My Lords, we now come to the group of amendments where the wonderful harmony that has so far filled the House, with all the fantastic concessions and discussions, comes to a bit of an end. It concerns the make-up of the ICBs. I am very grateful to the Minister and the officials for the range of discussions that we have had and, it has to be said, for the consensus that there was and the brilliant initiative by the noble Baroness, Lady Walmsley, which led to Amendment 31. I commend the noble Baroness and the Minister for that amendment, which very successfully looks to the future of how ICBs might work in terms of an audit of the qualities, skills and so on that you need on an ICB. This group, however, reflects the fact that the House is concerned about who serves on ICBs now; they are being formulated and appointments made right now, and the Bill is the only opportunity we shall get to influence who serves on them and how that works.
This group of amendments addresses that issue in various different ways. I feel particularly strongly in my support of the amendment in the name of my
noble friend Lord Bradley, for example. We have had a suite of amendments that have addressed the issue of mental health, but his particularly addresses the issue of ICBs. However, I will allow him to speak to that in due course.
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This amendment addresses the fact that in the Commons there was significant discussion and debate about who should and who should not be a member of an ICB—and indeed, agreement was reached about who should not be eligible. Part of the solution came with the amendment which the Minister brought forward then to ensure that private organisations, other than charities, social enterprises and genuine not-for-profit organisations, will be unacceptable as members of the ICB. Employees of a private organisation, lobbyists and those very recently employed would also be barred from being members of an ICB.
That is in the Bill because it was recognised that it was not enough to rely on the governance around declaring conflicts of interest. The Bill is explicit in its exclusion. The current wording of new Section 14Z30(4) says:
“Each integrated care board must make arrangements for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the board’s decision-making processes.”
Paragraph 4 of new Schedule 1B says:
“The constitution must prohibit a person from appointing someone as a member … if they consider that the appointment could reasonably be regarded as undermining the independence of the health service because of the candidate’s involvement with the private healthcare sector or otherwise.”
There was agreement across the Commons and indeed across your Lordships’ House that that was the right way to move forward.
However, we believe that there is a loophole here. We have discussed this and I have exchanged emails with officials in the department about it, and we believe that the loophole still exists. ICBs will of course be able to set up sub-committees to do some of their work, and those sub-committees can and should be mandated to commission NHS contracts. We believe that the same restriction that the ICB board has on it should be placed on those sub-committees. That is what this amendment centrally concerns.
One of the letters that I received said:
“We anticipate it may be beneficial for a wider range of people to be able to sit on some committees or some sub-committees and NHS England have explicitly asked for this flexibility.”
That reasoning provided made little sense, because it could apply in the same way to the ICB itself. The letter also said:
“We in NHS England think it reasonable to allow private providers to sit on sub-committees of the ICB as barring them risks blocking sensible integration and joint working. For example, if community services in the locality were primarily provided by a private provider it would be unhelpful and damaging to patients to bar an important provider from the committee discussing discharge pathways in that area.”
In fact, the original amendment that was agreed in the Commons was because Virgin Care, as was, got its place on the ICS in its area—which, as we know, was the forerunner of the ICBs—because it was a community provider in that area. So the very thing that caused the
anxiety in the first place and which Ministers claim to have addressed—which they have—is in our view still a loophole. We believe that applying the same restrictions to commissioning at that level is unacceptable and flies in the face of flexibility.
One of the reasons for that is that ISPs will set policy and have the discussion about integration. We have accepted that, given the right kind of governance, of course they should have a range of people on them, including people representing the private sector in that area, because those bodies will not be commissioning NHS services. They will be discussing the appropriate commissioning for the ICB to do for that area. We think that is exactly the right place for the flexibility that NHS England seems to be so concerned about to take place.
I regret having to table this amendment but, after many exchanges—this is not an academic argument—we have been told that much of the ICB’s commissioning role will be delegated to, for example, place-based committees. Those place-based committees will be commissioning NHS services. We suggest that the rules that apply to the ICB should apply also to those place-based committees. So at the moment, unless the Minister has something very different from the letters that his officials have sent me about this matter, we will seek the opinion of the House. I think that is a shame. But ICBs are powerful bodies allocating many billions of NHS funding and influencing many millions as more integrated commissioning takes place. We think that the role of allocating funds in the best interests of patients, carers, service users, the public and the staff should be properly governed and governed by the same rules at local level as they are at ICB level.
The amendments in this group seek to express in different ways the fact that we are still unhappy with the way the ICBs are representing themselves. In Committee, the Minister said to us on several occasions, “This is what the NHS wants”. I think one noble Lord—I do not think it was me—said it was not really the point that NHS England wants this. We are talking about what is best for the locality, the patients and the people in it, and how we best invest and use our NHS money. So what we see in this group is that we are not quite there yet. I beg to move.