My Lords, I thank the Minister for introducing these regulations and for the assurances he has given your Lordships’ House. I also express my appreciation to my noble friend Lord Hunt for what, as other noble Lords have said, was an extremely detailed and helpful examination of the challenges that these regulations present. I hope that the Minister will take his amendment and this debate in the spirit which I know is intended.
I share the view of all noble Lords who have spoken this evening that digital transformation of the NHS is a good thing; on that we are agreed. We all support the use of information to make things better for patients. However, this is about getting it right, and I hope that the debate this evening has contributed greatly to that. It is about confidence. As the noble Lord, Lord Allan, just said, people should not be surprised. They should also not find themselves compromised, uncertain or in any way undermined by the use or misuse of data. That is the challenge before us.
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As the noble Lord acknowledged, during the passage of the Health and Social Care Act 2022 there was concern that, in bringing NHS data and delivery functions together, some of the existing safeguards might be somewhat threatened. As other noble Lords have said clearly to the Minister, I say as clearly as possible that, while the department plans to make the transfer on 1 February—a mere few days away—essential statutory guidance is not yet available except in draft form and the latest version was made available only a few days ago. As the noble Baroness, Lady Brinton, rightly said, it would have been extremely wise to have included all the necessary stakeholders in preparing that draft guidance. I hope that the Minister has sensed the will to get this right, not just in the Chamber but outside it. It is extremely disappointing that this does not appear to have been followed through.
In the Government’s own Explanatory Notes about these regulations, there is recognition that
“leadership of digital transformation has been disjointed”,
and that
“the fragmentation of national bodies… made it hard to achieve”
an integrated and accessible digital health system. I am sure that this view was informed by the Laura Wade-Gery review, which was published in 2021. The Government set out their stall, but there was a responsibility on them to ensure that this could be seen through.
The department says that NHS Digital staff and assets will transfer to NHS England before going through the wider change programme to create a new NHS England, and that this will ensure that the necessary talent and expertise of NHS Digital is maintained. How long does the Minister anticipate that the change programme will take? Can he give assurances that talent and expertise will be retained?
New duties on NHS England will include a requirement for the body to report on how effectively it discharges its relevant data functions, as well as there being a new
duty on the Secretary of State to issue guidance to NHS England about the exercise of those functions. When is that guidance likely to be published and what expertise has been drawn on to generate it? Can the Minister assure noble Lords that the acceleration of the merger—originally planned for April 2023 but brought forward—will not adversely affect IT continuity or staff preparedness? Can he outline what level of communication current NHS Digital staff have received about the merger and whether this process has been impacted by the acceleration?
A whole range of very searching and helpful questions have been put to the Minister, so I will not repeat them but endorse them; they get to the heart of what we are talking about here. However, there are a few points that I want to pick up on, with one or two new questions. We have talked about whether NHS England is marking its own homework. I was somewhat perplexed by the comments of the department, which told the Secondary Legislation Scrutiny Committee that it believes that previous ministerial commitments to the House are being met, including saying that NHS England is not marking its own homework because the chief delivery officer will oversee the NHS England transformation directorate. I hope that the Minister can help me to make sense of why that is not marking one’s own homework.
I have a few further questions about the National Data Guardian’s views on the changes made by these regulations and how the department has responded. Approvals for data use are currently reviewed by the independent group advising on the release of data, which the Minister’s predecessor rightly lauded for the detail that it makes available, as a demonstration of the integrity of the process. Integrity is so important. Will all advice-giving meetings continue to have published minutes, as they do now? Can the Minister confirmed that this independent group will advise on all data projects?
Several noble Lords referred to NHS England’s federated data platform. Perhaps the Minister can help me here. The tender says that the first instance will cost, as we know, half a billion pounds—that is for the first and largest of the four parts. However, the 42 ICSs and potentially every trust and GP will need some compatible environment to use the tools that NHS England is procuring. Is this model incentivising every ICS and trust to buy its own installation of the national platforms so that it can use tools from the marketplace under its own governance and control without being managed nationally, or is a different approach being taken?
I have one last question: after the regulation moves the powers to NHS England, will the new arrangements allow a patient to log into the NHS app and see whether data about them has been accessed? There are, as I am sure the Minister has heard, many questions. I hope that he and his team will take them in the spirit in which they are intended, because this debate and the contributions today are all about getting it right for the NHS and for patients.