Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Tuesday 11th October 2011 Lords Chamber

[Baroness Jay of Paddington]

My Lords, I am delighted to follow the noble Lord, Lord Owen, and I will pursue the points he raised about findings of the Select Committee on the Constitution on the role of the Secretary of State. However, I start by also following the noble Lord in speaking briefly about what I see as the underlying principles of the NHS and the public understanding of them.

Almost exactly 15 years ago, in November 1996, I was proud to introduce a debate in your Lordships’ House to mark the 50th anniversary of the founding of the NHS, which also sought to reassert its public values. As so often happens in general debates in your Lordships’ House, the debate attracted a wide range of speakers, some of whom I am delighted to see are also speaking today. There was general agreement on that occasion that, although healthcare and people’s expectations of it, as the noble Lord, Lord Darzi, reminded us, have changed vastly since the 1940s, the old values of social solidarity and collective responsibility must be maintained into the 21st century. On that day for me and, I think, for many others present, the argument was given special force and passion by the late Lord Bruce of Donington, Donald Bruce, who was Aneurin Bevan’s Parliamentary Secretary and helped to steer the original founding Bill through Parliament.

As today we are beginning our scrutiny of a Bill promoted as the biggest shake-up of the NHS since it began, I do not think it is irrelevant to look back at the principles which Donald Bruce and his parliamentary colleagues created. Recently I found again my family’s somewhat dog-eared copy of Aneurin Bevan’s testament, In Place of Fear. I am glad to echo the words of the noble Lord, Lord Darzi—in place of fear. The first sentence in the chapter on a free health service reads:

“The field in which the claims of individual commercialism come into most immediate conflict with reputable notions of social values is that of health”.

I say “hear, hear!” to that in 2011, as I would have done in 1946. He goes on later to say:

“A free NHS is a triumphant example of the superiority of collective action and public initiative applied to a segment of society where commercial principles are seen at their worst”.

I want to repeat those words not because I have any desire at all to see the NHS preserved in a kind of post-war aspic. Like other noble Lords who have spoken from these Benches, and indeed around the House, I am entirely in favour of change. But it is legitimate, when today’s Government assert that they are proposing fundamental change while at the same time maintaining those underlying values, to test their proposals against some simple and original principles.

Let me say at the outset that I have never been a Bevanite or an old Labour purist about the provision of health services. I have long believed in a mixed economy of providers, and noble Lords around the House have correctly drawn attention to the changes made by the Labour Government in that direction. I could say anecdotally, to coin the phrase of the noble Baroness, Lady Bottomley—I hope that I am not being anecdotal in a negative sense, but in order to be illustrative—that right at the beginning of Tony Blair’s Government, my right honourable friend Alan Milburn and I, as Ministers of State in the Department of Health, argued—I have to say unsuccessfully—that a private sector company should be allowed to build and equip a renal dialysis centre in a part of the country where the existing services were inadequate. Had that service happened—as I say, it did not—the centre would, of course, have been staffed and managed by the health service. When Alan Milburn later became Secretary of State, he did indeed allow some aspects of private sector involvement, as well as the voluntary and charitable sectors, to intervene in order to extend and improve local patient care. I am delighted that my noble friend Lord Hutton of Furness is to speak later in the debate because I am sure that he will record from his own history the way that programme was taken forward by the previous Government. However, I supported it only if—this was the central underlying condition—those providers were appropriately managed and planned for in the interests of patients and not the providers, based exclusively on quality and not on price competition, and remained firmly within the framework of NHS accountability.

Today, I have to say there is already an expectation, perhaps in anticipation of this Bill’s passage, that a free market is opening up in a completely different way. I was alarmed to learn only 10 days ago, for example, that in Surrey a private company owned by the Virgin corporation is now the preferred bidder to run community health services in a deal worth about £500 million. The particularly disturbing aspect of the Surrey decision is that Assura Medical, the Virgin company, is preferred over a well respected local social enterprise mutual organisation, appearing to confirm fears that large multinational businesses will win out over smaller, less commercially sophisticated providers. I must say to the noble Baroness, Lady Bottomley, that I was not encouraged by her invoking the Tesco example.

If this is the future the Bill will create, it is a revolutionary and unwelcome system. This is a completely free, competitive market—a long way from the mixed economy of publicly accountable provision within the NHS set-up which I can accept as consistent with the original principles of the service. However, with the leave of the House I shall take a few minutes to come back to the principles of accountability, particularly the democratic accountability of the NHS. I want to refer to the recently published report of your Lordships’ Committee on the Constitution, which I am privileged to chair, and to which the noble Lord, Lord Owen, and other speakers have already referred. As the Minister has said, we have already had a response to the report, but I am afraid to say that I only received it this morning and therefore he and the House will understand that the committee has had no chance to consider it in detail. However, I echo the concern of the noble Lord, Lord Owen, that although the Minister has been encouraging in private conversation and in his speech today about the possibility of amending the Bill so as to counter the concerns of the committee about accountability, the wording of his letter written to me last night states:

“We do not consider any amendments necessary to put this matter beyond legal doubt”,

which is an exact contradiction of what the committee has said and what I understood the noble Earl to say in his opening remarks. Perhaps that can be clarified.

The primary concern of the committee is the question of the duties of the Secretary of State and his legal responsibility. To emphasise the point picked up by the noble Lord, Lord Clement-Jones, it is not that the Secretary of State and the Department of Health currently provide health services which under the Bill would be provided instead by clinical commissioning groups—everyone understands that Ministers have never directly provided services—but that under existing legislation, the Secretary of State is constitutionally and legally responsible for the provision of healthcare, whoever provides it and wherever it is provided. There are new so-called safeguards in the Bill in Clauses 49 and 50, but the Constitution Committee regards them as only a modest contribution towards a new form of accountability, and your Lordships may not regard them as sufficient.

Of course, the Constitution Committee has already proposed a simple solution; that is, to retain the existing wording in the current Act which in our view reflects the founding provisions established in 1946. I was surprised that in many exchanges in the House of Commons, Ministers seemed to be dismissive of concerns about these constitutional matters, simply suggesting that their words and the Department of Health statements were sufficient to guarantee that established health service principles were, to use the cliché, safe in their hands. Frankly, that arouses my suspicions. If the Government feel it is so obvious that the words in the Bill are irrelevant to the long-standing commitment of the Secretary of State to his responsibilities, there really is no reason why they should not accept the existing words as they are set out in the existing Bill. Perhaps I may find the quotation from the Minister’s letter which suggests that he would be unable to deal with that fact. I ask the forgiveness of noble Lords. I received the letter only this morning and I may have lost the relevant page. However, I am sure we will return to this in Committee or at a later stage, but I was not encouraged by the Government’s response to the Committee’s report. As the noble Lord, Lord Owen, said, it was a thorough cross-party recommendation. If my suspicion that the Government are perfectly content to dilute their legal and constitutional responsibilities is correct, that is in order—as it states in another important clause, Clause 4—to promote “autonomy”; in other words, to promote a completely free, competitive market.

I apologise for the length of my contribution, but in conclusion I have been surprised by the volume of public correspondence precisely on the points raised in the Constitution Committee’s report. There is clearly a widespread fear that this Bill will erode the democratic accountability of the NHS as well as the ethical co-operative foundations of the service. In my view, the Bill will need to be properly amended to allay those fears, and I would be grateful if the Minister will make it clear in his concluding remarks whether the Government are still open to that, and to be true to the founding principles. As a first step, I will certainly support the Motion put forward by the noble Lord, Lord Owen, that a special Select Committee should be established.