Health and Care Bill — House of Lords, 2022-02-09
Topic: Government Operations
Syed Kamall (Conservative, Centre-right): My Lords, as many other noble Lords have said, this group contains a range of amendments in relation to the power to transfer the functions of the arm’s-length bodies. Because some of the bodies within the scope of this power perform functions in areas of devolved competence, Clauses 88 to 94 engage the legislative consent process. To ensure that we can proceed on a UK-wide basis, the Government have agreed to make a number of amendments, while recognising the comments of the noble Baroness about support for those amendments. Following the recent conclusion of our negotiations with the devolved Governments, I am pleased that they have now recommended to their respective legislatures that legislative consent Motions be granted provided that these amendments are accepted Amendments 231A and 231B will remove devolved Ministers, the Northern Ireland Department of Health and Welsh NHS trusts from the list of appropriate persons to whom property rights and liabilities can be transferred through a transfer scheme, following a transfer of functions. Following a request by the devolved Governments, we determined that it would not be necessary for such a transfer to those entities to occur Proposed Amendment 231C creates a requirement for the Government to obtain the consent of the devolved Governments for any transfer of functions that are within the competence of their legislatures or that modify functions exercised by Welsh Ministers, Scottish Ministers or a Northern Ireland department. While the majority of the functions within the scope of the power relate to reserved matters or apply in England only, certain bodies have functions that meet the criteria laid out above. This requirement to obtain the consent of devolved Ministers replaces the requirement to consult them. The Secretary of State will still be required to consult any body to which the regulations relate and can consult such other bodies as the Secretary of State deems appropriate. A memorandum of understanding is currently being finalised that sets out how the devolved Governments will be engaged from an early stage of policy formulation Amendments 231D to 231G are consequential on the changes to Clause 94 made by Amendment 231C. We have also agreed with the Welsh Government to make Amendment 227A, which clarifies that the powers in Part 3 of the Bill apply only in relation to England-only and cross-border special health Authorities and not Wales-only special health authorities. It has never been the Government’s intention for references in Part 3 of the Bill to special health authorities to include Wales-only ones. This amendment simply makes that explicitly clear I would also like to provide some reassurance to the devolved Governments about Clause 91(6), which sets out that the consequential provision that may be made when making regulations to transfer functions includes consequential changes to devolved legislation. The reason this is necessary is that there are references to the relevant arm’s-length bodies in devolved legislation that may need to be amended to reflect a transfer of functions or the renaming of a body. Amendments to devolved legislation under this power may be made only if they genuinely flow from a transfer of functions. This is not a broad power to make sweeping substantive changes to devolved legislation. In a similar vein, we want to provide assurance to the devolved Governments about Clause 149, which is a wider power to enable the UK Government to make consequential amendments that may be necessary following the passage of the Bill. This type of power is quite common in a Bill as large as the Health and Care Bill and there are many examples of similar powers in legislation already on the statute book. Amendments, including amendments to devolved legislation, under this power may be made only if they are genuinely consequential upon provisions within the Bill. Like Clause 91(6), this is not a broad power to make sweeping substantive changes to devolved legislation I now turn to Amendments 229 and 230 relating to Clause 91 that have been spoken to by the noble Lord, Lord Patel. Clause 91 does not create powers in and of itself. Rather, it sets out certain types of provision that may be made when the Secretary of State uses the power to make consequential provision where making regulations under the Bill—Clause 150—alongside the power to make regulations under Clauses 89 or 90 transferring or delegating functions. Anything done under the powers to which this clause relates, therefore, would need to be genuinely consequential, supplementary or incidental to a transfer or delegation of functions It is impossible to predict every consequential provision that may arise from a transfer of powers and functions. Therefore, it is appropriate that the list in Clause 91(1) should be non-exhaustive, and include provision for abolishing and changing functions, as well as conferring them. Any changes would be made under the affirmative procedure, allowing Parliament to scrutinise them, and I hope the noble Lord will feel that he does not need to press his amendments I turn now to Amendment 227 and 228, tabled by the noble Lord, Lord Hunt, and spoken to by the noble Lord, Lord Clement-Jones. The merger of NHS Digital and NHS England was a recommendation of the Wade-Gery review. The aim is to give NHS England overall accountability for leading the transformation of digital services in the NHS, which includes how we use data effectively and securely Years ago, when I did my master’s in information systems management, one of the things we found out about companies or push-back companies was that digital and technology should not be separate or a bolt-on. They should be an integral part of the strategy and NHS Transformation tells me how integral technology is to transformation. If you consider it a bolt-on, it will not be integral to the overall strategy. To quote from Putting Data, Digital and Tech at the Heart of Transforming the NHS: "data and analytics must become a core capability for NHSEI and the wider healthcare system going forward … Currently, this capability is split across NHSEI, NHSX and NHSD and, as a result, is being underutilised with duplicated activities, investments and capabilities." The report makes clear the benefits of these proposed changes There is also no question of diluting the current patient data protections. The planned merger will largely be achieved through a transfer of functions, staff, services and platforms from NHS Digital to NHS England. The Government will continue to hold NHS England to account for delivery of these functions, just as it currently holds NHS Digital to account. None of the changes we are making will remove the protections in respect of patient data I thank the noble Lord, Lord Warner, and the noble Baroness, Lady Walmsley, for for moving their amendment into this group. Placing these kinds of constraints on the Government’s power to commence legislation would be both unusual and counterproductive; we believe that our elective recovery delivery plan, which was announced yesterday, is better suited to solving the issues in this debate. We have committed an additional £2 billion this year, plus a further £8 billion, and laid out how we expect to tackle the backlog. As the noble Baroness, Lady Merron, rightly said, there was a backlog before, and we would have been tackling it earlier had it not been for Covid. We intend to deliver on our proposals, and those in the 2019 NHS Long Term Plan.