Cities and Local Government Devolution [Lords] Bill
(Limited Text - Ministerial Extracts only)
Read Full debate15:23 - divided: - Ayes: 213 / Noes: 311 - Question accordingly negatived.
15:37 - divided: - Ayes: 301 / Noes: 220 - Question accordingly agreed to.
18:54 - The Committee divided: - Ayes: 203 / Noes: 311 - Question accordingly negatived.
Mr Nuttall
With the authority of my hon. Friend the Member for Altrincham and Sale West (Mr Brady), and having listened carefully to the Minister’s comments, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5
Functions
Amendments made: 5, page 4, line 26, at end insert “, or
(c) so far as authorised by an order made by the Secretary of State—
(i) for a person appointed as the deputy PCC mayor by virtue of an order under paragraph 3(1) of Schedule 2, or
(ii) for a committee of the combined authority, consisting of members appointed by the mayor (whether or not members of the authority),
to exercise any such function.
‘( ) An order under subsection (3)(c)(ii) may include provision—
(a) about the membership of the committee;
(b) about the member of the committee who is to be its chair;
(c) about the appointment of members;
(d) about the voting powers of members (including provision for different weight to be given to the vote of different descriptions of member);
(e) about information held by the combined authority that must, or must not, be disclosed to the committee for purposes connected to the exercise of the committee’s functions;
(f) applying (with or without modifications) sections 15 to 17 of, and Schedule 1 to, the Local Government and Housing Act 1989 (political balance on local authority committees etc).”
This amendment makes provision for a mayor to arrange for the person appointed as the deputy PCC mayor or a committee of the combined authority to exercise a general function which is exercisable by the mayor, if authorised to do so by an order made by the Secretary of State.
Amendment 6, page 4, line 39, leave out paragraph (b) and insert—
“(b) in accordance with arrangements made by virtue of this section or section 107DA.”
This amendment provides for a general function exercisable by the mayor for the area of a combined authority to be taken to be a function exercisable by a committee or by the deputy PCC mayor, where arrangements have been made under provision inserted by amendment 5 or new section 107DA, inserted by amendment 8.
Amendment 7, page 5, line 3, at end insert—
“() provide that functions that the mayoral combined authority discharges in accordance with
arrangements under section 101(1)(b) of the Local Government Act 1972 (discharge of local
authority functions by another authority) are to be treated as general functions exercisable by
the mayor (so far as authorised by the arrangements).”
This amendment enables the Secretary of State to provide by order that functions of a mayoral combined authority discharged in accordance with arrangements under section 101(1)(b) of the Local Government Act 1972 are to be treated as general functions exercisable by the mayor of the authority.
Amendment 8, page 5, line 16, at end insert—
“107DA Joint exercise of general functions
(1) The Secretary of State may by order make provision for, or in connection with, permitting arrangements under section 101(5) of the Local Government Act 1972 to be entered into in relation to general functions of a mayor for the area of a combined authority.
(2) Provision under subsection (1) may include provision—
(a) for the mayor for the area of a combined authority to be a party to the arrangements in place of, or jointly with, the authority;
(b) about the membership of any joint committee;
(c) about the member of the joint committee who is to be its chair;
(d) about the appointment of members to a joint committee;
(e) about the voting powers of members of a joint committee (including provision for different weight to be given to the vote of different descriptions of member).
(3) Provision under subsection (2)(b) to (d) may include provision for the mayor or other persons—
(a) to determine the number of members;
(b) to have the power to appoint members (whether or not members of the combined authority or a local authority that is a party to the arrangements).
(4) Provision under subsection (2)(c) may include provision as to the circumstances in which appointments to a joint committee need not be made in accordance with sections 15 to 17 of, and Schedule 1 to, the Local Government and Housing Act 1989 (political balance on local authority committees etc).
(5) In this section references to a joint committee are to a joint committee falling within section 101(5)(a) of the Local Government Act 1972 that is authorised to discharge, by virtue of an order under this section, general functions of a mayor for the area of a combined authority.”—(James Wharton.)
This amendment enables the Secretary of State to make provision by order enabling the combined authority to enter into arrangements to discharge general functions of the mayoral combined authority jointly with one or more other local authorities or combined authorities.
Clause 5, as amended, ordered to stand part of the Bill.
Schedule 2
Mayors for combined authority areas: police and crime commissioner functions
Amendments made: 23, page 26, line 33, leave out
“police and crime commissioner functions”
and insert
“functions of a police and crime commissioner”
This amendment makes a minor drafting change to paragraph 1(1) of new Schedule 5C to achieve consistency with the language used in new section 107E(1) as inserted by clause 5 of the Bill (to which sub-paragraph (1) cross-refers).
Amendment 24, page 26, line 34, at end insert—
‘( ) A duty under this Schedule to make provision by order is a duty to make such provision in an order made at any time before the first election of a mayor who, by virtue of an order under section 107E(1), is to exercise functions of a police and crime commissioner.”
This amendment clarifies that an order made under new Schedule 5C can be made at any time before the relevant mayor is first elected and makes it plain that a Schedule 5C order can be made subsequently to an order under new section 107E.
Amendment 25, page 30, line 12, at end insert—
‘( ) Subsections (5) and (6) of section 107C, so far as relating to the exercise of PCC functions, are subject to any provision contained in an order under this Schedule.”—(James Wharton.)
This amendment ensures that an order under new Schedule 5C can make provision to prevent a person who is acting in place of a mayor with police and crime commissioner functions from carrying out particular PCC functions such as issuing or varying a police and crime plan, consistent with the current position in respect of actin PCCs.
Schedule 2, as amended, accordingly agreed to.
Clauses 6 and 7 ordered to stand part of the Bill.
Clause 8
Other public authority functions
The Minister for Community and Social Care (Alistair Burt)
I beg to move amendment 32, page 9, line 15, at end insert—
‘( ) See also section 19 of the Cities and Local Government Devolution Act 2015 (devolving health service functions) which contains further limitations.”
This amendment inserts a new subsection into section 105A of the Local Democracy, Economic Development and Construction Act 2009 which alerts the reader to clause 19 of the Bill which contains limitations on the power to make an order under that section.
The Temporary Chair (Mrs Anne Main)
With this it will be convenient to discuss the following:
Government amendments 33 to 38.
Clause 19 stand part.
Government new clause 8.
Government new schedule 1.
Alistair Burt
I think this is the first time that I have served under your chairmanship, Mrs Main, and I am honoured to do so. Thank you for inviting me to speak this afternoon. As a former Member of Parliament for Bury North—a constituent part of the Greater Manchester devolution process—and a former sponsor Minister for the cities of Manchester, Salford, Wigan, Bolton and Blackburn, I am pleased to take part in this debate which has acute relevance to that part of the world.
May I too put on record my sadness at the loss of Michael Meacher? As a friend and colleague in the north-west for many years he performed great service for Oldham, and was a good colleague to his friends on all sides in the north-west. He will be much missed, and I am sure that the Committee sends its condolences to his family and all who mourn him.
Clause 19 contains valuable safeguards that will apply to the local devolution of health functions. It was inserted in the Bill by an amendment tabled by Lord Warner in another place. Amendments 32 to 38 will provide further definition and clarity, without altering the spirit or substance of the clause. Lord Warner has confirmed that he is supportive of these further amendments.
Clause 19 provides that regulations under clause 17, or an order under section 115A of the Local Democracy, Economic Development and Construction Act 2009, must not transfer any of the Secretary of State’s core duties in relation to the health service as set out in the National Health Service Act 2006 and the NHS constitution. It makes it clear that whatever devolution arrangements might be agreed with a particular area, the Secretary of State will remain bound by the key duties placed on him in respect of the health service.
Amendment 38 provides further clarity by listing the duties of the Secretary of State that may not be transferred, in so far as they are capable of such a transfer. First and foremost, section 1 of the 2006 Act provides for the Secretary of State to retain responsibility to Parliament for the provision of the health service in England. Others are overarching duties on quality, reducing health inequalities, research, education and training, and on the NHS constitution. They also include Secretary of State’s role under the Health Act 2009 in revising and publishing the NHS constitution, his role under the 2006 Act in setting strategic direction for the NHS in the mandate to NHS England, and his role in overseeing and reporting to Parliament on the health service generally, and in particular on NHS England’s performance.
In essence, although health service functions are capable of being devolved to local authorities and to groupings of local authorities, the main responsibility and overriding duty of the Secretary of State for the NHS is not affected by these arrangements and he remains accountable for them.
Mr Betts
I apologise, but I shall have to go to chair a meeting about black and minority ethnic coaches and managers in football, another issue that I know will be close to the Minister’s heart.
The Minister may be trying to reassure the Committee, but in some ways he is giving me cause for concern. Devolution deals will, in particular, try to link social care and health in a more real way to the benefit of constituents. My concern is that if every line of accountability goes back to the Secretary of State in Whitehall, it will stop local innovation happening. Will not the line of command back to the centre simply stop things happening?
Alistair Burt
That is a good question and I hope I can reassure the hon. Gentleman. No, the whole process being considered is to give powers to the various authorities to be, as he said, innovative in what they would like to do. They will have the powers and the responsibilities to do that. The reason the concern was expressed in another place was to make sure that in the process it would not be possible for the NHS to transfer its core duties and therefore have local authorities do things that are contrary to the main constituent parts of the NHS, such as on issues relating to quality and so on. The accountability of the Secretary of State therefore remains. The ultimate accountability he or she has standing here at the Dispatch Box remains, but it would not stop the work and the innovation. As I shall go on to say, the regulatory powers of organisations such as the Care Quality Commission, Monitor and others will also remain in place to ensure that none of the national quality standards we expect from the NHS will be deviated from. There will be different ways of doing things, but ultimately the quality standard remains a national quality standard.
Mr Betts
I see what the Minister is trying to achieve, but I just worry about whether it will work like that in practice. Given that we are in very new territory here and that things will be done differently with the delegation of powers to individual authorities as well as to combined authorities, does the Minister agree that it would be a good idea, perhaps two years after the devolution powers have been put in place, to have a thorough review of how they are working and whether there is anything in the Government’s proposals that might actually stop devolution working properly?
Alistair Burt
As the hon. Gentleman knows, we can plan to review things at any stage. For devolution to work, the different models that may be put in place, whether big urban city models or more rural models, must of course pass the test of whether they are doing something qualitatively different and better for people. It will certainly be possible and necessary to review that. I think the concern has been to make sure that national standards are not dropped in the process of innovation. That is why the ultimate duty and responsibility of the Secretary of State remain. That was much discussed in another place. The reason for tabling these amendments is to confirm that, under the overall umbrella of wanting greater innovation, national standards will be preserved and cannot be threatened. That is the idea.
Bob Stewart (Beckenham) (Con)
Would it be fair to say that local authorities rule on these matters, but that the Secretary of State might occasionally reign?
Alistair Burt
We must be clear. The Secretary of State’s overarching duty and responsibility for the NHS will not mean a definitive touch. The whole point of devolution, as indeed the whole point of integration of services between local authorities and the NHS, is to give people the powers to make their decisions locally. There will be much discussion between different constituent parts. In that, the Secretary of State will have no part. It will not be possible, however, for a devolved authority to neglect or remove a core part of the NHS and say, “Oh well, we’ve got the power to do so.” That is the reason for the safeguard to which the amendments and new clause 19 refer.
John Mann
Is there anything in the Government’s proposal that would impact on a district such as Bassetlaw —the hospital trust crosses the border into south Yorkshire, but the clinical commissioning group money remains entirely within the district—electing to join Sheffield city region, in another region, where other decisions will be needed? Are there any hidden nasties we should be aware of?
Alistair Burt
No, I do not think so. There are neither hidden nor unhidden nasties. Local decisions will still be made, and CCGs will still be monitored for quality, effectiveness and the like. I am just coming on to talk about the regulation.
Clause 19 provides that the regulatory functions of national bodies held in respect of health services will not be available for transfer to a combined or local authority. This makes it clear that local devolution settlements will not devolve the regulatory functions of Monitor, the Care Quality Commission or other health service national regulatory bodies as defined. This means that a transfer order may not change the way in which our national health service regulators operate to protect the interests and safety of patients. Amendment 38 inserts a provision clarifying that a “health service regulatory function” means a regulatory function within the meaning given by section 32 of the Legislative and Regulatory Reform Act 2006, in relation to the health service. Amendment 35 omits the word “supervisory” but clarifies that the supervisory functions of NHS England in relation to CCGs are also expressly protected from transfer.
The safeguards set out in clause 19 would support the Secretary of State in ensuring in a transfer order that where a combined authority or local authority was to exercise transferred health functions, using the Bill’s new powers, that authority could be held to account as to the exercise of its health service functions, just as NHS commissioners are currently held accountable. Amendment 36 amends clause 19 to require that in a transfer of functions to a combined authority or a local authority, provision must be made about standards and duties to be placed on the authority.
Amendment 38 provides further explanation of the national service standards to which the Secretary of State must have regard when making such provision. These include, for example, those in the standing rules set for NHS England and CCGs, recommendations and quality standards published by the National Institute for Health and Care Excellence, and of course the standards set out in the NHS constitution, which sets out pledges and codifies requirements, statutory duties and rights that NHS services in England must, as a minimum, meet. These include national access standards, including waiting times. Amendment 38 also provides definitions for “national information obligations” and “national accountability obligations”.
As amended, clause 19 provides further clarity about the role of the Secretary of State for Health and what will and will not be included in any future transfer order giving local organisations devolved responsibility for health services. This clear statement in legislation, making provision for the protection of the integrity of the NHS, is intended to provide further confidence for future devolution deals. In essence, they will be underpinned by the basic core duties of the NHS, and that cannot be shifted. Amendments 32 to 38 give further definition and clarity to support the valuable principles behind this clause.
New schedule 1, which inserts schedule 3A in the Bill, provides for amendments to the National Health Service Act 2006, and new clause 8 is a clause to introduce that schedule. These amendments concern the making of arrangements with combined or local authorities for the exercise of health commissioning functions under the 2006 Act, including provisions allowing greater flexibility over how partners to such arrangements may work together. This will enable greater integration of health and care services and support local leaders to take collective steps towards better health and care for their local population.
New schedule 1 also makes small amendments to the 2006 Act concerning the provision that may be made in regulations concerning local authorities’ social care information.
Places such as Greater Manchester and Cornwall are calling for the ability to design and deliver better health and care services, and the ability to make decisions at a level that works best for their communities—locally or, where it makes more sense, at a regional or sub-regional level. As we know, devolution deals will be tailored to the needs and circumstances of a local area. The Bill will already allow the Government to make orders to devolve to a combined authority or a local authority a range of powers and functions currently carried out by Whitehall Departments or bodies such as NHS England.
Peter Dowd
I do not think anyone could disagree with the concept of maintaining standards, but when the Minister talks about what NHS England will be allowed or permitted to do, he needs to go further. The concept of subsidiarity is relevant. Powers should be devolved down, subject to standards, or there should be an onus, almost by default, on transferring responsibilities downwards rather than allowing bodies to pick and choose what they think should be devolved.
Alistair Burt
The order by which powers will be devolved will be subject to parliamentary approval. The safeguard is that the Secretary of State will have the power, as Parliament requests and demands, to put limitations on and conditions into that order. The reason there is no template for which powers must go downwards is that each area will probably have something different. The Bill provides a permissive opportunity for NHS powers to be devolved, but the powers to be devolved will depend on what each devolved administration is looking for. This part of the Bill sets out the ability of the Secretary of State and the NHS to achieve that, and the safeguard applies in respect of national qualities and standards and the regulatory process. The decision on which bits will be devolved down will be made by the Secretary of State and the NHS in consultation with the local areas that want the extra powers. I hope that helps the hon. Gentleman.
Peter Dowd
I would press for further clarity. I understand what the Minister says. The point I am trying to make is that if a local area says, “We think we are best able to provide particular services and responsibilities in a particular way” and NHS England, for example, says that it is not prepared to relinquish those responsibilities, we need a means of mediating that clearly and unambiguously. The assumption should be that the powers will go down to the local area if it wants them—subject to standards.
Alistair Burt
I take the hon. Gentleman’s point. I am not sure, however, that we can be more prescriptive on the face of the Bill. The hon. Gentleman is describing the process by which an area says, “We think that, in addition to the functions already devolved, other things need to be devolved to help local health services work together”, but it is difficult to envisage the circumstances in which NHS England would say, “Well, no you can’t”. At the moment, most are working collectively in any case, so this is a matter for local decision making and agreement between the parties involved. I do not think we can say more than that directly in the Bill at this stage. The whole process of devolution will fall into disrepair if there is continual conflict between an area that says, “Look, we think we can do this”, and a central authority that says, “No, you can’t, there’s no point in that given the process we are going through”. The provision of safeguards is about ensuring that NHS England can be confident of devolving powers, because ultimately the regulatory powers and the safeguards should ensure that patients and constituents are protected by national standards remaining the same. That is how I envisage it working.
John Howell (Henley) (Con)
My right hon. Friend has talked a great deal about the safeguarding of NHS provision. Can he reassure me that the social care element will be protected by the same level of safeguards?
Alistair Burt
Yes, in that the regulatory powers of the CQC and the safeguarding inspection regime will be retained for the social care element that is covered by a devolution deal. Again, the whole point is to give as much flexibility as possible to areas that want to exercise their powers to deliver services differently, with the reassurance that there will no compromise in relation to key standards—not that that would be wished for in a local area, and not that it would be anticipated by any of the devolving powers.
Following discussions with Greater Manchester and other local areas, we are now taking the opportunity to make available further options in legislation for combined authorities and local authorities to work together with clinical commissioning groups and NHS England across a wider area—such as Greater Manchester—to improve the integration of services. Those options will sit alongside the powers provided by the Bill to devolve a range of powers and functions that are currently exercised by Whitehall departments or bodies such as NHS England to a combined authority or a local authority. Crucially, wherever responsibility for NHS functions is delegated or shared in this way, accountability will remain with the original function holder, whether that is NHS England or a CCG. The original NHS function holder will continue to be accountable via the existing mechanisms for oversight, which ultimately go to the Secretary of State, who retains ministerial responsibility to Parliament for the provision of the health service.
Andrew Gwynne
I apologise for the fact that I have only just come into the Chamber for this part of the debate. I have been on Front Bench duty in Westminster Hall.
I am interested in what the Minister is saying about the Secretary of State’s oversight of devolved health in Greater Manchester, which is clarifying one of the issues about which I know a number of Greater Manchester MPs are concerned. May I ask, however, whether any thought has been given to coterminosity? In the case of most of the functions that have been devolved to Greater Manchester, there are coterminous boundaries with the 10 metropolitan boroughs. The NHS is slightly different, in that one of the CCGs—one of my own CCGs, Tameside and Glossop—extends to Derbyshire as well, because Glossop is not part of Greater Manchester.
Alistair Burt
I know the area well, and I know exactly what the hon. Gentleman is referring to. Yes, that is part of the consideration, but it is essentially part of the consideration of the combined authority. Not only will it have to devise the working of its services within the confines of what is commonly known as Greater Manchester, but it will have to recognise that some of the provision of those services is carried out by those with cross-border responsibilities, and work something out with the adjoining areas. Nothing in the Bill speaks to that, because it does not relate to what I am discussing—the control of standards and the like—but the hon. Gentleman is absolutely right. That is part of the process that people will be going through.
Mr Kevan Jones
The Minister has said that the Secretary of State will retain overall control.
Alistair Burt
I have read the report of the debates in the House of Lords on exactly this topic, because there was a lot of confusion. My understanding is that it depends on precisely what the breakdown is. Let us suppose that the breakdown, or failure, is in the way in which services have been put together by the combined authority. This is purely off the top of my head, and does not refer to anything of which I have any current knowledge. Let us suppose that there was a dispute between two constituent areas of Greater Manchester, one of which claimed that there was some inequity between the service that it was receiving and the service being received by the other. It might be claimed, for instance, that the combined authority’s decision was somehow disadvantaging Ramsbottom in favour of Bramhall. In the event of such a dispute, the buck would stop with those who were making the decisions locally, and that is the combined authority. The matter would not go anywhere near the Secretary of State. What the Secretary of State retains responsibility for is the standards and whether or not there has been a breach of NHS duties in relation to anything that falls within his own overall responsibility. So the buck still stops with the constituent authority that is delivering the service. In relation to a CCG that is not performing properly, the buck will stop with the CCG, not the combined authority. If there is a lapse of standards in anything connected with the NHS, ultimately the regulators govern that and the Secretary of State would be responsible. But if it is a decision being taken by those who are responsible for the new combined authority to do with where services go and it is within their remit, it will be a matter for them—the buck will stop with them. The short answer, therefore, is that where ultimately responsibility lies depends on where the breakdown is, but it is clear in relation to each of the services and it does not mean anyone can evade their responsibilities.
Andrew Gwynne
I think my right hon. Friend the Member for Leigh (Andy Burnham) had a better definition of what the Minister is trying to say. He said it is the Secretary of State’s responsibility to set out the “what”, and the “how it is delivered locally” is for local commissioners or the combined authority in the case of Greater Manchester. The “what” remains with the Secretary of State; the “how” is devolved to the local area.
Alistair Burt
I think between the hon. Gentleman’s right hon. Friend, me and the Secretary of State we have probably got where we need to get to in relation to this. I wanted to make clear that there will not be a confusion of who is responsible for what; someone is ultimately responsible for each bit, but who is responsible in each particular case depends on where the breach is.
Jon Trickett
I want to return to the question of coterminosity, which my hon. Friend the Member for Denton and Reddish (Andrew Gwynne) referred to. In west Yorkshire, which is where I am from, the local Pontefract hospital goes across from west Yorkshire as far as York, almost—into Selby. If a combined authority with an elected mayor emerges in west Yorkshire, some of the hospital services for which that person will be responsible will be provided to people who have not had the opportunity to vote for him or her as mayor or for the combined authority. Where does accountability lie? Here is a situation where somebody is responsible for services outwith the area that has elected him.
Alistair Burt
If the mayor was to have responsibility for the services—that is not the proposal for Greater Manchester—the mayor would only have responsibility for the services within the combined area. Anything beyond that would still fall within the remit of those who commissioned services in that area. The decision as to—[Interruption.] That is right: the hospital in that circumstance may well have two bosses because the CCG would be responsible for the whole lot and it would have to come, by agreement, to a decision as to what was being provided within the combined area as well as outside the combined area. So the CCG remains responsible for what it is delivering, but it decides as normal with those to whom it is answerable—in one area it has become a different authority and in another it remains the original one—what services they should provide. The overall security for the quality of what the CCG is providing is maintained by the national regulator, which supervises, and it is ultimately for the Secretary of State to make sure the NHS guidance and duties are not breached, but it is a matter for local decision how this coterminosity is dealt with, because it will occur in more than one area. Certainly, however, I cannot see that legally a CCG outside a combined authority could have any direct line of responsibility to somebody inside the combined authority who is making decisions not about their area. That is how that would work.
Jon Trickett
If there are two adjacent mayoral operations, both taking responsibility for a hospital that is crossing the mayoral boundaries—which is now quite possible it seems to me—is not that a recipe for complex management for the people managing the hospital, and how would those contradictions be resolved?
Alistair Burt
In the first place, they could decide not to devolve at all. Part of the process will involve those in the combined authority and in those authorities next to each other deciding how to deliver the services. There is a choice. This is all voluntary, and if people want to do it they will work out a way. It is not very different from what has driven the authorities in Greater Manchester together in the first place. These are places that work across boundaries, and agreement will have to be reached on the delivery of the services. Constituents in one area could say, “Hold on a minute! Are we going to lose out over this?” They will make their decisions collectively on what they will pool and what they want. That is no different from what will happen in the areas that will be split. If people cannot agree, there will not be an order that could possibly be signed off. This will work only when there is a conviction that people have made the appropriate decisions. That is a matter for local agreement, and that is where all of us, as local politicians, get involved. So unless people are convinced that the processes are right, there will be no point in signing anything off.
Alistair Burt
I thank the hon. Member for Heywood and Middleton (Liz McInnes) for putting the Opposition’s case clearly and providing me with an opportunity to explain why these measures are so important and, I hope, give reassurance. I start by reminding the Committee that this is an enabling Bill, so nothing in it will force anybody to do anything. Ultimately, if local areas want to take the opportunity to apply for devolution, including the devolution of health services, they can do so, but they will not be forced to do so. Control and standards will be exercised by Parliament in securing the deals. Within that wide remit, I will come to the hon. Lady’s questions, but first let me answer a few specific points that have been raised.
The hon. Member for Bristol South (Karin Smyth) and my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter)—I thank him for the work he did in the Department, which I follow—in a way put both sides of the argument. In a sense, the Government cannot decide some of the issues that both my hon. Friend and the hon. Lady raised. My hon. Friend believes that where these opportunities are used for greater integration and for the best, services will be smoother and able to deliver more locally what people want. Of course, as the hon. Lady pointed out, there will be disputes within each individual area about what might be best for it. A devolution deal will make sense only if decisions have been taken locally and agreement has been reached on how to move forward. If not, I cannot imagine the hon. Lady or her area wanting to support them. Central Government cannot make all the decisions that will ultimately be taken by a group of authorities working together. Some of that will have to be decided locally, rather than at the centre. I will talk in a moment about the check that is made before anyone agrees to transfer anything.
Let me make specific reference to specialised services, which are of particular interest to the hon. Member for Bristol South. NHS England may make arrangements with local partners for the commissioning of specialised services. Those arrangements will be subject to NHS England having regard to certain considerations on their appropriateness in the particular commissioning area. They might involve delegation to local partners, or NHS England might decide to work together with its local partners, who must include at least one clinical commissioning group and a combined authority, or at least one local authority. In all cases, the local partners in an arrangement must exercise the function jointly. That will allow local commissioners to shape services to best meet the needs of their local populations and make it easier to integrate specialist services with other health and social care services. However, NHS England will remain accountable for the delivery of specialised services. It will remain bound by its existing duties to promote the NHS constitution on reducing health inequalities and on effectiveness and efficiency, and to exercise its functions with a view to securing continuous improvement in the quality of services, along with its other overarching duties. NHS England has confirmed that it will be part of any arrangements concerning specialised standards, but national service standards that it sets for the provision of these services will continue to be required. Although there is provision in the Bill to devolve certain specialised services, the control, security and safeguards of the NHS remain. However, it will be possible if it is considered the right thing to do.
Karin Smyth
I am grateful for that clarification. My concern then would be who the Minister sees as driving the development and improvement of, particularly, the specialised commissioners. We are talking in fairly transactional terms about who might be contracting or who might be accountable but, as he will appreciate, these services, as well as others, require a long lead-in time and a lot of consideration owing to their very technical and, by definition, specialised nature. Who is driving this forward—the local group, if they so choose, who may not have the expertise, or the Department?
Alistair Burt
NHS England and the Department must retain the overall control of the quality of the specialised services, and that will not be relinquished if there is no sense that they can be handled any better, because otherwise there is no point. The number of specialised services that are devolved might ultimately be very few. Of course, there is only any point in devolving them if they are going to improve, and that must be demonstrated before they are devolved and moved on.
Let me say a little about the wider concern of the hon. Member for Heywood and Middleton that by devolving these powers and running with the grain of greater devolution, we are losing the “national” in the national health service. We are absolutely determined that that will not be the case. The safeguards that are now in the Bill as a result of concerns expressed elsewhere were never going to be lost, but they are now made more explicit to demonstrate that what she worries about cannot happen. It is not the case that an authority will apply for these powers and they will be handed over without no further consideration, because there is the transfer order that Parliament will be involved in.
What are the Government going to think about when people ask to do this? The Government have invited local areas to develop their own proposals. There is no blueprint for the devolution of health and social care. The substance of devolution deals will be determined on a case-by-case basis, with Government agreeing bespoke deals that correspond to the needs and specific context of each area. There are some important preconditions that we might expect to support the development of local devolution deals, including health and social care. These include a clear vision for the benefits to the local area; a history of successful collaboration and partnership working; support and input from local health and social care organisations for the proposals being put forward; a strong commitment to further engagement with local patients and communities as plans develop; upholding the standards set out in national guidance; and continuing to meet statutory requirements and duties, including the NHS constitution and the Government’s mandate to NHS England. Most importantly, the first overarching principle of any agreement is that all areas will remain part of the NHS. This requirement to adhere to the constitution of the NHS and the ultimate safeguard of the Secretary of State’s responsibilities answers the point about a local area getting hold of NHS money and then deciding to build a new leisure centre. It would not be able to do that because it would not be complying with its duties under the NHS. It would fail and the duties and responsibilities would soon be taken away. That is why the safeguard is there.
To deal with the hon. Lady’s concerns about potential confusion, let me say a little more about the role of NHS England under devolved arrangements. NHS England and CCGs would continue to be bound by their duties under the National Health Service Act 2006 even after devolution of functions. For example, NHS England will remain bound by duties to promote the NHS constitution, and to exercise its functions effectively, efficiently and economically and with a view to securing continuous improvement in the quality of services, including in terms of outcomes.
NHS England must exercise its functions having regard to the need to reduce inequalities in relation to both access to health services and outcomes achieved for patients. When NHS England exercises its functions, it must also promote the involvement of patients and their carers and representatives in decisions made about diagnosis, prevention and care and treatment. It must take appropriate advice and act with a view to enabling patients to make choices with respect to aspects of the health service provided to them.
Those safeguards show that the powers simply cannot be devolved to people who want them without any check or balance on how they would exercise them, even if they persuade people locally that signing a blank cheque for help is in any way acceptable. I cannot see local representatives agreeing to that. That is where the control comes in.
How will the Department of Health and NHS England be involved in agreeing the deals? We have been working closely with other Government Departments to respond to proposals. NHS England has developed its own set of assessment criteria, by which it will assess the potential of proposals from a particular local area. It is not an automatic process: if the deal will not work in terms of the quality of healthcare provided, the House will not pass a transfer order because the proposal will not pass the test set by NHS England and the Department of Health.
Will devolution mean that local areas can set their own strategy for NHS capital estates and management? No, we do not envisage any changes to capital financing and asset ownership.
Finally, I want to address a very important issue raised by the hon. Lady. Who will have the final say over the opening and closing of hospitals and other services? This is issue concerns every single one of us in the Chamber. Reconfiguration of NHS services will continue to be a matter for the local NHS. However, proposals for service change must meet the Government’s four tests: support from local GP commissioners; clarity on the clinical evidence base; robust patient and public engagement; and support for patient choice. The same elements of contest available when reconfiguration has been proposed will remain even after devolution, so nothing is taken away.
I hope that has been helpful. Working with the grain of what people want, we all think this is a better idea, but there are safeguards to make sure that people’s worries will not come to fruition.
Amendment 32 agreed to.
Clause 8, as amended, ordered to stand part of the Bill.
Clause 17
Power to transfer etc. public authority functions to certain local authorities
Amendment made: 33, page 17, line 32, at end insert—
‘( ) See also section 19 (devolving health service functions) which contains further limitations.”—(Alistair Burt.)
This amendment inserts a new subsection into clause 17 which alerts the reader to clause 19 which contains limitations on the power to make regulations under that clause.
Clause 17, as amended, ordered to stand part of the Bill.
Clause 18
Section 17: procedure etc.
Amendment made: 15, page 18, line 6, after “make” insert “incidental, supplementary, consequential,”—(Alistair Burt.)
This amendment provides that the power to make regulations under clause 17 of the Bill includes a power to make incidental, supplementary and consequential provision.
Clause 18, as amended, ordered to stand part of the Bill.
Clause 19
Devolving health service functions
Amendments made: 34, page 18, leave out lines 29 to 33 and insert—
‘(1) Regulations under section 17 of this Act or an order under section 105A of the Local Democracy, Economic Development and Construction Act 2009 (transfer of public authority functions to combined authorities) (“the 2009 Act”)—
(a) must not transfer any of the Secretary of State’s core duties in relation to the health service;”
This amendment confines the limitations contained in clause 19 to the exercise of the power to make regulations under clause 17 or an order under section 105A of Local Democracy, Economic Development and Construction Act 2009. Those powers concern the transfer of public authority functions to local or combined authorities. New clause 19(1)(a) prevents those powers being used to transfer any of the Secretary of State’s core duties in relation to the health service (as defined in clause 19(2) which is inserted by Amendment 38).
Amendment 35, page 18, line 34, leave out “or supervisory”
This amendment removes the prohibition in clause 19(b) on the transfer of health service supervisory functions of national bodies by regulations under clause 17 or an order under section 105A of the Local Democracy, Economic Development and Construction Act 2009.
Amendment 36, page 18, line 36, leave out from “must” to first “the” in line 37 and insert
“, if transferring functions relating to the health service to a local authority or a combined authority, make provision about the standards and duties to be placed on that authority having regard to”
This amendment and Amendment 37 replace the limitation in clause 19(c) with a requirement that regulations under clause 17 or an order under section 105A of the Local Democracy, Economic Development and Construction Act 2009 which transfer functions relating to the health service to a local or combined authority must make provision about the standards and duties to be placed on that authority having regard to certain standards and obligations placed on the authority responsible for the functions being transferred.
Amendment 37, page 18, line 38, leave out from “on” to “being” in line 39 and insert
“the authority responsible for the functions”
See the statement for Amendment 36.
Amendment 38, page 18, line 40, at end insert—
‘(2) For the purposes of subsection (1)(a), “the Secretary of State’s core duties in relation to the health service” means the duties of the Secretary of State under—
(a) sections 1 to 1G of the National Health Service Act 2006 (“the NHSA 2006”) (duty to promote comprehensive health service etc.),
(b) sections 6A to 6BB of that Act (duties regarding the reimbursement of costs of services provided in another EEA state),
(c) section 12E of that Act (duty as respects variation in provision of health services),
(d) sections 13A, 13B, 13U and 223B of that Act (duties regarding mandate to, and annual report and funding of, the NHS Commissioning Board),
(e) section 247C of that Act (duty to keep health service functions under review),
(f) section 247D of that Act (duty to publish annual report on performance of the health service in England),
(g) section 258 of that Act (duty regarding the availability of facilities for university clinical teaching and research), and
(h) sections 3 to 6 of the Health Act 2009 (duties in relation to the NHS Constitution and the Handbook to it),
in so far as those duties would (apart from subsection (1)(a)) be transferable by regulations under section17 or an order under section 105A of the 2009 Act.
(3) For the purposes of subsection (1)(b)—
(a) “health service regulatory function” means a function in relation to the health service which is a regulatory function within the meaning given by section 32 of the Legislative and Regulatory Reform Act 2006,
(b) the functions of the National Health Service Commissioning Board under sections 14Z16 to 14Z22 of the NHSA 2006 (assessment of clinical commissioning groups and intervention powers) are to be treated as “health service regulatory functions” in so far as they do not fall within the definition in paragraph (a), and
(c) functions exercisable by a body by virtue of directions given under section 7 of the NHSA 2006 (functions of Special Health Authorities) are not “vested in” that body.
(4) But subsection (1)(b) does not prevent the transfer of functions of the National Health Service Commissioning Board which—
(a) arise from arrangements under section 1H(3)(a) of the NHSA 2006 (provision of services for the purpose of the health service), and
(b) relate to those providing services under those arrangements.
(5) For the purposes of subsection (1)(c), “national service standards” means the standards contained in any of the following—
(a) the NHS Constitution (within the meaning of Chapter 1 of Part 1 of the Health Act 2009);
(b) the standing rules under section 6E of the NHSA 2006 (regulations as to the exercise of functions by the NHS Commissioning Board or clinical commissioning groups);
(c) the terms as to service delivery required by regulations or directions under the NHSA 2006 for contracts or other arrangements for the provision of primary medical services, primary dental services, primary ophthalmic services or pharmaceutical services under Part 4, 5, 6 or 7 of that Act;
(d) the recommendations or guidance of the National Institute for Health and Care Excellence made or given pursuant to regulations under section 237 of the Health and Social Care Act 2012;
(e) the quality standards prepared by that Institute under section 234 of that Act;
(f) the guidance published under section 14Z8 of the NHSA 2006 (guidance on commissioning by the NHS Commissioning Board);
and such standards are “placed on” a body if the body is required to have regard to or comply with them.
(6) For the purposes of subsection (1)(c)—
(a) “national information obligations” means duties regarding the obtaining, retention, use or disclosure of information, and
(b) “national accountability obligations” means duties (for example, those to keep accounts or records, or to provide or publish reports, plans or other information) which enable the management of a body, or the way in which functions are discharged, to be examined, inspected, reviewed or studied.
(7) For the purposes of this section, a function is transferred by regulations under section 17 or by an order under section 105A of the 2009 Act, if—
(a) provision is made under subsection (1)(a) of the section in question for the function to be the function of a local authority or a combined authority, or
(b) provision is made under subsection (1)(b) of that section for a function corresponding to the function to be conferred on a local authority or a combined authority.
(8) Nothing in this section prevents the conferral on a local authority or a combined authority of duties to have regard to, or to promote or secure, the matters mentioned in sections 1 to 1F of the NHSA 2006 when exercising a function transferred to it by regulations under section 17, or by an order under section 105A of the 2009 Act.
(9) In this section, “the health service” has the meaning given by section 275(1) of the NHSA 2006.”—(Alistair Burt.)
This amendment adds provision to clause 19 which defines terms used in, and clarifies the scope of, the limitations contained in paragraphs (a) to (c) of the clause.
Clause 19, as amended, ordered to stand part of the Bill.
Clause 9 ordered to stand part of the Bill.
Schedule 3 agreed to.
Clause 10
Funding of combined authorities
Amendment made: 9, page 11, line 26, at end insert—
‘( ) In section 105 of the Local Democracy, Economic Development and Construction Act 2009 (constitution and functions of combined authorities: economic development and regeneration), omit subsection (4).”—(Alistair Burt.)
This amendment removes the restriction on orders under section 105 of the Local Democracy, Economic Development and Construction Act 2009 only being able to make provision in relation to the costs of a combined authority that are reasonably attributable to the exercise of its functions relating to economic development and regeneration.
Amendment proposed: 58, page 11, line 26, at end insert—
‘(5) The Secretary of State may by order make provision for conferring powers on a combined authority to set multi-year finance settlements.” —(Jon Trickett.)
This amendment is intended to offer financial stability to city regions, allowing them long-term planning which is something not currently offered by the finance settlement or the funding of local enterprise partnership (LEPs).