The Health and Care Bill is currently at its Committee stage in the House of Lords. It has already passed through the House of Commons, where MPs did a terrible job of amending the Bill, leaving just about all its worst features intact.
It received its second House of Lords reading on 7th December. You can download Greg Dropkin’s useful summary of that debate here.
As it stands, the 2021 Health and Care Bill seems set to complete the abolition of the NHS as a universal health service that provides comprehensive health care for everyone who has a clinical need for it. Despite the cheery assertion of Baroness Wheeler, Shadow Spokesperson (Health and Social Care) and Opposition Deputy Chief Whip (Lords), that
“It was claimed about the 2012 Act, and now about this Bill, that the change in wording [to the duty the law places on the Secretary of State] implies that people will be denied access to treatment from the NHS because, for example, a particular ICB decides to exclude a service and because there is no duty on the Secretary of State to prevent this happening. However, there is no evidence that anyone has ever been denied access to an NHS service or that any service has been refused in general simply because of the change in the wording of the responsibilities of the Secretary of State…[which was] very much in the spirit of the NHS’s founding 1946 Act.”https://www.theyworkforyou.com/lords/?id=2022-01-18a.1601.0&s=speaker%3A24998#g1605.0
The House of Lords have the opportunity to stop the Health and Care Bill.
And failing that, to send it back to the House of Commons with amendments that remove its worst features.
However, in the absence of a determined public campaign, the House of Lords seem to have no political will to do either of these things.
Here is a report by Greg Dropkin of Labour Lords’ failure to grasp the overall purpose of the Bill (as exemplified by Baroness Wheeler’s remark, above), or to get to grips with its worst aspects that they have the opportunity to resolve, if only they would open their eyes to them. Greg’s report also shockingly details the private healthcare technology interests of the influential Labour Lord Hunt of Kings Heath, who has tabled around 60 amendments. Most of them would be of financial benefit to Octopus Ten X health technology investment company. Lord Hunt of Kings Heath is the paid chair of the company’s Advisory Board.
These vital amendments have been tabled in the House of Lords
They are listed in the Third Marshalled List of Amendments of 14 January 2022, and the updated 4th Marshalled List of Amendments of 18th January 2022:
- Amendment 21 – To make sure that an organisation carrying out delegated functions of an Integrated Care Board is a statutory NHS body; and to limit integrated provider contracts to NHS bodies
- Amendment 28 – To prohibit membership of an Integrated Care Board by holders of Alternative Provider of Medical Service contracts, which allow organisations other than general practitioners/partnerships of GPs to provide primary care services.
- Amendment 30 -To ensure that Integrated Care Boards are made up wholly of representatives from public sector organisations, with the exception of GPs, and that private companies, their employees and representatives, and those with financial interests in them, are not represented on ICBs.
- Amendment 45 – to ensure that any providers of health services cannot withhold provision of those services from any individual because of the integrated care board that they have been allocated to.
- Amendment 46 – To restore the duty on the Secretary of State to provide or secure the provision of services to that in the National Health Service Act 2006.
- Amendment 51A – To ensure in an emergency the Integrated Care Board recognises the needs of people in its area by retaining this provision from section 3(1C) of the National Health Service Act 2006.
- Amendment 55 – To remove the possibility for further use of APMS contracts.
- Amendment 150 – To ensure that Integrated Care Partnerships are made up wholly of representatives from public sector organisations, with the exception of GPs, and that private companies are not represented on them.
- Amendment 165 – To put place-based integrated boards on a statutory basis and subject to Parliamentary oversight and meeting in public.
- Amendment 166 – To put provider Networks [provider collaboratives] on a statutory basis and subject to Parliamentary oversight and a requirement to meet in public.
- Amendment 168 – To restore the wording of section 1 of the NHS Act 2006, concerning the duties of the Secretary of State regarding the promotion of the health service, to its original form, before it was amended by section 1 of the Health and Social Care Act 2012.
- Amendment 169 – To require the Government to publish independently verified assessments every two years of current and future workforce numbers required to deliver care to the population in England, taking account of the economic projections made by the Office for Budget Responsibility, projected demographic changes, the prevalence of different health conditions and the likely impact of technology.
Further amendments have been proposed by Prof Allyson Pollock and Peter Roderick .
As far as I can see from the Marshalled Lists, these proposed amendments do not yet seem to have been tabled by any peers:
- To require the basis for allocation of people to an Integrated Care Board to be based on their local residence, and to appear on the face of the Bill (not in a section that gives the Secretary of State the power to make regulations about how people are allocated to an Integrated Care Board); and to remove the concept of an Integrated Care Board’s ‘core’ responsibility. (This is to remedy the problem that the 2021 Health and Care Bill currently says that Integrated Care Boards’ membership will be allocated to the Boards under rules made by NHS England without Parliamentary process – unlike for Clinical Commissioning Groups which were instructed by Parliament about who their members were.)
- To ensure that an Integrated Care Board has the same public involvement obligations as a Clinical Commissioning Group, namely that the arrangements which the Integrated Care Board must make for involving the public in the planning of commissioning, in developing proposals and in decisions on impactful changes are described in its constitution along with a statement of the principles which it will follow in implementing those arrangements,
- To ensure that an Integrated Care Board’s constitution must, as a Clinical Commissioning Group’s constitution must, specify the members of the Integrated Care Board and require its name to comply with any prescribed requirements, such as its name beginning with “NHS” in capital letters, and
- To retain NHS England’s duty to consult with Healthwatch England on commissioning guidance.
Where is the House of Lords Health and Care Bill committee up to?
As of 21st January 2022, the House of Lords Health and care Bill Committee had got up to amendment 71.
Four more sittings of the Committee are scheduled, on 24,26 and 31 Jan and 4 Feb
Fate of vital amendments that have been debated in the House of Lords Health and Care Bill Committee
Amendment 21 was debated on 11 January 2022.
Lord Davies and Baroness Natalie Bennett spoke in favour of it.
For the government, Earl Howe hoped he could
“give some reassurance on two counts: first, that it is not our intention for ICB functions to be delegated to private entities, and, secondly, that safeguards are already in place…
“The power to delegate functions is crucial to unlocking the innovation and integration that the Bill is aiming for. Different areas will have different circumstances, and it is important that they have the flexibility to build arrangements that work best for them, their patients and the public. However, I understand the concern that functions could be delegated to private companies; I assure the Committee that this is not the intention and we do not expect it to happen.
“Private providers are not included in the specific list of bodies which an ICB can arrange for functions to be exercised by or jointly with in the Bill. Furthermore, NHS England may issue statutory guidance on delegation and joint committees, which we expect it to do…
On the integrated care provider contract, I assure the Committee that it continues to be our intention that it should be awarded only to statutory bodies. The published draft integrated care provider contract is suitable for entering into only with statutory bodies. This was based on the recommendation from the Health and Social Care Committee.”
Amendment 28 was debated on 11 January 2022.
It was clear during the debate that concerns about Centene Corporation’s takeover of scores of GP practices in England had driven peers to table Amendment 28.
The government Minister Lord Kamall was not willing to accept the amendment, which Baroness Thornton withdrew after the debate, while asking
“the Minister and the Bill team to reflect on what we might need to do to ensure that those from the private sector, social enterprises and charities whom we commission to run parts of our health service are right and proper people to do so…the problem with APMS is that there is a lack of clarity and it is a bit of a loophole, and we need to look at it again.”
Baroness Joan Bakewell spoke in favour of the amendment:
“Last year, there was a report in America that, increasingly, hospitals there were closing. The report said that hospitals were seen as businesses; a fifth of hospitals in America are run for profit, and globally, private equity investment in healthcare has tripled since 2015. In 2019, some $60 billion were spent on acquisitions. Globally, that includes—indeed, targets—us and the NHS. Where does that affect us? Increasing inroads are being made into the National Health Service by Centene and its subsidiary Operose, which now own 70 surgeries around this country. From Leeds to Luton, from Doncaster to Newport Pagnell, from Nottingham to Southend and many more, Centene now owns and runs for profit surgeries formerly owned and run by NHS doctors. It is now the biggest single provider of GP surgeries in this country. It has further designs on the existing fabric of the NHS, seeking to have its representatives sitting on the boards of CCGs, making decisions about the deployment of NHS funding. This is a direction of travel that needs to be monitored and checked. Safeguards must be written into the Bill against this takeover.
“Why does it matter, just as long as patients have good and free treatment at the point of need? What is the reputation of Centene in America? It is not good. Indeed, it is regularly embroiled in lawsuits from either patients or shareholders, and the sums are not small. In June last year, Centene had to pay a fine of $88 million to the state of Ohio for overcharging on its Medicare department. This is one of many. Since 2000, there have been 174 recorded penalties for contract-related offences against Centene and its subsidiaries. That enterprise is now active in this country and targeting our NHS. It is not a fit company to be part of our health service. I therefore ask the Minister for safeguards to be written into the Bill against such people being represented on our boards. When I raised this at Second Reading, the Minister replied that there was no chance of us selling the NHS. We do not need to: they are buying us.”
Lord Kamall (Conservative) objected,
“The amendment  seeks to exclude individuals whose GP practices hold an alternative provider of medical services, or APMS, contract from being a member of an integrated care board… Some GP partnerships concurrently hold a general medical services contract for core medical provision, as well as an APMS contract. Some individual GPs provide services for a range of practices. The concern is that this amendment would exclude GPs working for one or multiple practices which operate under APMS contracts from being members of the ICB…
“This amendment would prevent some individuals being on integrated care boards, based on what type of NHS GP contract their practice holds. This could limit the ability of primary medical service providers to appoint an ICB member who understands the health requirements of the local population. This could reduce the diversity of GPs who could be appointed, based on their contract type…
“It would be unfortunate to exclude APMS contracts, or anyone who had an APMS contract and who had the expertise needed for those communities that are not receiving an adequate service, or for poor, immigrant communities. This could go against the goal that we all want to see of tackling inequalities.”
Baroness Walmsley (Lib Dem) asked the Minister, Lord Kamall,
“If we were to bring forward an amendment that made it very clear that we had no objection to NHS entities or not-for-profit organisations with APMS contracts being on the ICB, would he take a more friendly approach? It would just eliminate those that take profit out of the NHS.”
Lord Kamall (Con) replied,
” If an amendment were put forward, we would look at it very carefully and consider the unintended consequences from the way it is drafted. We will consider it but, as I am sure the noble Baroness appreciates, I can make no promises at this stage…
“We are also keen to allow ICBs to develop their own governance arrangements, which best take their local circumstances into account. We want to give them the flexibility to learn and develop as their best practice evolves, so that other ICBs could learn from that best practice where there are concerns.
“To support ICBs, NHS England is working with them to issue guidance and to develop and make clear our expectations of ICB leaders—expectations that have been reflected in the discussions and fantastic contributions from many noble Lords. For these reasons, I regret that the Government cannot accept these amendments at this stage. However, I hope I have given noble Lords such reassurance that they feel able to withdraw their amendments.”
Baroness Thornton (Lab) replied,
“My noble friend Lady Bakewell made the point about Centene and Operose, and that is partly why I put forward my amendment on APMS. The Minister may recall that we raised this matter in Questions a few weeks ago, when I asked him to write to me about what system had been used to give that contract to Centene, or Operose, in Camden, the area where I live. Having served on the CCG in Camden, I was aware of the importance of who runs primary care and of who the GPs in our surgeries are. Having right and proper people and organisations running our primary care was one of the criteria that you would use as a commissioner when you were looking at who was running, and who might wish to run, primary care and GP surgeries. I was involved in that process. As I learn about the history and background of this organisation now running primary care and GP surgeries in the UK, I do not think they are right and proper people to be doing that.
“If this amendment does not serve the purpose of stopping that happening, I ask the Minister and the Bill team to reflect on what we might need to do to ensure that those from the private sector, social enterprises and charities whom we commission to run parts of our health service are right and proper people to do so…the problem with APMS is that there is a lack of clarity and it is a bit of a loophole, and we need to look at it again. This may not be the Bill to do it in, but it might be.
With those remarks, and hopeful that the issue of who the members of the ICBs will be will run through our discussions for the next few weeks, I beg leave to withdraw the amendment.”
Amendment 30 was discussed on 13th January 2022
Government minister Lord Kamall regretted that,
“the government cannot accept these amendments at this stage. However, I hope I have given noble Lords such reassurance that they feel able to withdraw their amendments.
“I will consider the comments made by noble Lords very carefully if some of the concerns have not been met, and will have future conversations, between this stage and the next, if they feel that we have not addressed their concerns completely. I regret that the Government cannot accept these amendments. I hope that I have given your Lordships some, if not complete, reassurance and that noble Lords will feel able at this stage to withdraw and not press their amendments.
Before he rejected the amendment, Lord Kamall patted members of the House of Lords on the head and told them not to worry about private sector membership of Integrated Care Boards because the government amendment made in the House of Commons had taken care of the problem. He claimed,
“[W]e brought forward the amendment on this very point at Report stage in the other place. This amendment makes clear that no one may be appointed to an ICB who would undermine the independence of the NHS as a result of their interests in the private healthcare sector, social enterprise or elsewhere, including the public sector.
“We expect this to prevent, for example, directors of or significant stakeholders in private healthcare companies sitting on ICBs. We expect it to prevent those with a significant interest in a private company producing, or seeking to produce, health and care products sitting on integrated care boards. We expect it to prevent lobbyists sitting on boards, and it would prevent anyone with an obvious ideological interest that clearly runs counter to the founding principles of the NHS and its independence sitting on the board of an ICB.
This test has deliberately been framed broadly to reflect the wide range of potential circumstances that would render someone unsuitable to sit on an ICB board. It has also been framed to require the appointing persons to apply an element of judgment, because we want what is best for the NHS at all times and that requires a degree of local flexibility. To guide this judgment and to make sure it is being applied appropriately, NHS England will have the power to issue general guidance on the appointment process. If necessary, we can introduce further requirements in connection with ICB membership through regulations.”
I’ve not been able to find any discussion of this amendment. It was not moved – the House was not invited to take a decision on it.
Amendments 46, 168 and 169 were discussed on 18th January 2022. Together they restore the duty on the Secretary of State to provide or secure the provision of services to that in the National Health Service Act 2006.
Baroness Bennet withdraw the amendment after Baroness Wheeler, Shadow Spokesperson (Health and Social Care) and Opposition Deputy Chief Whip (Lords), said that
“continuing to argue over this issue would not be very productive or get us anywhere”.
And Earl Howe, Deputy Leader of the House of Lords, said
“I hope…that I have explained to the noble Baroness, Lady Bennett, why I cannot entertain her amendments, but also that I have reassured her that the accountability chain between health services, Ministers and Parliament, which lies at the centre of her concerns, remains intact.”
In withdrawing the amendment, Baroness Bennet said
“I reserve the right to consider this and come back to it at a future point.”
This was how Lady Bennett explained the reasons for this group of amendments:
“I ask the Minister: where is the attribution of central responsibility in this Bill? That is a serious question. Where does the Minister think the responsibility of the Secretary of State to ensure that healthcare is available to every person in England resides in the Bill, or does he want to say that such a responsibility does not exist? If Americanisation steams ahead—and let us not forget the US has astonishingly high healthcare costs, with results resembling those of countries with vastly less funds—who will be held to account for that? That is what this group of amendments seek to achieve; to ensure that the Secretary of State is responsible for the outcomes of the Government’s Bill.
“This group of amendments aims to restore the NHS in England as a public system as it continues to be in the rest of the UK and as it used to be in England. I do not want to get too far into the weeds and noble Lords can read the amendments and explanations for themselves, but I am aware that the meaning of the amendments is not particularly obvious in the text, particularly the first, so I will briefly run through them.
“Amendment 46 replaces the word “it”, which refers to integrated care boards and their duties, so the amendment makes it the duty of the Secretary of State to commission health services
‘to meet the reasonable requirements of the people for whom it has responsibility’.
“That means the Health Secretary having responsibility for the people in England.
“Amendment 168 restores the wording of Section 1 of the NHS Act 2006, giving the Secretary of State the duty to promote the comprehensive health service. It very closely echoes the wording in the founding National Health Service Act 1946.
“Amendment 169 says that the Secretary of State must provide, to a level
‘necessary to meet all reasonable requirements’,
services including hospital, medical, dental, ophthalmic, nursing and ambulance. I note particularly proposed new subsection (d), which refers to
‘the care of pregnant women … and young children’ and picks up some of the issues we were referring to in the first group today. On reflection, we could perhaps improve the wording of that, but it is a start in terms of acknowledging the needs of children in the Bill.
“The wording in both these amendments very closely reflects what was found in the 1946 Act, and in every Act up until 2012. I think it is worth reflecting a little on why that wording disappeared from the 2012 Act. It was because there was a move towards market-based structures and so we were relying on the market to provide. That has in this case, as in so many others, proved to be a disaster. Indeed, in bringing forward this Bill in this moment the Government are acknowledging that disaster.
“The timing of this Bill is very interesting. As both Opposition Front-Benchers have noted, it comes at a time when the NHS is struggling to cope, yet it is facing this massive reorganisation. In terms of Amendments 168 and 169 I find myself in a situation I am not in very often; I am advocating to the Committee that we revert to the old, the tried and the tested—the kind of NHS that there is bountiful evidence the public actually want.
“Similar amendments to these were moved in the other place. I note that in the discussion there it emerged that in the 2012 Act there was a compromise amendment. This arose, at least in part, out of the Constitution Committee. The compromise wording was:
‘The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England.’
“I cannot see similar wording in this Bill, but it is long and complex, so I would be interested if the Minister could point me to anything that he sees as similar to that 2012 compromise.
“In the debate in the other place, the Minister said that this change was
‘unnecessary as law. The Secretary of State has the duty to promote the competence of the health service in practice. He is accountable to Parliament for the comprehensive health service’.
“Those words, ‘in practice’, are rather telling. We find ourselves, as we so often do, hearing from the Government, ‘Don’t worry; things will work out. You can trust us. This does not need to be on the face of the Bill’. That is something your Lordships’ House very often—I would say rightly—expresses great scepticism about. We want to see things in law to which the Government can be held to account.
“We know all too well how creaky parliamentary accountability can be: how stretched and limited scrutiny in your Lordships’ House can be, let alone in the other place, where 44% of the vote in 2019 delivered 100% of the power to the Government. There is brilliant work done by Select Committees and brilliant questions asked by individual MPs to highlight issues, but the practical reality is that the Government can just ignore all those things and bulldoze through, and very frequently do.
I note that in the other place, the Minister further said that
‘we should be wary about being overly prescriptive in primary legislation.’—[Official Report, Commons, Health and Care Bill Committee, 14/9/21; col. 183.]
But surely being prescriptive about the fact that we have a National Health Service is what the public unarguably want. The Government are being prescriptive about how they can control ICBs to control local services, but I would say that we have to be prescriptive about what the Government must do. That is a responsibility we must live up to. This is surely not overly prescriptive. I beg to move.”
Amendment 51A was not moved – the House was not invited to take a decision on it.