Health and Care Bill

Written evidence submitted by UNISON (HCB42)

Health and Care Bill: Public Bill Committee

UNISON is the UK’s largest trade union, with 1.3 million members providing public services – in the NHS, local government, education, the police service and energy. UNISON has the largest health membership of any union in the UK, as well as the most members working in social care.

Key points

· UNISON supports the parts of the Bill that seek to remove the worst aspects of the Health and Social Care Act 2012, specifically those elements dealing with competition and procurement.

· These have led to an increase in privatisation and have hindered attempts at greater collaboration and integration within the service.

· While it is regrettable that it has taken so long to address these problems, a wide consensus across the NHS has been established on the need to rid the NHS of this market bureaucracy.

· It is frustrating therefore that the government has sought to bolt on other more contentious reforms to the current legislation.

· There are measures in the Bill where UNISON has serious concerns or where greater clarity is required, including the membership of Integrated Care Partnerships (ICPs) and the fact that Integrated Care Boards (ICBs) are being given freedom to determine staff pay and conditions.

· In terms of workforce and the transition to the new system, the union will be highlighting the importance of the Employment Commitment to staff and the need for this to be an enduring commitment that applies beyond the transfer of staff to ICBs. 

· There are a number of areas where UNISON would particularly support amendments to improve the Bill (these are highlighted in bold below).

Competition and procurement

1. UNISON supports the measures in Clauses 70-73 and Schedule 12 of the Bill to remove much of the competition and enforcement regime that currently applies to the NHS. The NHS should never have been subjected to economic regulation in the way the 2012 Act intended, so it is reassuring to see that the Competition and Markets Authority will have its remit stripped right back and that the competition enforcement powers of Monitor (which included the need to "prevent anti-competitive behaviour") will be scrapped rather than transferred to NHS England.

2. UNISON is glad to see that Clause 69 of the Bill repeals Section 75 of the 2012 Act along with the 2013 Procurement, Patient Choice and Competition Regulations that stemmed from it. These rules have meant there is a default assumption that commissioners should use competition to arrange healthcare services. Instead Clause 68 will allow for the production of a replacement set of regulations (the Provider Selection Regime that NHS England has been consulting on).

3. The new regime should make it easier for commissioners to continue with existing service provision (which remains largely within the NHS) and would allow decision-makers to award contracts to NHS providers without the need to subject services to unnecessary and wasteful competition. UNISON also welcomes the use of "service sustainability and social value" as new criteria to be included in the decision-making process.

4. The new regime could go further, however, and UNISON would support any amendments to make clear that the NHS should be the default provider of services when existing contracts expire. There is also a concern that these new rules could be abused, given the cronyism witnessed during the Covid-19 pandemic with contracts handed to unaccountable private providers without the necessary transparency or scrutiny. The governance arrangements suggested in Clause 68, 12ZB (3) will therefore need to be sufficiently robust to guard against this process being repeated.

5. Although not a part of the Bill itself, the related development of provider collaboratives shows the need for MPs to remain alive to the continuing threat from privatisation, with recent guidance encouraging private providers to join the new collaboratives.

New NHS trusts

6. UNISON supports the provisions to return to the Secretary of State the ability to establish new NHS trusts (Clause 39 would overturn the 2012 Act’s intention to abolish NHS trusts). The plan for this to be used by ICBs as a way of setting up new integrated provider bodies should be a way of ensuring that such organisations reside within the NHS rather than the private sector being used.

7. UNISON would support amendments to extend the potential reach of this provision so that it could be used to ensure that shared services operations or hubs for other joined-up work could also be delivered from within the public sector.

Integrated Care Systems

8. The decision to establish ICSs on a statutory basis should at least ensure greater legislative clarity about which parts of local health systems are responsible for delivering patient care. The use of Sustainability and Transformation Partnerships, which have no place in law, has often left patient groups, campaigners and unions unable to make their voices heard in the local NHS.

9. However, many questions remain about how ICSs will operate in practice. For example, the suggestions in the recent ICS Design Framework that ICSs must hold their meetings in public and publish minutes must be carried through, and it should be made clear that ICSs are subject to the Freedom of Information Act (FOIA) 2000. UNISON therefore supports amendments [such as tabled amendment NC7] that would set out clearly the expectation for NHS bodies (including ICBs) to meet in public and to be covered by the FOIA.

10. UNISON remains concerned about the ability of ICPs to bring private sector bodies into their membership, with Clause 20 of the Bill confirming that ICPs may appoint members other than local authority partners to become members. UNISON notes the Secretary of State’s claim at Second Reading that ICBs "will be made up of public sector bodies and those with a social purpose" and "not driven by any private interest", but it is important that such reassurances are hardwired into the legislation itself and, crucially, that this applies to ICPs as well as ICBs. UNISON would therefore support amendments to block private healthcare providers from becoming members of either of the ICS boards.

Workforce

11. By confirming the merger of NHS England, Monitor and the NHS Trust Development Authority (Clauses 26-32), the Bill provides clarity for those staff working at NHS England and NHS Improvement who have endured three years of uncertainty about the future of their employment.

12. Clause 33 adds a new duty for the Secretary of State to report on the workforce needs of the health service every five years. UNISON agrees with the recommendation of the Health and Social Care Committee that, in order for this to have any real impact on workforce planning, the duty should be considerably strengthened by requiring the publication of independent annual reports on workforce shortages and future staffing requirements, covering social care as well as the NHS. UNISON therefore supports amendments [such as tabled amendment 2] to make such workforce reporting an annual requirement.

13. Schedule 2 of the Bill states that ICBs may determine the pay and conditions of its employees. An Employment Commitment for staff (below board level) has been produced which states that staff affected by legislative changes "will receive an employment commitment to continuity of terms and conditions (even if not required by law) to enable all affected colleagues to be treated in a similar way despite a variety of contractual relationships." UNISON notes the clarification from the Minister at Second Reading that "it’s not the intention that ICBs depart from Agenda for Change". To solidify such reassurances, UNISON would support amendments to ensure that ICBs will apply the relevant collective agreements for staff pay, conditions and pensions, and be responsible for ensuring that these are applied within the wider system. In addition, further reassurances should be sought that nothing in the Bill will compromise the assurances already given in the Employment Commitment, the terms of which should endure beyond the point of staff transfer. 

14. Recently published guidance lists 10 "outcome-based people functions" that ICSs will be expected to deliver from April 2022. To add certainty for the workforce that ICSs are clearly responsible for such functions, if would be useful for these responsibilities to feature in the primary legislation itself. UNISON would support amendments to add new clauses to the Bill outlining the workforce responsibilities of ICSs. In addition, the guidance suggests that the responsibility for engaging with trade unions will rest with the regional teams of NHS England / Improvement rather than with ICBs, which runs the risk of depriving unions of access to strategic decision-making in the new NHS. Reassurances are needed that the new system will not undermine existing provider responsibilities regarding engagement with trade unions, and UNISON would support amendments to ensure that where ICBs take on delivery responsibilities with an impact on people working in the system, they must also be responsible for engaging with the recognised trade unions.

Secretary of State powers

15. UNISON welcomes the fact that the Independent Reconfiguration Panel will no longer be abolished, as was suggested by the Integration and Innovation white paper that preceded this Bill. However, it is important that the ability of local authorities to refer controversial proposals to the Secretary of State is not lost. UNISON is concerned about the new powers being granted to the Secretary of State with respect to the NHS arm’s length bodies. Clause 87 states that decisions to either modify the functions of an ALB or to abolish it entirely could be based on reasons of "efficiency" or "economy". Decisions on the future of important NHS agencies should not stem from a cost-cutting rationale, so these new powers should either be dropped or should require greater scrutiny than the proposed use of secondary legislation would permit.

16. A wider point is that the Bill’s more general return of powers to the Secretary of State is not matched by the return of those duties removed by the 2012 Act. UNISON would support moves to amend Clause 1 of the 2012 Act by returning to the wording of the 2006 NHS Act in which the Secretary of State "must provide or secure the provision of services" for a comprehensive health service. The government has continually claimed that the latest Bill will improve accountability and such a move would clarify that the Secretary of State remains unambiguously responsible for delivering a comprehensive NHS.

Social care and other provisions

17. For a Bill that claims to cover "Health and Care" it is remarkably light on social care, with two clauses squeezed into the "miscellaneous" Part 5 of the Bill. The lack of vastly improved funding and meaningful reform for social care remains a massive problem which not only affects those working in and receiving social care, but also places a major question mark against the government’s claims that the Bill will bring about greater integration between health and social care. It is impossible to expect integration to be a success when one half of the partnership continues to operate in crisis mode, without even a route map to a more sustainable future.

18. UNISON has long called for the Care Quality Commission’s remit to be widened to cover the commissioning of social care as well as its provision, so Clause 121 that would do this is welcome. MPs should seek clarity from the government that such a move would be accompanied by increased funding for councils and by ensuring that the CQC has the capacity to carry this out.

19. UNISON has responded separately to the recent Regulating Healthcare Professionals consultation and is concerned by Clause 123 of the Bill that would enable the abolition of professional regulatory bodies as well as the removal of professions from regulation, which is bound to stoke fears in the workforce about deregulation.

20. UNISON supports the intention in the Bill to raise the standard of hospital food (Clause 126), though extra funding will also be needed to achieve this.

Other considerations

21. There are other areas that should be added to the Bill. For instance, the 2012 Act permitted foundation trusts to earn up to half of their income from private patients, potentially pushing NHS patients further back in the lengthening queue for treatment. UNISON would therefore support amendments to revert to the pre-2012 position on private patient income.

22. As with all legislation, the measures in the Bill will not succeed unless they are accompanied by sufficient levels of extra funding for the NHS, which has gone through a period of unprecedented funding restrictions and is now dealing with the fall-out from the Covid-19 pandemic and record waiting lists. UNISON is concerned that the new system, with its emphasis on "place", must not be used as a way of devolving blame to ICSs when the funding squeeze bites – in the way that local authorities continue to absorb the blame for cuts due to inadequate central funding.

Submission produced by the UNISON Policy Unit

September 2021