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Concern about the inclusion of Clause 4 continues to lead to some uncertainty, confusion and concern about how competition would be applied in the new system. Phase 2 of the Future Forum recommended that the Government clarify the rules on choice, competition and integration. The concern is that if the restraint on autonomy is not as tight as it possibly ought to be, services could fragment. The Government need to clarify that integration will trump competition. I ask the Minister to clarify that the national Commissioning Board will be prepared to intervene if clinicians feel that the type of competition that is being proposed could fragment services. We have heard quite a lot about commissioning along whole-care pathways, such as musculoskeletal services and mental health services, and in whole-function areas, such as community services. There is concern that where this has happened in the east of England with musculoskeletal and respiratory pathways, there is a sense that they should have been put out to tender more than they have been. There is concern that there are times when whole-care pathways should not be subject to competition. The difficulty with the clause is that it leaves in doubt how much integrated whole-care pathways, which may not leave complete autonomy to different parts of the system, will trump competition between different parts of the system.
Lord Warner: My Lords, I had not intended to intervene in this group of amendments, but I want to make a couple of points and leave a question with the Minister. I have always been in the camp that feels that
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There is genuine concern that there might be a really rogue clinical commissioning group, but listening to the noble Baroness, Lady Finlay, has revived my concern that somewhere along the line, if we are not very careful and are too controlling, we will stop the initiatives that we want from commissioners as the NHS faces considerable challenges. As the House knows, I do not have the same fear that other Members of your Lordships' House have about third-sector or independent-sector providers, so I would not want anything in the peace that we see breaking out here to inhibit creative clinical commissioning groups setting off on new paths for new types of services simply because major people in the NHS have not woken up to the need for significant change. I hope that the Minister can reassure me that, in accepting this more nuanced version of Clause 4 on autonomy, we are not really inhibiting the creativity of clinical commissioning groups to bring in new players, even if it may seem a rather radical idea when they start to do it.
Finally, as the Minister knows, I have a mild obsession with the whole issue of a pre-failure provision in this legislation, which we will come to later. One of my continuing concerns is that we do not want to end up with a situation where we are restricting the ability of the National Commissioning Board to begin to intervene-to tackle failure at the local level-simply because autonomy requires people to flounder along as long as they like on the grounds that it is all about localism. I hope the nuanced version of Clause 4 that we are getting is still accepted as something that would enable the National Commissioning Board to intervene when there was a total failure by providers and commissioners at the local level to tackle the problems of clinical and financial unsustainability.
Lord Harris of Haringey: My Lords, every time I look at Clause 4-[Laughter.] I cannot understand what my noble friends find so amusing, but every time I look at this particular clause-if that makes it easier for them-and particularly listening to the remarks of the noble Lord, Lord Marks of Henley-on-Thames, I have been confused as to what problem the Government think they are solving by the clauses on autonomy.
There is apparently a concern about micromanagement. There is a desire to have local innovation, flexibility and local responsiveness. What is it about the current arrangements in the NHS that necessarily prevents local innovation, flexibility and local responsiveness? Why are we having these discussions? If there is a concern from the Government that they are micromanaging, they have a solution-they stop micromanaging. Again, what are we trying to do here?
or whatever form of words you choose to have-this principle of autonomy, you are setting up an automatic
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autonomy and the priorities of the fundamental role of the NHS. This is a balance that has to be weighed. He talked about this line of accountability that will exist between the NHS Commissioning Board and the CCGs-these tentacles that the NHS Commissioning Board will put throughout the NHS. They will be unaccountable and anonymous, and individuals will be operating at regional or at local level.
There will be an army of people operating as the tentacles of the NHS Commissioning Board. They will be informing the Secretary of State so that he can exercise his judgments about the balance between autonomy and meeting the principles of the NHS. I wonder whether the Secretary of State is creating the most extraordinary bureaucratic monster to solve a problem that could be easily solved simply by resisting his tendency to micromanage.
Baroness Jolly: My Lords, I support the government amendments in this group, which are also in the name of my noble friend Lord Marks. They represent the last in a suite of 10 amendments which came out of the process so eloquently described by many noble Lords in earlier debates today, and which take us from the Secretary of State right through the board to CCGs, accountability and micromanagement, tentacles and all.
Like everyone else I should like to state my thanks, and on my Benches there are two people to whom I owe particular thanks. My noble friends Lady Williams and Lord Marks worked very hard from last March to make this happen. In association with many others, including my noble and learned friend Lord Mackay of Clashfern and the noble Lord, Lord Hennessy, who is no longer in his place, they worked extremely hard at getting these amendments together. I hope that the noble Lord feels comfortable and confident about the expression he used in Committee about the DNA of NHS Bills, and that he feels that that DNA is now weaving through this suite of amendments-from the 1940s to the 21st century. The noble Baroness, Lady Jay of Paddington, and the Constitution Committee played such a vital role, and my noble friend the Minister smoothed the way. As I say, however, I thank in particular my noble friends Lady Williams and Lord Marks.
Baroness Thornton: My Lords, when we were having our negotiations on this part-on which I was very happy to take part, even if I was regarded on some issues more as grit in the oyster than as co-operative help-they were about these issues, including autonomy. I have not changed my view. I shall speak to Amendments 10, 36 and 52.
We have no problem with the concept of autonomy. In principle our position is that autonomy has to be earned, and that it should be able to be taken away as well. That formed the principle and the basis on which the foundation trusts were established. However, we part company with the Government on their view of autonomy, and we are not completely convinced by the point made by the noble Lord, Lord Marks of Henley-on-Thames. On first sight of the Bill it seemed that autonomy was to be presumed and that each part of the service would be subject to less interference from the other parts in a way which could be detrimental. There would therefore be less performance management, and giving various bodies more powers with less need to sign off an agreement could mean that there would be less co-operation. Bodies acting in their own interests via a market process will mean that the motivation could be something that does not have the NHS and patients at its heart, and that there is less planning and system management, which sometimes actually is required. That is how you deal with things like postcode lotteries. You have to collect the information, compare it between different parts of the country experiencing different levels of deprivation, and then you have to take decisions which are about planning how to use your resources to ensure that people are not disadvantaged. So there are some very good reasons why planning and systems need to be in place.
The original briefing on the Bill stated that CCGs would not have PCTs or SHAs above them to performance manage them and that the commissioning bodies were not meant to performance manage but only to step in if there was a danger of failure. Again, that was the original briefing. It is not surprising that when we first discussed this in Committee there was general agreement across the House that the Bill would be better off without Clause 4 and what was then Clause 10 but is now Clause 12.
Since then the Constitution Committee has done what I think is really rather a good job. Although I was not deliriously happy about it, I was prepared to live with the draft produced by the committee. However, I do have problems with the draft that the noble Lord, Lord Marks, and the Minister have brought to the House. The provisions are not strong enough and some of the dangers that we originally expressed about problems with the autonomy clauses still exist. Furthermore, I take very much to heart the questions that both of my noble friends have raised. From different points of view they have asked pertinent questions and shown up the problems with the autonomy clauses. That is why, certainly in the process of our negotiations on Clause 4, I reserved my position to come to the House and explore whether what we actually wanted to do was delete it completely at this stage. On Clause 12, for the sake of consistency we feel that it should also be deleted. However, I have to say
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I am not any more convinced as a result of this debate that our original position is not the right one-that if we cannot have the Constitution Committee's version of Clause 4, we should delete the whole clause. Obviously I will listen to the Minister's summing up of the debate, but at the moment I remain convinced that our position is indeed the correct one.
Earl Howe: My Lords, the noble Baroness, Lady Thornton, has spoken to Amendments 10 and 52, which, as she has said, would remove altogether the autonomy duties on the Secretary of State and the board. The noble Lord, Lord Harris, asked me what the problem is that the Bill is trying to solve in this regard. The duty is intended to promote a culture of fostering local autonomy rather than to outlaw specific practices; but without a focus on autonomy, it is possible that the mandate from the Secretary of State to the board or the framework document from the board to CCGs could impose disproportionately burdensome requirements on the system. The Government believe that local operational autonomy is essential to enable the health service to improve the outcomes of care for patients, provided that autonomy is within the framework of clear ministerial accountability.
The noble Baroness will be aware, because I have said it before, that we are aiming to free those closest to services to take decisions that are right for patients, free from central micromanagement by either the Department of Health or the NHS Commissioning Board. The amended duties, with the caveat that the interests of the health service take priority, achieve the right balance between autonomy and accountability. Without the clause, a future Secretary of State could choose to ignore one of the fundamental principles of the Bill, which is that those closest to patients are best placed to take clinical decisions. Without the clause, a future Secretary of State would be free to use his extensive powers to micromanage the NHS. The autonomy duty is a necessary part of the Bill, placing a duty on the Secretary of State to consider the expertise of those in the health service while recognising that there will be circumstances-
Lord Harris of Haringey: My Lords, the noble Earl seems to be saying that you cannot trust your own Secretary of State not to micromanage unless they are effectively forbidden from doing so. We have all talked of the Secretary of State's accountability to Parliament. Surely the principle is that an accountable Secretary of State will be under enormous pressure from Parliament not to micromanage. If it is such a central issue of policy, Secretaries of State should simply be told not to do it, rather than requiring an Act of Parliament.
Earl Howe: I challenge the noble Lord to think of one Secretary of State, with the distinguished exception of my right honourable friend Mr Lansley, who has not succumbed to the temptation of micromanaging the NHS. No Secretary of State has been able to resist
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Baroness Thornton: I cannot resist saying that the noble Earl's right honourable friend Mr Lansley has dabbled and intervened on at least 12 occasions since the Bill started. He is on the record as saying on one of those occasions that certain managers should be sacked. Is the noble Earl saying that that will cease when this Bill is on the statute book?
Earl Howe: I am saying that the Secretary of State will not have the ability to micromanage the health service as he does at the moment. Whether the examples cited by the noble Baroness constitute micromanagement, if my right honourable friend is just expressing a view, I rather question.
The autonomy duty is a necessary part of the Bill because it places a duty on the Secretary of State to consider the expertise of those in the health service while recognising that there will be circumstances in which they must be able to step in to protect the interests of health service patients. That is the balance that we are trying to strike.
The noble Baroness, Lady Finlay, asked whether the autonomy duty would allow a clinical commissioning group to justify not commissioning the full range of services. The autonomy duty does not apply to CCGs; it is a requirement on the board and the Secretary of State. If a CCG chooses not to commission services and the board considers that this is not consistent with the interests of the health service, the board can intervene to direct a CCG. If the board fails to intervene when necessary, the Secretary of State has power to intervene. Finally, the Secretary of State can set out services which CCGs must commission, and he can do that in the standing rules if he considers it necessary. The CCG's key duty is to arrange services as it considers necessary to meet all reasonable requirements of the population that it is responsible for, and the amendments do not change that in the slightest.
It might be helpful to say a little more about Amendment 34. I rather skirted over it in my introductory remarks, although my noble friend Lord Marks spoke to it very eloquently. We have tabled Amendment 34 to make clear the link between what CCGs do and what the Secretary of State does in the exercise of his functions. CCGs will be required to act consistently with the discharge by the Secretary of State of his duty under Section 1(1) of the National Health Service Act when exercising their duty to commission services under Section 3. Our amendment goes even further by requiring CCGs to act consistently with two additional things: first, the discharge by the board of its duty to promote a comprehensive health service; and, secondly, the objectives and requirements of the Secretary of State's mandate to the board. This addresses concerns raised by several noble Lords, including my noble
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The amendment does not mean that it is for an individual clinical commissioning group to determine how best to promote the comprehensive health service and then act consistently with that view. On the contrary, the Secretary of State remains responsible for determining how best to discharge his duty to promote-in part through the mandate to the board but also through the exercise of his other functions. The clinical commissioning group must then act consistently with how the Secretary of State performs that duty. When making decisions about the commissioning of services-for example, when deciding whether to withdraw that service-a clinical commissioning group would have to bear the Secretary of State's duty in mind and act consistently with how he is performing that duty. To take a practical example, it would not be consistent for a clinical commissioning group to withdraw a service if the Secretary of State had indicated that the service was a vital part of the NHS that should be available to all patients throughout England.
The noble Baroness suggested that the duty of autonomy threatens care pathways. I simply cannot agree with her. As I have set out extensively on previous occasions, both integration and competition are tools at the disposal of commissioners to deliver high-quality care to patients. The autonomy duty would not alter that in the slightest.
The noble Lord, Lord Warner, asked whether what we are doing here would somehow inhibit CCGs from bringing in new players. No: where commissioners believe that new providers would serve the interests of patients, they will have the ability to bring in such new providers. Nor does it interfere in the slightest with the ability of the board to support CCGs in the event of distress.
I hope I have covered the questions that have been asked. I thank noble Lords for their valuable contribution to this debate. Once again, I thank the noble Baroness, Lady Jay, for her good offices in bringing us to this point. I hope that my remarks and the amendments tabled will reassure noble Lords that the interests of the health service are and always will be at the heart of the Bill.
Baroness Jay of Paddington: The noble Lord may be surprised to hear me ask this question because, as he kindly said, I have been very determined that the provisions on accountability and parliamentary responsibility et cetera should be strengthened in the Bill. However, I listened to what my noble friend Lord Harris said about what he described as the "increasing tentacles" of these links between the various providers and the Secretary of State. Is the Minister not becoming concerned-as I would in his position-that all this new accountability and these links undermine the basic policy positions of the Bill? That is why, for example, my noble friend Lady Thornton suggested that it would be cleaner-if that is the word-to remove the whole of Clause 4 from the Bill. The
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Earl Howe: I do not share that view at all. I do not think that the autonomy and accountability arrangements are as complex as the noble Baroness seems to suggest. Autonomy and accountability are two sides of the same coin; one confers autonomy in exchange for accountability. That is the model that we have adopted and the one that I would hope that Parliament would wish us to adopt, given that substantial sums of public money will be at the disposal of commissioners throughout the NHS. I therefore do not see that the metaphor of tentacles employed by the noble Lord, Lord Harris, is actually very appropriate. It implies that there is an organisation holding those in the health service in a grip. That will not be the case. The role of the board is to support local commissioners; it is to be there as a resource to promote guidance, supported by the quality standards that we were debating earlier. It is not-I repeat not-a replica of the kind of line management that the NHS has seen to date.
"( ) If, in the case of any exercise of functions, the Secretary of State considers that there is a conflict between the matters mentioned in subsection (1) and the discharge by the Secretary of State of the duties under section 1, the Secretary of State must give priority to the duties under that section.""
Earl Howe: My Lords, we come to an issue that exercised us on more than one occasion in Committee-the issue of health-related research and the use of research evidence in the health service. My noble friend Lord Willis and others urged me to look again at the Bill's drafting, having expressed a concern that there was a need to strengthen the duties on the Secretary of State, the NHS Commissioning Board and CCGs to promote research, and the use in the health service of evidence obtained from research when exercising their functions.
Government Amendments 11, 60 and 103 are a response to that concern, and I hope that they will be welcome. The Government are absolutely committed to promoting research throughout the health service. By tightening the wording around the duties, we believe that the amendments send a powerful signal of that commitment. I beg to move.
Lord Willis of Knaresborough: My Lords, it is a very pleasant duty to know that amendments proposed in Committee have been accepted by the Government in their totality. I thank the Minister for doing that. Amendment 11 removes from the Secretary of State the idea of "having regard to the need to", and gives a clear duty to promote research-and that is the case in Amendment 60, with commissioning boards, and in Amendment 103, with the local commissioning groups.
The broader research community-from the Wellcome Trust; the Academy of Medical Sciences; and members of the organisation that I chair and declare an interest in, the Association of Medical Research Charities-is incredibly grateful to the Minister for persuading his colleague, the Secretary of State, to accept far stronger policy on the duty to research. I also put on record my thanks to noble Lords on all sides of the House, including Cross-Benchers and Front-Benchers, for supporting this. It is very rare that you get such an area, which will clearly make a fundamental difference to patients, bringing the latest research to the bedside as quickly as possible-and to get the whole House to support that.
The result of this, if we make it work, will be the only research-led health service in the world. That is an incredible achievement in your Lordships' House and in many ways surpasses some of the debates that we have had about other areas, which frankly will not make a great deal of difference. I include the debate on Clause 4, which we have just had. I know that Members on the Labour Benches like debating Clause 4; it gives them a feeling of déjà vu. However, in reality, for us as a nation to say that we have a research-led health service, where we can bring our huge clinical research base very quickly to patients, gives us an opportunity not only to deliver wonderful healthcare but to use that as an economic generator right across the world, and to bring high-quality healthcare to people who desperately need it. In fact, they need it a great deal more than we do.
In order for that to work and for these to be more than simply words in a Bill or rhetoric in this House, there have to be mechanisms to ensure that the duty which we have now agreed for the Secretary of State-or which I hope we will agree-concerned with the commissioning board and the commissioning groups, is actually brought to bear. There is nothing left in the Bill which gives me the comfort of saying that is going to happen.
We asked in Committee whether the commissioning board, and indeed the commissioning groups, should have to include in their commissioning plans what activity is taking place in research. If we get the health research authority up and running-I commend the Minister for all that he has done in terms of the special health authority-and if we start to get the 70-day permissions for clinical trials in, we will have a Rolls-Royce system, if I may use that analogy, for bringing research programmes right through into our hospitals for our patient development. However, unless we are able to have that built into the commissioning plans, and unless the commissioning board and the Secretary of State drive that-and this House and another place hold him accountable for that duty-quite frankly, it will be a hollow gesture.
We also sought in Committee a requirement to report on that activity. How telling it would be if patients asked the commissioning groups or their local GP, "What is the activity in the cause that I have?"? We had that wonderful debate earlier on prostate cancer. That is the way in which we will get research developments brought into the clinics and into GPs: by patients being able to query what is happening in research. In thanking my noble friend the Minister, I ask him whether, in responding to this short debate, he will outline to the House very clearly how we are going to make this work. How will we make that duty to promote research into having an NHS that is world-class in terms of its research? How will it work?
Lord Warner: My Lords, I intervene briefly to echo everything that the noble Lord, Lord Willis, has said. We should not rest on our laurels as regards research. I do not want to go over the ground of micromanagement, but the NHS is very quick indeed to forget its responsibilities on research-and I say this as a Minister who was responsible for NHS research and development under the previous Government. We do not want to go back over the micromanagement debate, but the mandate is a critical issue if the NHS is really to keep research at the forefront of its thinking.
That is because at local level, too often on the provider side of the NHS research is forgotten. It is a Cinderella service which comes second to service delivery, and we end up seeing that people at senior levels and at local level absolve their responsibilities in this area. Nothing is a better example of that than the way in which local ethics committees and the people around them have inhibited the advance and the speedy development of research. I do not think that the Secretary of State can absolve himself of these responsibilities here with just this duty. Year in, year out, he will have to use the standing rules and the mandate to make sure that the NHS's nose is kept to the research grindstone in the very way that the noble Lord, Lord Willis, has said. I hope that the Minister will be able to convey some of that back in the department as well as on the Floor of the House.
Lord Patel: My Lords, my name was on many of the amendments of the noble Lord, Lord Willis of Knaresborough, in Committee about promoting research. As someone who has been involved in or trying to do clinical research for many years-I declare an interest as a member of the council of the Medical Research Council-I commend the Government and welcome the amendments. They open up the possibility for commissioning groups to promote research in many ways, such as promoting clinical trials and encouraging the development of tissue banks, proper bioinformatics and proper audit and record-keeping. That will open up the field of stem cell therapy, bioinformatics, regenerative medicine and genomics, which will be very good for the NHS.
Baroness Morgan of Drefelin: My Lords, I, too, put my name to the amendments in Committee that have helped to precipitate this very welcome government
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Baroness Finlay of Llandaff: My Lords, I would also like to formally record an enormous welcome to these changes to the Bill. What has been said in particular by the noble Lords, Lord Willis and Lord Warner, is very pertinent regarding the need to keep questioning. The one thing now that can happen is that those who are actively involved in research can actually question if they get blocked, in a way that they could not before. I think that they will be very bright and questioning people who will make it known if they are not able to do the research that they see needs to be done for the improvement of clinical services.
Indeed, if we can speed up the processes, perhaps we can create an environment in which all patients and relatives understand that a research-rich environment is one that drives up standards of care, and therefore that they are not being experimented on but are being invited to participate when there is equipoise in the highest standards of monitoring that they could possibly have. The governance around research processes in this country is potentially second to none. We may then regain some of those external trials that up until now have, sadly, been bleeding from our shores. The amendments are incredibly important and their universal welcome is very appropriate. The Minister is to be personally congratulated.
Lord Hunt of Kings Heath: My Lords, from the opposition Benches we too welcome the amendments, which very much reflect the debate that we had in Committee on the importance of research. The Chief Medical Officer has paid a visit to Birmingham over the past two days; he gave a lecture at Birmingham University and visited my own trust to discuss research and the role of the NHS in it. My noble friend Lord Warner has put his finger on it: the question to the Minister is how we make sure that the NHS makes a sufficient contribution in future to the development and support of research. The Minister will know that the Chief Medical Officer is a passionate advocate of research and excellence in the NHS, and that is to be warmly welcomed.
There are some issues that need to be tackled. We have already heard about the issue of getting approval for clinical trials. We still have the problem, which has been with us for many years now, of local committees taking far too long and repeating work by other committees. I understand that there are some issues around the fact that, because foundation trusts are separate legal entities, they have to go through the process themselves, but if they join a clinical academic
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There is no question that the more we do in research, the better the outcomes not only for patients but for the UK's reputation and economic well-being. Healthcare research is surely an area to which we need to give great priority. The noble Earl, Lord Howe, is of course responsible and we are very glad that he is leading this work. However, there is no doubt that, welcome though these amendments are, we should be given some assurance that the Government will now take them forward into the new situation with enthusiasm.
Earl Howe: My Lords, I begin by saying how much I agree with the remarks of the noble Lord, Lord Hunt. There are two very good reasons why research needs to be promoted in the NHS. The first is that it is for the good of patients. The other is that it is potentially for the good of UK plc. If we can attract investment in translational and clinical research to this country, it will be a major advance. The sad truth is that in recent years the UK has been slipping back in the international league table as a location for clinical research. The Government are determined to reverse that trend, as were the previous Government. We are trying our best to build on the foundations that the previous Government set.
Noble Lords have asked me to explain how the Secretary of State's duty to promote research will work in practice. I shall try to do so in a few words. The Secretary of State will use the mandate to set priorities for the health service, based on his legal duties. One of those duties is to promote research within the health service, which is shared by the board and CCGs. What are the tools at the Secretary of State's disposal? The National Institute for Health Research-the NIHR-which is headed by Professor Dame Sally Davies, provides transparent, competitive funding to support clinical and applied health research, the training and development of health researchers, systems to support research and the NHS infrastructure for research. The NIHR will continue to be part of the Department of Health. Its budget of £1 billion is held centrally by the department. The Chief Medical Officer will remain responsible for the NIHR and its budget.
The second main route that the Secretary of State uses, and will continue to use, to support research, is through the NHS. Since the NHS was established, its patient care budget has funded the patient care costs of patients who are taking part in research in the NHS, as set out in existing guidance. In the future, the NHS Commissioning Board and clinical commissioning groups will ensure that these costs continue to be met through these arrangements. The research costs of these studies are paid by the Government and charity research funders such as the Medical Research Council, the NIHR, Cancer Research UK and the Wellcome Trust. The NHS benefits greatly from the evidence provided by this research.
Let us not forget, too, that the Secretary of State will be held to account for what he does. He must report annually to Parliament on the performance of
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That brings us to the duties placed on the board. In the document we published, Developing Clinical Commissioning Groups: TowardsAuthorisation, we set out the early thinking on the authorisation process. The document highlights that as part of the process CCGs will need to demonstrate how they will exercise important functions, such as the duty to promote research, and the NHS Commissioning Board will seek consistency in the way in which CCGs exercise these duties. Furthermore, a CCG's commissioning plan, and its annual report, as well as the board's annual assessment of the group's performance, will cover the exercise of all the CCG's functions, including the duty to promote research.
I hope that that has given noble Lords a clear outline of how this is all going to work. We regard these duties as extremely important. These amendments are extremely important, as my noble friend said. I am in no doubt that both the health service and its patients will be better off as a result of them.
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