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Robert Ede is Head of Health and Social Care at Policy Exchange.

The Health and Care Bill had its second reading in the House of Lords this week.

Till now, its passage has been relatively straightforward – Conservative Home ranked it a modest four out of ten for controversy when investigating this session’s legislation in September. This is not a surprise given an 80-seat majority, and the genesis of the proposals, which resulted from extensive consultation by the NHS over 2018 and 2019. Former NHS Chief (and now Peer) Sir Simon Stevens described the contents as 85 per cent things the NHS has asked for, deflecting the criticism from the Opposition that this is the “wrong bill at the wrong time”. Arguments that the new structures would pave the way for privatisation have been debunked, and now more formally neutered through a Government amendment at third reading in the Commons.

Things will be different in the Lords. The Government lacks a majority and simultaneously faces pressure from the NHS for the Bill to achieve Royal Assent in early 2022 so that the new structures can be formalised by April. These factors together increase the likelihood of compromise.

What is likely to change, and what should remain the same?

There were clues during this week’s debate, with Peers challenging the Government on three areas:

  • Workforce, continuing the campaign led by Jeremy Hunt in the Commons
  • Adult social care, which again faced strong push back after a last-minute Government adjustment to the generosity of the ‘cap and floor’ model
  • Enhanced Ministerial powers to direct the NHS and to intervene in reconfigurations (such as hospital closures).

Whilst there may be grounds for compromise for the first two, it is important that the Government holds its nerve and retains the clauses which strengthen the political accountability of the NHS.

A workable compromise for the workforce?

There are serious issues facing the NHS workforce. Nearly 100,000 vacancies, widespread reports of staff burnout and stress, and a reliance on short term measures to backfill the gaps, such as the recently announced NHS Reserves Programme. All of these are symptomatic of the absence of long-term workforce planning.

The Government has recognised this by introducing a requirement in the Bill for the Secretary of State to report every five years on the system for assessing workforce needs. Many want to see this go further. An amendment tabled by Jeremy Hunt, the chairman of the Health and Social Care Select Committee, for independently verified workforce assessments every two years was backed by 50 representative organisations. In the debate itself 18 Conservative MPs chose to rebel against the Government, cutting its majority by a quarter.

Similar amendments are likely to be brought forward as we enter the Committee stage in the Lords. Encouraging the regular reporting of workforce estimates is sensible; once in every Parliament would be a substantial improvement on current arrangements (the last major healthcare workforce strategy was published in 2003). Introducing bi-annual reporting, with precise modelling by speciality may be a further, justifiable compromise. Much of this work is already undertaken within Whitehall and could be made public. However, the Government must think carefully about the consequences of legally mandated independent assessments.

The elected Government of the day must be free to deliver Manifesto commitments – including for the NHS workforce which now represents 45 per cent of the NHS budget. ‘Independent’ verification of manifestos may not be desirable but is it even achievable? Whilst there is a groundswell of support for more regular workforce planning, there is less likely to be a consensus on how the pie should be precisely carved up. Take radiography as an example, where research has found a divergence in understanding of how AI pattern recognition may re-shape workforce need. Or general practice, where portions of the workforce (which is increasingly female, and part time) may have different views from the BMA on the attractiveness of the current partnership model.

In these examples and others, political judgements are required where consensus cannot be found. Whilst bi-annual reporting and internal modelling would be a positive step forward, it would be unwise to try to de-politicise NHS workforce planning.

Doff the cap?

After the Government chose to bring forward changes to the cap and floor at short notice to make the scheme more financially sustainable, the amendments (which affect the 2014 Care Act) faced a significant rebellion and were narrowly voted through with a majority of just 26.

We can expect to see the Lords ask for the Commons to think again. The core criticism: that the revised calculation which will exclude Council contributions and thereby hit poorer people harder is valid. However, the Government is the first to tackle the issue of social care in decades, and as Policy Exchange has argued elsewhere, these reforms must illustrate the first step on a broader journey. Further Parliamentary ping-pong on social care could derail the wider passage of the Bill. Having expended substantial political capital in the Commons, the chances of a further U-turn from the Prime Minister feel remote.

Holding the line on accountability

The Bill proposes four main reforms to increase Ministerial intervention powers. These have proved contentious, with many asking: Why do Ministers want these new powers? How will we avoid the unhelpful politicisation of hospital closures? Should such a general power of direction over the NHS be granted?

These are legitimate questions. On reconfigurations, the case is less clear cut. The current approach – where a contentious service redesign is referred by the local authority to the Secretary of State who then receives impartial advice from the Independent Reconfiguration Panel seems to be functioning reasonably well. Only a few weeks ago, the current Secretary of State chose to approve a much delayed stroke service reconfiguration in Kent following independent advice, despite earlier opposition being raised by three local Conservative MPs. A new power allowing the Secretary of State to intervene sooner, and across a range of reconfigurations, needs a clearer justification. There is no guarantee this will pass into law – Lord Stevens concluded his maiden speech with a stinging critique of this proposed power – and it will be important for further safeguards to be added.

The three other powers; a flexible mandate, the transfer of functions and a power of direction, were cautiously welcomed by Policy Exchange when the White Paper was first published in February. Yet the case is arguably stronger now following the decision to fold NHS Digital, Health Education England and NHSx alongside NHS Improvement into NHS England. An organisation boasting 20,000 employees is a far cry from the ‘thin’ management board envisaged by Andrew Lansley when he created NHS England in 2012. Being able to adapt its structures and objectives to reflect the priorities of an elected government is important – and crucially a view shared by both main political parties. Labour’s most recent National Policy Forum report called for a restoration of accountability in the health service “underpinned by a duty on the secretary of state over health”.

It is possible to see how the new power of direction could be used to deliver against a much bigger agenda. We are increasingly looking beyond the NHS to shape the health of the nation. This requires new forms of partnership to improve people’s environments, housing, and education and employment opportunities. It also requires sustained political buy-in.

The Secretary of State has a unique role in this context; as a fixer who can bring together different Whitehall departments with Local Government and others and create the conditions for change. It is an agenda that many have long advocated for, and there are encouraging signs that the Government is listening, most recently through the decision to revive a Cabinet-Committee for Health Promotion.

The new powers in the Bill would allow cross-Whitehall action to be formalised, for example by requesting to feed into NHS guidance before it is published. Far from a meddling distraction, this type of Ministerial intervention could deliver genuine and positive change.

Conclusion

The NHS is the most important public service and institution in the country. Nearly one quarter of public services expenditure goes towards health. It is also now the beneficiary of additional investment in the form of the Health and Care Levy, a ringfenced discretionary 1.25 per cent increase to National Insurance Contributions. There should therefore always be a debate about the appropriate level of political involvement in the NHS.

If the Lansley reforms argued passionately against political oversight, then the current Bill presents the case for the defence. With a lengthy passage through the House of Lords expected, the Government will face pressure to water down their plans. But whilst sensible compromises may be found on workforce and social care, when it comes to ministerial powers, they must hold their nerve.