Supplementary Written evidence submitted by NHS Providers (HSC0987)


26 March 2021


Rt Hon Jeremy Hunt MP

Chair, Health and Social Care Committee By email

Dear Jeremy


Inquiry into the white paper on health and social care


We were pleased to have the opportunity to raise a number of key issues relating to the government’s white paper Integration and Innovation: working together to improve health and social care for all in our written evidence and in the Committee evidence session on 2 March. We now write to follow up our oral evidence with five areas that we think are important for the Committee to address in its inquiry report.


The Committee is in a unique position to help ensure that the forthcoming Bill provides an enabling legislative framework that supports the health and care sector, and the providers we represent, to deliver high quality care for patients and service users. We therefore ask the Committee, in formulating its conclusions and recommendations, to consider the following issues as a priority:


1.       The proposed new power of direction for the Secretary of State for Health and Social Care over the newly merged NHS England must be framed in a way that maintains the NHS’ clinical and operational independence.


The government has not yet set out the detail of how it intends any new power of direction to operate. But you will remember that in our oral evidence we set out a number of areas where we, and our members, believe it would be inappropriate for the Secretary of State to have an unfettered power of direction.


We therefore hope the Committee would make it clear that they believe that, however the power is framed, appropriate NHS clinical and operational independence must be maintained. For example, the power of direction should not be exercisable in respect of individual NHS procurement decisions; treatment or drug funding


decisions; the hiring and firing of frontline NHS leaders, who should continue to be appointed openly and on merit; or geographical resource allocations.


The government would therefore need to appropriately define the power in terms of:



Given that the introduction of this power is a new policy proposal which has had no prior consultation, we also hope the Committee would urge the government to discuss the drafting with the sector before finalising it.


NHS England, Monitor and the Trust Development Authority (TDA) each have a different statutory base with varying degrees of ministerial power of direction, from almost complete of control of the TDA to very little control of Monitor. In line with the argument above, we think it is important that the clauses creating the newly merged organisation similarly reflect the need for that organisation, and the wider NHS, to have an appropriate degree of independence. This needs to include the arrangements for the mandate of that organisation.


We recognise the logic of the Secretary of State having “Henry VIII type powers” to

move responsibilities between arm’s length bodies via secondary legislation. However, the exercise of these powers, again, must not threaten the operational independence of key parts of the NHS. We therefore hope the Committee would endorse our view that, given their central roles, it is inappropriate for the Secretary of State to be able to either abolish the newly merged NHS England or the Care Quality Commission, or neuter them by transferring the majority of their powers to other bodies, via secondary legislation. Such far reaching changes should require primary legislation.


2.       The Secretary of State’s powers over local reconfigurations should only be exercised when clear and robust criteria for doing so have been met.


The White Paper proposes a new power of intervention for the Secretary of State on local reconfigurations. Again, it is difficult to be definitive in advance of seeing the detailed drafting. But we would hope that the Committee would express its support for the following principles that:


Again, given that this is a new power that has been introduced without prior consultation, we hope the Committee will urge the government to agree how the power would work with the sector before finalising the drafting.


3.       For Integrated Care Systems (ICSs) to function effectively, they need a sufficiently permissive legislative framework and clarity around how accountabilities fit together across health and care.


We support the move to place ICSs on a statutory footing but remain concerned about some of the detail here. We hope that the Committee will stress:



4.       The Bill needs to go further than simply setting out how workforce accountabilities are distributed.

As discussed in several recent evidence sessions, the NHS is desperately lacking a regularly produced, long-term, workforce numbers plan setting out the desired future shape and size of the NHS workforce. While we welcome the duty on the Secretary of State to set out how workforce planning responsibilities are to be discharged, we believe this duty needs to be considerably strengthened.


We hope the Committee would support the idea of an additional duty in the Bill to ensure the development of regular, public, annually updated, long-term workforce projections drawing on input from all relevant NHS arm’s length bodies, NHS frontline organisations such as ICSs and trusts, and expert bodies such as think tanks.

We believe these projections should set out, independently from ministers, on an

arm’s length basis, the size and shape of the future workforce needed to deliver safe, effective, high quality care and the estimated cost of delivering this workforce. There should then be a duty on the Secretary of State to regularly update Parliament, more than once a Parliament, on the government’s strategy to deliver those long-term projections, including its approach to providing the required funding.


We would also like to see a new statutory duty to involve local systems and trusts in workforce planning, as the current proposal to abolish Local Education and Training Boards removes this important statutory obligation on Health Education England.


5.    The proposed power on NHS foundation trusts’ capital spending limits (CDEL) must reflect the precise wording of the 2019 proposals developed by NHSE/I and endorsed by this Committee in its report on those proposals.


The white paper is clear that foundation trusts and trusts retain their current accountability for the delivery of safe care. The right amount of capital expenditure is central to this task. While we recognise the need, in the move to system working, for NHS England to have a reserve, backstop, power to set individual FT capital spending limits, it is vital that use of this power is carefully controlled. NHSE/I’s 2019 legislative proposals contained a series of detailed safeguards that were agreed with NHS Providers (see Annex 1).


We are concerned that the white paper omitted many of these safeguards. These included a commitment for NHS England to explain why the use of the power in each case is necessary, describe what steps it had taken to avoid requiring its use, and publish any representation from the NHS foundation trust affected. These safeguards must be explicit.


We also hope that the Committee could make clear that the problem of capital limits is, at heart, caused by insufficient overall levels of NHS capital.


We wanted to avoid a long “shopping list” of priorities and have therefore highlighted the above areas as key priorities. But we also remain concerned about the Secretary of State’s proposed powers on turning safe space on and off and the proposed ability to direct the Health Service Safety Investigations Body to undertake

investigations risk its much-needed independence. We are also clear that the Secretary of State should only create new trusts in a locality if this has the support of the relevant ICS and affected providers.


Please do get in touch with us if you would like to have a more detailed conversation on any of these issues.


Yours sincerely

Chris Hopson              Saffron Cordery

Chief Executive, NHS Providers              Deputy Chief Executive, NHS Providers Email:             

Annex 1: The NHS’s recommendations to Government and Parliament for an

NHS Bill, NHS England and NHS Improvement, September 2019


“204. We are not proposing a general power to set capital limits on FTs. Instead, we are proposing that the power for NHS Improvement to set annual capital spending limits for NHS FTs should be circumscribed on the face of the Bill as a narrow ‘reserve power’. Each use of the power should apply to a single named FT individually; automatically cease at the end of the current financial year; and the newly merged NHS England and NHS Improvement should (a) explain why it was necessary; (b) describe what steps it had taken to avoid requiring its use; and also (c) include the response of the FT. To ensure transparency the reasons would be published. To ensure transparency the reasons would be published. The precise form of publication will be a matter for the Bill drafting process. NHS Providers has stated its preference that publication should be in Parliament.


205.  We believe that this approach strikes the right balance. It avoids creating a general power to direct all FTs on capital expenditure. The original intention was neither to erode FT autonomy nor cut across the accountability of an FT Board. Nor was it to direct an FT in relation to which individual capital investment decisions they could or could not make within an overall limit. This is now clear through the proposal for a highly circumscribed power.


206.  The revised power provides an ultimate safeguard to the taxpayer in the event that an individual trust's actions threaten to breach national capital expenditure limits. This is an issue of equity as well as proper financial management – if one trust's actions breach the capital limit it means capital spending in another community has to be reined back to ensure the NHS as a whole lives within its allotted capital resources.”1



















1 for-an-NHS-Bill.pdf


April 2021