and even Ireland had changed the international context for this issue. We cannot duck the fact that Britain is actually behind the curve on this matter.

Fourthly, public opinion has moved a long way on this. The noble Baroness, Lady Wheatcroft, referred to this.

Lastly, there was a large amount of interest, privately, among parliamentary colleagues in engaging on this subject, particularly among those who were not necessarily highly focused on the issue.

My conclusion was that the time was right to have this debate. My message to the Minister is that it is right that the inconsistencies and delicacies of this issue are tackled by the Government and soon. In the phrase of TS Eliot in “The Waste Land”:

“HURRY UP PLEASE ITS TIME”.

Lord McCrea of Magherafelt and Cookstown (DUP)

My Lords, I rise to make just a short contribution. I listened carefully to the words of the noble Lord, Lord Forsyth, for whom I have great personal respect. I watched him in another place and saw his great ability in debate, and I have no doubt whatever that he has much to contribute to the debates here in this House and will do so in the future. However, I have to say that I profoundly disagree with him in this case.

The noble Lord said that he had changed his mind on assisted suicide. He mentioned personal circumstances within the family and then he said that he thought about his own personal circumstances if he were in that position. I do not believe that that is the best way to bring legislation forward, based on your own personal circumstances; you are therefore bringing legislation in for the whole country to meet your own personal circumstances. I have empathy with him and understand the personal circumstances he has had to face.

I say to the noble Lord that I come from a different perspective. I have personal experience of the awful pain of the suicide of a loved one. I know what it is for a family member to come to their wits’ end because of their personal circumstances, where cancer had ravaged the whole family circle, even taking a little child of four, and they could not face life any more. Were they terminally ill? I tell your Lordships, they had died within because of their circumstances. Were they mentally competent to make a decision? They made a decision, and I am sad to say that the rest of the family circle has had to live with that awful pain within their hearts.

This is not an easy situation. I understand that we say that we are not talking about the particulars of a Bill, but this amendment says:

“The Secretary of State must, within the period of 12 months beginning with the day on which this Act is passed, lay before Parliament a draft Bill to permit terminally ill, mentally competent adults legally to end their own lives with medical assistance.”

That is certainly assisted suicide. I heard other noble Lords saying that this was simply asking for parliamentary time to have a debate. We had a long debate in this House on the Bill in the name of the noble Baroness, Lady Meacher, which is in fact progressing.

I notice that the noble Lord is shaking his head. I have to ask this question. Numerous Private Members’ Bills are going through this House and are progressing, perhaps at a slow speed. Why is this one different from the others? Do we ask the Government simply to pick this one out and forget about all the rest, or are we saying that they should do it in a timely fashion? Let the Government give this special time to those that are already in that process, and when it comes to the Bill in the name of the noble Baroness, Lady Meacher, time can be given for that to progress and to provide a Bill.

Over these past two years this whole nation has been fighting to save life, not take it. We have spent billions of pounds in trying to do that and I pay tribute to the health service for all its efforts. An assisted suicide law, however well intended, would alter society’s attitude towards the elderly, the seriously ill and the disabled, sending a message that assisted suicide is an option that they ought to consider. Society should not allow a double standard in allowing some people an assisted suicide while we do all we can to prevent young people and other vulnerable groups committing suicide—

Lord Warner (Crossbench)

I am sorry to interrupt the noble Lord but is he aware that in all the countries I cited in my speech, parliaments played a facilitating role in changing the law and consulting their citizens on these kinds of changes? Is it not a bit strange that so many English-speaking and non-English-speaking democracies that we all respect managed to go down that path with the help and facilitation of their own parliaments?

Lord McCrea of Magherafelt and Cookstown (DUP)

My Lords, there is a process that the noble and learned Lord, Lord Mackay, outlined tonight for how this issue could proceed. I believe we should bow to his legal and learned knowledge concerning this matter.

I think society should give everything financially and provide palliative care to those who are in need at the end of life. I trust and pray that this House will send a clear message that we will do everything to ensure people live with decency and honour rather than telling them that we will help them to die.

Baroness Merron (Labour)

My Lords, this debate has probably exposed more that is not resolved rather than what is resolved. Having listened very closely to the passionate, informed and often personal contributions from noble Lords this evening, I feel there was some inevitability that that is where this debate would lie.

I want to touch on the two amendments before us. I am grateful to the noble Baroness, Lady Meacher, for clarifying that Amendment 203 is a probing amendment. I am reminded of when we debated these issues in the previous group where your Lordships’ House had great regard for ensuring that a patient’s final wishes should be respected as a kindness. This allows respect and dignity but is also practical in respect of reducing unplanned hospital admissions and other interventions.

There may well be merit in further consideration of the sentiments in the noble Baroness’s amendment that patients should have the opportunity for meaningful conversation about what matters most to them at the end of their life. Of course, the noble Lord, Lord Carlile, is also right about ensuring protection for those who are more vulnerable, and I am sure that, in the course of further discussions, those considerations will be made.

With regard to Amendment 297 put forward by the noble Lord, Lord Forsyth, obviously your Lordships’ House has heard, as I have, the depth and range of concerns and opinions across this issue. Such an important legislative change as proposed in this amendment would need to be its own topic, in its own Bill. I do not feel that any steps towards such a monumental change should be added via an amendment to a Bill that concerns itself entirely with other matters, as does this Bill.

In conclusion, whatever the views of noble Lords on assisted dying and however strongly held those views are, I believe that your Lordships’ House should do justice to it but that this Bill does not provide that opportunity.

Lord Kamall (Conservative)

My Lords, this has been a fascinating discussion and debate. I recall watching the debate on the Private Member’s Bill of the noble Baroness, Lady Meacher, a few weeks ago; I remember thinking that that was Parliament at its best. The arguments on both sides are fascinating—thank goodness I was not the Minister responding.

I thank my noble friend Lord Forsyth for assuring me today that we were not going to re-open the whole issue but talk only about the merits of the noble Lord’s amendment. Before I turn to his amendment, I will start with Amendment 203 tabled by the noble Baroness, Lady Meacher.

It is incredibly important that everyone at the end of their life, whether or not they have been diagnosed with a terminal illness, has the opportunity to discuss their needs, wishes and preferences for future care, so that these can be taken fully into account. There is ongoing work across the health and care system, as the noble Baroness, Lady Finlay, alluded to, to support this aim, including a commitment within the NHS Long Term Plan to provide more personalised care at end of life, and a recently updated quality statement from NICE on advanced care planning. In addition, we have established the ministerial oversight group on Do Not Attempt Cardiopulmonary Resuscitation, following the CQC’s review of this during the Covid-19 pandemic. This group is developing a set of universal principles for advance care planning to further support health and care professionals in having appropriate and timely discussions with individuals at the end of life. We believe that patient choice is a powerful tool for improving patients’ experience of care, and we intend to ensure that effective provisions to promote patient choice remain. However, I do not feel it is appropriate to specify the level of detail included in Amendment 203 in the Bill, and I hope the noble Baroness, Lady Meacher, will consider withdrawing her amendment.

Let us now turn to the amendment that has been much discussed. As many noble Lords have rightly said, it is a long-standing position that any change to the law on assisted dying is a matter for Parliament to decide, rather than one for government policy. Assisted dying remains a matter of individual conscience, on which there are deeply held and very sincere views on all sides. Sometimes these are informed by one’s own experience of family members; other times, these are informed by one’s faith. You can rationalise it, or argue, but people have very strong feelings on both sides.

Noble Lords are aware of the Private Member’s Bill of the noble Baroness, Lady Meacher, on this subject, and we look forward to further debate in Committee when parliamentary time allows. I will commit to discussing this with the Chief Whip, given the request that was made. But as this matter is so important and is a matter of conscience, we cannot take a partisan position. If the will of Parliament is that the law on assisted suicide should change, the Government would not stand in the way of such change but would seek to ensure that the law could be enforced in the way that Parliament intended.

Lord Forsyth of Drumlean (Conservative)

I am most grateful to my noble friend. Could he just clarify what he said? Did he say that there was a possibility that time would be made available for the Bill of the noble Baroness, Lady Meacher?

Lord Kamall (Conservative)

I am afraid that I cannot give that guarantee. I will commit to speak to the Chief Whip about whether time could be made available.

Lord Kamall (Conservative)

I was not expecting that reaction.

On Amendment 297, it would not be appropriate to include a commitment to bring forward new primary legislation in the Bill. Future Bills and the use of parliamentary time are decisions that are rightly made via other avenues. As I said, I will commit to speak to the Chief Whip—he is not very far from me at the moment.

A number of noble Lords spoke about definitions. It seems that tonight we have challenged the definition of “neutral”. I was told that if I did not support this amendment, it would not be a neutral position. Given that those who spoke in favour of the amendment tend on the whole to be in favour of assisted dying, would it be a neutral position if I supported it? Therefore, have we now got a subjective understanding of neutrality or, as I said in my PhD viva, a subjective view of objectivity?

For all these reasons, I ask the noble Lord to consider not moving his amendment, but I fully expect him to come back to it in future.

Baroness Meacher (Crossbench)

My Lords, I thank the noble Lord, Lord Forsyth, for tabling his amendment. I was asked by other noble Lords to make it absolutely clear, and I have no problem with this, that I fully and strongly support his amendment. I did not speak to it because of time.

I thank a lot of noble Lords for being very good this evening about not addressing the great issue of assisted dying, because that would have been entirely inappropriate. Many noble Lords have been careful not to do that, so I am grateful to them. I am also grateful to the many noble Lords who have made clear their support in particular for Amendment 297. I was very clear about my own amendment; it is a probing amendment. I thank the Minister for his response and the Chief Whip for placing this at the very end of the day so that we did not spend 12 hours on it—I think we can all be grateful for that. I thank all noble Lords here tonight. I beg leave to withdraw the amendment.

Lord Forsyth of Drumlean (Conservative)

My Lords, it is late. Tempted as I am to respond to all the arguments that have been put—I have some extensive notes here—I want to make just two points.

First, on the procedural arguments that have been put, if the amendment was not in order, it would not have been allowed to be put on the Marshalled List. Had the clerks advised me that there was any constitutional or procedural problem with the amendment, of course I would not have tabled it—a tradition which I hope will be maintained in this House. All these arguments about procedure—people can think it is not the right thing to do, but ultimately it is for the House to decide. I am most grateful to my noble friend the Minister; I suspect the Chief Whip will not be as accommodating as he might have hoped when he has his conversation with him.

The Minister made the point that many of the people who supported my amendment had a particular view on this issue, but it is important to point out that all those who sought procedural reasons for why it would be inappropriate also have a particular point of view. That is why we need a proper debate.

On the Private Member’s Bill of the noble Baroness, Lady Meacher, the most disingenuous argument has been that which says, “Well, we’ve got a Bill before us”, when there is not time even for a Committee stage and there are some 200 amendments. It is well-trodden path.

I shall not say any more other than that if I wanted to summarise succinctly, I would probably have said everything that the noble Baroness, Lady Walmsley, said. Not only is this the first occasion that I have praised the Scottish Parliament to the skies but it is the first occasion that I have relied on a Liberal to put into words what I feel about an issue. The Committee should also take notice of what my noble friend Lord Bethell, who was the Minister, had to say. He said that he would like to have done this as a Minister. I do not know whether my noble friend wants to change places with him again so that he can come back and make it happen. It is wonderful how when one is no longer in government one is able to say all kinds of things one was not able to say in government.

On the basis that I believe that this matter needs to be decided by the House, I shall consider the points that have been made and come back to it on Report, but I think that I will want at that stage to test the opinion of the House.

Amendment 203 withdrawn.

Amendment 204 not moved.

Clause 69 agreed.

Amendment 205 not moved.

Schedule 11 agreed.

Clause 70: Procurement regulations

Amendments 206 to 213 not moved.

Clause 70 agreed.

Lord Ashton of Hyde (Conservative)

My Lords, I have got up twice today to ask people to be succinct. Front Benches and Back Benches have been very good at that, so I want to say thank you very much. I am very grateful.

House resumed.

House adjourned at 11.26 pm.