Health

Baroness Jay of Paddington Excerpts

Thursday 26th November 2015 Lords Chamber

[Baroness Jay of Paddington (Lab)]

My Lords, I thank the noble Lord, Lord Crisp, for introducing this debate in such an informative and authoritative way. It is obviously a very important issue. I wholeheartedly agree with the terms of the noble Lord’s Motion and support his points about the way in which the determinants of health in today’s society are often driven by matters such as alcoholism, obesity and other concerns, which are obviously not the sole responsibility of the NHS, however much we support it.

I think that the way that the noble Lord has proposed is the only way to improve the stark health inequalities in this country. As he reminded us, we are all familiar with the really disgraceful record of discrepancies in morbidity and mortality between different social and economic groups in this country. It has become almost a truism of health economics that low income and low social status are major contributors to ill health, and probably the determining factor in more rapid ageing.

The proposal of the noble Lord, Lord Crisp, for working towards a “health-creating society”—I am still finding it a little difficult to put those three words together—must be the right approach, but my concern this afternoon is: if the ideas and the vision he describes gain general support, how are they to be delivered? How will we make it happen? As noble Lords are aware, there is enormous emphasis nowadays on localism and finding solutions and organising action as near as possible to the communities involved. I worry that there are difficulties in relying primarily on the local approach to tackle some of the somewhat intractable problems of public health.

Of course, community-based alliances of public service, private enterprise and the voluntary sector can often unleash especially effective energy, and there have been some interesting and radical ideas put forward recently on this ground. I was intrigued, for example, by an article by the chief executive of the Royal Society for Public Health, who wrote about the local high street as “an untapped resource” for promoting health. She picked up on the WHO statement that modern society is actively marketing very unhealthy lifestyles, which the noble Lord, Lord Crisp, has already referred to, and argued that stricter local planning laws and differential business rates could drive businesses such as fast-food outlets, betting shops and payday loan shops out of the high street and reduce the tempting opportunities for unhealthy lifestyle choices. I can see the attraction of this proposal, but in the broader picture I fear that the huge reductions in the budgets of local authorities, combined with a lack of local expertise in specialist problems such as sexual health, may make local projects inadequate and sometimes even increase inequalities.

I hope I will not be labelled a centralist dinosaur for saying that national government and a senior Minister must take the lead responsibility for promoting change in this area and achieving the necessary collaboration to build a health-creating society. I was proud to be a Health Minister when the very first Minister for Public Health, my noble friend Lady Jowell, was appointed to that post. She was a senior Minister of State with a wide remit and, although the post has continued in successive Governments, it has not always had the authority of the original appointment and, very importantly from my point of view, it has always been based in the Department of Health. In my view, a Cabinet post should be created—we will have to think of a good title—to take forward the cross-cutting policies we are discussing. This Minister should be based in the Cabinet Office, with co-ordinating powers across government.

My enthusiasm for this approach is partly based on my experience as Minister for Women, when I was based in the Cabinet Office and worked with several departments across Whitehall and with outside agencies. It was a largely successful arrangement. My Cabinet Office team acted as a kind of internal pressure group within the Government; we legitimately raised issues of women’s employment, education, health and pensions across Whitehall and had the authority to do so. I think that the interesting and imaginative proposals for a health-creating society can only be delivered by an imaginative approach from the machinery of government, and I would like to see a Cabinet Minister leading the initiative towards this vision.

National Health Service

Baroness Jay of Paddington Excerpts

Thursday 8th January 2015 Lords Chamber

[Baroness Jay of Paddington (Lab)]

My Lords, I congratulate my noble friend on his timely debate, which has become even more relevant in the face of the tsunami of so-called special incidents which are apparently swamping the NHS at the moment. On the face of it, the A&E tsunami is rather unlike the other winter crises that we have experienced. After all, the weather is not particularly severe and we are not experiencing a threat from a new infectious illness, such as SARS, or even a normal seasonal flu epidemic. Indeed, as was rightly asserted in this House yesterday, much of the primary cause of the present situation is government policy—and, specifically, the reduction in social care and the fragmentation of health services to which the noble Lord, Lord Horam, referred.

The only possible political silver lining that I can see is that the Secretary of State Mr Hunt seems to recognise that he is accountable and responsible for what is happening. I was surprised and somewhat relieved to hear him say yesterday in Commons Hansard:

“I take responsibility for everything that happens in the NHS”.—[Official Report, Commons, 7/1/15; col. 277.]

That is in sharp contrast to his attitude last autumn when the Secretary of State received the Five Year Forward View as though it was a rather interesting contribution from an independent think tank. In exasperation in response to that, the shadow Secretary of State, my right honourable friend Andy Burnham, commented:

“I do not know who runs the NHS these days, but I do know that it is certainly not him”.—[Official Report, Commons, 23/10/14; col. 1045.]

He also said that this was a clear illustration,

“of the serious loss of public accountability”,

following the 2012 reorganisation Act.

Those of your Lordships who took part in the long drawn-out proceedings on that Act in this House will remember the battles that we had to retain the central responsibilities of the Secretary of State in the legislation, responsibilities that had after all been there since 1948. We eventually succeeded so that the Act now reads:

“The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England”.

The noble Lord, Lord Mawhinney, a previous Conservative Health Minister, said in our debate that everyone now knew that the,

“Secretary of State is the boss and is held accountable”.—[Official Report, 8/2/12; col. 303.]

I certainly hoped that this meant that in spite of the determination to transform the NHS into a regulated but independent competitive industry, the personal statutory accountability would prevent the most harmful results that we feared from the Act. I was wrong. Now I can only hope that the present damaging crisis may suggest to Ministers that they should exercise greater responsibility and accountability, not just for expenditure but for at least some of the policies proposed in the forward view.

I want to focus in my remarks on paragraph 3 of that report, which says:

“The future health of millions of children, the sustainability of the NHS, and the economic prosperity of Britain all now depend on a radical upgrade in prevention and public health”.

I certainly accept that clarion call; my concern is that the 2012 Act has made it difficult to fulfil. Noble Lords will be aware that public health programmes are often rooted in community-based, sometimes voluntary organisations. These can be very useful, particularly when informal outreach schemes dealing, for example, with problems such as drug or alcohol abuse, can be much more successful than statutory services. but today the competitive reorganisation has led to a hugely expanded pool of non-NHS community providers—a staggering 69% of the new contracts agreed. In my estimation, that must lead to enormous fragmentation and great difficulty in achieving national goals.

In particular, I draw noble Lords’ attention to very real problems in delivering good sexual health and HIV prevention and treatment services under this new system. In recent months, as the noble Lord, Lord Fowler, has just done, we have rightly focused on the Ebola virus, but the latest figures for HIV in this country are a cause for a new concern. In the past 12 months, the numbers of gay men newly diagnosed are the highest since the figures were first collected 20 years ago. During the intervening years, of course, we have developed world-leading clinical care in this complex field and created much-admired prevention programmes, but those are now threatened. Part of the problem is that the public health commissioners in local authorities simply do not have the relevant specialist knowledge and experience. I have learnt, for example, of a particularly stark case in Chester, where the hospital-based specialty services created and led by a very senior consultant are to be replaced by a consortium of GPs. There the Countess Of Chester Hospital put forward a comprehensive tender for an integrated sexual health service led by five consultant doctors costing £2.4 million. This has been rejected in favour of an exclusively GP service with no hospital specialist input, costing £2.8 million. It is very hard to see any financial or clinical logic behind this. I wish it was just one example, but it is not.

I want also to explain my concern about the particularly bad situation in relation to HIV prevention. The Government have now said that the programme for national HIV health education will be cut by a staggering 50% in the next financial year. We cannot afford complacently to allow the prevention and treatment of infectious, dangerous diseases to slip from the effective grasp of a national health service. I fear that that is likely to happen.

Overall, I would like to be optimistic about the future. I agree with many of the ambitions in the Five Year Forward View and respect Simon Stevens, who was a special adviser when I was a Minister in the Department of Health. However, he is far too complacent about the encroachment of independent advisers and the resulting fragmentation of important services. Overall, we must retain the national leadership of the NHS not only through the executive managers but essentially through the Secretary of State. His accountability to Parliament and responsibility for the provision of health services should always be the keystone of the health service.

NHS: Keogh Review

Baroness Jay of Paddington Excerpts

Tuesday 16th July 2013 Lords Chamber

[Earl Howe]

My Lords, the historical culture of that particular trust has been focused on financial targets, and the tone from the top now needs to focus on improving quality and long-term sustainability. There is a string of issues identified in Sir Bruce’s review, all of them urgent. The good news is that I know that the current management is addressing those issues. I am naturally sorry to hear of the personal experiences of my noble friend’s family.

[Baroness Jay of Paddington]

My Lords, I wonder whether I can assist the noble Earl, and indeed the House, by quoting directly from the letter from the noble Baroness, Lady Young of Old Scone. The noble Earl referred to it earlier and said that he was not aware of the details. This is a letter to the Prime Minister from the noble Baroness, dated yesterday, in which she says that he has been “misled” in the response that he gave in Prime Minister’s Questions. She says that the CQC, of which she is a former chair,

“was not pressurised by the previous Government to tone down its regulatory judgments or to hide quality failures”.

She goes on to say:

“So I am afraid neither my evidence to the Francis Inquiry nor my current recollection … can be interpreted to support the view that, in the words of your answer at PMQs ‘there was a culture under the previous Government of not revealing problems in the NHS’”.

She finishes the letter by asking:

“How can this misapprehension best be corrected for the record?”.

Perhaps the noble Earl can suggest that.

[Earl Howe]

I am rather sorry that the noble Baroness should have raised that, as I was rather keen to protect the noble Baroness, Lady Young, from any embarrassment, because I think that the whole House respects her. All I can say is that the substance of the letter to which the noble Baroness refers is diametrically opposite in content to the evidence that the noble Baroness, Lady Young, gave to the Mid Staffs public inquiry.

NHS Commissioning Board: Mandate

Baroness Jay of Paddington Excerpts

Tuesday 13th November 2012 Lords Chamber

[Earl Howe]

The noble Lord has alighted on an extremely important area. We have been very careful in constructing the outcomes framework to make sure that we define deliverable outcome indicators. The NHS Commissioning Board is satisfied that the indicators are realistic but I have to be candid with him. This represents work in progress as the precise way in which the board will demonstrate that it has made progress against each of the indicators has not been defined in every case. I can assure him that it will be. It will be up to the board, however, to construct a system of local accountability to ensure that the clinical commissioning groups are held to account against realistic demonstrable indicators which match those of the NHS outcomes framework, not least in the area of chronic conditions. The patient pathway is work in progress, too, but much of its quality can be measured by reference to the patient experience. That is one of the central domains of the outcomes framework, on which a lot of work has been done. I would be happy to write to him on that.

[Baroness Jay of Paddington]

My Lords, perhaps I may press the noble Earl a little further on the part about IT in the mandate. My noble friend Lord Warner also referred to it. Would he develop a little the expectation in the mandate about developing the electronic patient record, which I feel is an aspiration rather than a practical reality if it is going to take place within two years? Can he help me by describing the way in which progress can be measured, and how is this to be achieved in a period when the pressure is on local resources and there is a dispersal to local responsibility which earlier he described as being a problem?

[Earl Howe]

There are several objectives around our wish to see more patients having access to their records, not only to enable them to order repeat prescriptions and make appointments with their GPs online, which many practices already enable, but also to access their own personal health records where they wish to do so. This, too, is a work in progress. Noble Lords do not need me to tell them that there are clear confidentiality issues involved in this area. What we cannot have is a system that is open to breaches of security. However, work is going on with the Royal College of General Practitioners and the British Medical Association on that point. We have said that it is our ambition that everyone should be able to access their GP records online by 2015. That is the ambition and we think that it is achievable. However, once again I would be happy to keep the noble Baroness updated as work continues.

Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Monday 19th March 2012 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, since Second Reading in this Chamber, this House has carried out a very thorough public scrutiny of this Bill. In doing so, it has had the advantage of the expertise of practitioners and former practitioners with great experience from across the medical, surgical, nursing and social work professions, and also those with experience of administration of those services. Further, it has had the advantage of former health service Ministers and of the skilled, eloquent probing of the Bill’s provisions by the opposition Front Bench: the noble Baroness, Lady Thornton, the noble Lords, Lord Hunt of Kings Heath and Lord Beecham, and the noble Baroness, Baroness Wheeler. We have also had the expertise of the noble Lord, Lord Owen, himself not only a former Health Minister and writer on health matters, but also a director of a large American pharmaceutical company for quite a number of years. In addition, as the Bill has proceeded, we have received detailed briefing from many people currently working in the health and social work services.

The scrutiny was completed last week. In that situation, we would grossly underestimate the breadth and depth of that scrutiny if we accepted that a register, prepared 15 months ago by civil servants in the privacy of the Department of Health before the Bill was introduced and before the very large number of amendments were made to it, could add substantially to our understanding of the Bill. Therefore, in my submission, at this stage this amendment to the Motion is inappropriate. At the very best, it refers only to the tribunal’s decision; it does not refer, except indirectly, to the register. In my submission to your Lordships, the register prepared so long ago in privacy by civil servants cannot be expected to add substantially to what we know already.

[Baroness Jay of Paddington]

My Lords, as the House knows, I chair your Lordships’ Constitution Committee, which has produced two reports on the Bill. As everyone has said, the Bill is enormously complicated and very detailed, and we have been very detailed in our consideration of it.

I support the amendment of the noble Lord, Lord Owen, because the noble Earl the Minister has, as we all know—and we have all paid due respect to him on this—been enormously helpful to the House’s consideration and the production of amendments. The Constitution Committee itself produced very important amendments on the Secretary of State’s role on this. All this has demonstrated the very sound, elaborate and good processes by which this House and its Select Committees, as well as the many experts, as the noble and learned Lord, Lord Mackay of Clashfern, has just mentioned, have contributed to the debate. We have proceeded on this in an extremely sensible, measured and considered way.

The Government have been very generous and the Minister has been particularly generous in accepting amendments and entering into discussion. Having listened to the noble Lord, Lord Owen, I think he is saying that the House should continue to follow the very good process that we have had in formulating our opinions on the Bill. We have taken time and have deliberated very carefully. The House has listened to many views, including those of its Select Committees and of its many expert Members. As the noble Lord, Lord Owen, said, we have also listened to many people outside.

Over the weekend, I have been particularly amazed at the last-minute contributions from, for example, the Royal College of Physicians. The noble Lord, Lord Owen, mentioned one online petition, and I have received another from the organisation Avaaz, signed by 110,000 people. The cumulative figures suggest that in the past few days more than 500,000 people have signed online petitions specifically relating to the amendment of the noble Lord, Lord Owen, not to the more general point.

I say to the House that we have followed the processes very well indeed in relation to this Bill. We have agreed to disagree on some things, and the Government have accepted amendments where they have accepted the arguments. In following the processes, which this House has created very successfully over the years, we have used our best efforts with regard to the Bill, and we can lose nothing by continuing to follow those processes and, finally, by taking note of the tribunal’s report, as the noble Lord, Lord Owen, has suggested.

[Lord Birt]

My Lords, I rise to underline some of the arguments articulated by the noble Lord, Lord Fowler. A risk register is a key prerequisite of any effective organisation, whether public or private. I have had experience of a variety of registers in both the public and private sectors. When I worked at No. 10, I was a member of the Cabinet Office Strategy Board, and one of the tasks of that board was to consider what was effectively the national risk register.

What is the purpose of a risk register? It is to identify all risks. Every risk register that I have ever looked at has been kept highly confidential because it has always been gory and hair-raising to read. The purpose of identifying worst-case risks is to do your best to prevent them and, if you do not prevent them, you need to work out, in advance, what you will do if bad things happen. To create an effective risk register, you need to—

Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Thursday 8th March 2012 Lords Chamber

[Baroness Northover]

If I wish to continue with the thrust of my argument—as the noble Lord, Lord Warner, said in the previous debate—I can do so. At the moment it is better if I lay out my argument. If there are points of clarification that noble Lords want an answer on, I will be very happy to give way when I have completed my argument.

We welcome and support—

[Baroness Jay of Paddington]

My Lords, I was not present when the noble Baroness had an exchange with the noble Lord, Lord Warner, on this matter. However, I have been in the House for 20 years and it is my widespread experience that of course the Minister is right to say that she must complete her argument. However, she has spoken for some minutes since the first intervention by the noble Lord, Lord Harris, and her argument has been well made.

Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Wednesday 8th February 2012 Lords Chamber

This establishment of responsibilities was something that we were very concerned to see in the Bill. Again, it is a tribute to the House that the procedures we adopted have achieved a structure that is both clear and internally consistent, while being effectively co-ordinated.

[Baroness Jay of Paddington]

My Lords, the House will be aware that the second report of the Constitution Committee on this Bill suggested amendments in this area, precisely for the reasons well outlined by the noble Lord, Lord Marks, and as expressed by the Minister. We were concerned that the way in which the Bill was originally framed would dilute that line of responsibility through the Secretary of State and that the provisions on autonomy were such that that link would be broken, or at least threatened.

I wish to explain briefly why, although the committee produced amendments that are very similar to the ones tabled by the Government and supported by the noble Lord, Lord Marks, I have not put my name to them. That is simply because the wording of the government amendment is not as simple as the one that the Constitution Committee supported and wished to see in the Bill. We suggested:

“Subject to sections 1(1) and 1(3)”,

which we discussed on government Amendment 5,

“and so far as is consistent with the interests of the health service, the Secretary of State must, in exercising functions in relation to that service, have regard to the desirability of securing”,

et cetera. Clearly that is very close to the wording of the amendment tabled by the Government. The Constitution Committee is particularly grateful for the phrase “having regard to”, as the Minister has explained. We were not in a position to discuss the change in formulation that has occurred, and we have yet to listen to my noble friend Lady Thornton, but as there were members of the committee who, like me, would prefer to see this clause deleted, I have not put my name to this amendment although I understand that it is very close to the one that the committee originally suggested.

[Baroness Finlay of Llandaff]

My Lords, I wish to raise some questions because I have put my name to the amendment suggesting that Clause 4 be deleted. The Government’s guidance notes published with the amendment that has been tabled appear to make the duty of autonomy subject to the Secretary of State, but there is ongoing concern that there remains the risk that the clause could be used by clinical commissioning groups to justify not providing a full range of services or putting inappropriate services out to tender. While local organisations should have the freedom to respond appropriately to the health needs of the population, local commissioners should not be able to act totally autonomously and commissioners must have regard to national guidance. In his closing summary, the counsel to the chair in the Francis inquiry pointed out that there is a need for far greater standardisation of operating and quality standards in the NHS and close monitoring of compliance.

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.

--- Later in debate ---

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 complexities that are being set up and strengthened, as the Minister has agreed, make the whole thing so incredibly complicated and bureaucratic that the underlying policy positions are being totally distorted.

[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.

Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Wednesday 8th February 2012 Lords Chamber

[Baroness Jay of Paddington]

The Minister has clarified the difficulty that I was in, partly because of the intervention from the noble Lord, Lord Lester, but also because of what the noble Baroness, Lady Williams, said. As I understand it, all their remarks are posited on the basis that the subsequent amendment, Amendment 5, will be accepted by the House. When they refer to the terms of the Bill, they are referring to the Bill as it now stands and not as it will, I hope, be amended in the conclusion of our next debate.

[Earl Howe]

I am grateful to the noble Baroness, who is of course quite right.

I have been handed a note which says that when I said that there would be no legally enforceable duties on quality improvement, I should have clarified that that would have a follow-on. I should have said, “across the NHS system”.

The noble Baroness, Lady Thornton, referred to potential privilege responses from the Commons. My noble friend the Leader of the House made a Written Statement last Thursday about the financial privilege of the House of Commons in which he drew attention to a paper by the Clerk of the Parliaments, available in the Library. I think that questions about procedure may be best directed to my noble friend, but I shall do my best to assist. The Clerk of the Parliaments makes it clear in his paper that,

“until the Commons asserts its privilege, the Lords is fully entitled to debate and agree to amendments with privilege implications”.

That is what we should do. I would much regret it if the House thought that I was trying to restrict its role of revision. The Marshalled List sets out more than 100 amendments in my name, tabled in response to debate in Committee, and if the House agrees to those amendments I can assure noble Lords that the Government will encourage the other place to accept them.

The essence of the noble Baroness’s question is about privilege reasons for the Commons rejecting amendments proposed by this House, and on that I can say two things. First, any amendment with implications for public expenditure might involve privilege, but that is a matter for the Commons alone. Decisions on financial privilege are for the Speaker of the Commons on advice from the Clerks of that House. If the Commons reject a Lords amendment in which the Speaker has determined that privilege is engaged, the only reason that it can send this House is a privilege reason. There is no discretion.

Secondly, this debate is by its nature premature. I hope that our debate and dialogue will lead to this Bill being sent to the Commons in a form that that House will accept. Until we see how Report unfolds, it is too early to speculate on the reaction from the Commons. One cannot have a reply to a question until the question has been asked.

--- Later in debate ---

[Earl Howe]

My Lords, I beg to move Amendment 5. As noble Lords will be aware, and as I stated during our discussion on the previous group of amendments, a number of concerns were raised in Committee over the clauses relating to the Secretary of State’s accountability for the health service. Since our collective discussion in November to withdraw amendments on this issue, pending a period of discussion and reflection, I have been meeting noble Lords to understand their concerns. Alongside the conversations that I have had with Peers, both individually and in groups, we have held two all-Peers seminars to try to reach consensus on what changes might be made to bring clarity. I am very grateful to all those who invested time and effort in this matter, which I know so many are passionate about.

I would particularly like to thank the noble Baroness, Lady Jay, and her colleagues on the Constitution Committee, who articulated their concerns about ministerial accountability so coherently in their two reports and proposed amendments. I believe, as had been suggested already, that the process that we have gone through has revealed the House of Lords at its best—working together to improve the Bill and achieve common ground. This amendment deals with the overarching accountability of Ministers for the health service, as set out in Clause 1. At this stage, we are taking this amendment on its own, but there are further amendments on related themes to follow. We should perhaps look at this amendment in that context.

However, I think I am right in saying that Clause 1 has attracted the most attention from Peers, and quite rightly so. It gives the Secretary of State a duty to,

“continue the promotion in England of a comprehensive health service”,

wording that can be traced back to the original 1946 NHS Act. Amendment 5 makes it clear that the Secretary of State will retain ministerial responsibility to Parliament for the health service. It has been this question of ministerial responsibility that has been such a cause of concern, and I am sincerely grateful to the noble Baroness and the Constitution Committee for drafting this amendment which, I hope, should serve to put everyone’s minds at rest on this issue.

Noble Lords will recall the original suggestion made by my noble and learned friend Lord Mackay, which used “ultimate responsibility to Parliament”. I should explain that we have gone with the formulation “ministerial responsibility to Parliament” because it more clearly refers to the constitutional principle of ministerial responsibility. That is to say: Ministers are responsible, accountable and answerable to Parliament for their policies, decisions and actions—and, indeed, those of their departments. The principle is recognised by Parliament and the courts, and, as the Constitution Committee notes, in the Ministerial Code. The amendment reflects the position that as a result of the principle and the duties and powers imposed by NHS legislation, the Secretary of State for Health is responsible and accountable to Parliament for the health service in England, even if he or his department do not directly provide or manage NHS services. It has never in fact been the Government’s intention to diminish ministerial responsibility to Parliament, so I can offer my wholehearted endorsement of and support for this amendment. I hope that your Lordships will feel able to do so as well.

[Baroness Jay of Paddington]

My Lords, I am grateful to the Minister for the way in which he introduced this amendment because, as he graciously expressed, this is not really a government amendment but an amendment by the Constitution Committee, which it invites your Lordships to agree. Of course, with a government Minister at the head of those supporting the amendment, I hope that will in itself be unarguable. It is right that the Constitution Committee’s position should be explained a little more in the context of this first amendment in relation to the Secretary of State's responsibilities, and I am glad that it has been put in a group on its own. It is a very significant amendment, and not just because it alters fundamentally the expression of the Secretary of State's responsibilities from the original Bill. It is also significant because of the process by which it has been reached—the Minister has already alluded to this, and I certainly express my enthusiasm for the process—and in which the House has undertaken this work.

The terms of the amendment are simple but very powerful:

“The Secretary of State retains ministerial responsibility to Parliament for the provision”—

that is always the difficult word—

“of the health service in England”.

It is simple but powerful because, frankly, so is the concept of ministerial responsibility, although we argue about it all the time. It is a basic concept which, as the Minister has said, has been expressed in all NHS legislation, and quite rightly in my view, since the first Act 60 years ago. Without wishing to appear to give a civics lesson to the House, it is worth saying that the Constitution Committee has agreed that, in its terms, individual ministerial responsibility means that Ministers must be accountable and answerable to Parliament for their—and their departments’ and agencies’—policies, decisions and actions. I think that is widely accepted. There is no constitutional distinction between ministerial responsibility, accountability and answerability; they are all aspects of the same constitutional fact.

This Bill was worrying, because it was the first in which there was not an explicit provision on political and legal accountability. The Constitution Committee, as the noble Earl said, raised serious concerns about this in the initial report that we gave to the House before Second Reading. There we said that the Bill, if enacted in its present form, risks,

“diluting the Government's constitutional responsibilities”,

for the NHS. It is worth reminding your Lordships that those responsibilities which the Minister should retain embrace the accountability to Parliament for the vast public expenditure that the NHS undertakes, and the provision of its multitude of services.

Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Tuesday 22nd November 2011 Lords Chamber

[Earl Howe]

As I said, there will be full public consultation on the mandate. It would of course be possible for the Health Select Committee or indeed other parliamentarians to scrutinise and challenge the mandate at that point. If changes to the mandate were made in-year as a result of that process—that is not inconceivable—then a revised mandate would be published. It would be laid before Parliament with an explanation. After the mandate comes into force in April 2013, Parliament will have all the usual opportunities to ask questions about the performance of the board against the mandate. The board in addition will include in its annual report an assessment of performance against the mandate, and that will be published and laid before Parliament.

The noble Lord, Lord Hunt, asked me how we will know what the board said when it is consulted about the mandate. As I am sure he knows, the Government have a code of practice on consultation that we would follow. That code sets out the expectation for the Government to respond to the consultation and in doing so to provide a summary of the views expressed to each question as well as of what decisions have been taken in the light of them.

The noble Lord, Lord Patel, asked a question that the noble Lord, Lord Warner, also asked me about what would happen if the board disagrees with the mandate. The mandate sets out the objectives that the Secretary of State considers the board should seek to achieve. Those objectives will be developed in close co-operation with the board. It will not be a detached process. Indeed, the Bill requires the Secretary of State to consult the board before setting the mandate. Nevertheless, decisions about the content of the mandate will ultimately rest with the Secretary of State, and I contend that that is entirely appropriate. It is the Secretary of State taking responsibility on behalf of the Government for what he is requiring the board to achieve.

I hope that I have shown that the level of transparency and of public accountability over the mandate will be very great indeed. I do not share noble Lords’ apprehensions that somehow Parliament will have no opportunity to comment on the mandate. Quite the reverse is the case. We will ensure that it does, and it is right that it does. This is an entirely new situation for the NHS. I hope that that is welcome to noble Lords and that I have said enough to persuade the noble Lord, Lord Warner, to withdraw his amendment.

[Baroness Jay of Paddington]

I wonder whether the Minister can help me with a point he made in response to the noble Lord, Lord Owen. He was raising some important points of principle about the Secretary of State’s role and the way in which it, as it were, percolates through so many of the provisions in the Bill, and the Minister referred to Clause 49 as being something that should ease those concerns. I realise that we are not discussing Clause 49 at the moment, but the Minister and the Committee will remember that the Select Committee on the Constitution was concerned that Clause 49 was not an adequate answer to some of these points of principle that were raised by, among others, the noble Lord, Lord Owen. Can the Minister help me this afternoon on that?

Health and Social Care Bill

Baroness Jay of Paddington Excerpts

Wednesday 9th November 2011 Lords Chamber

[Earl Howe]

My Lords, I, too, think this has been a very valuable debate and I thank all noble Lords for their contributions to it. I do mean that. Ministers always like to hear support, and I have had some of that today, but at the same time no self-respecting Minister would wish to brush aside the kinds of concerns that have been voiced this afternoon about the effect of this clause. I certainly do not wish to do that; hence my offer to engage in discussions with those noble Lords whose concerned voices have been heard.

Following the consensus that we reached at last week’s Committee session on that proposal, I express the hope that the noble Lord will feel able to withdraw his amendment at the end of this debate and that we will use the time between now and Report to reflect on the concerns that we have heard expressed about Clause 4—and, indeed, on Clause 1 last week. I recall from discussions in the Chamber on 2 November that the Committee had little appetite to hear me dwell on Clause 1 or the amendments to it. I am therefore going to keep my remarks brief. However, I hope that the Committee will find it helpful if I provide a bit of context to this clause.

As I said at Second Reading, our proposals for the NHS involve a fundamental shift in the balance of power away from politicians and on to patients themselves, as well as to doctors and other health professionals. This is not an abdication or divestment of power by politicians but a shift. I think that we all agree that empowering front-line organisations offers enormous potential to unleash innovation and to drive up the efficiency and quality of services. The noble Lord, Lord Darzi, to my mind, said it all. That is why the Bill retains the key powers that the Secretary of State needs in order to remain properly accountable but removes his current sweeping powers to delegate and give directions to other bodies.

Instead, the Bill sets out roles and responsibilities in primary legislation that local commissioning will be carried out by clinical commissioning groups—with their own distinct statutory duties, set by Parliament—rather than by PCTs acting under the direction of the Minister of the day. Ministers will have specific but extensive powers to set requirements for commissioners, in particular through the mandate to the NHS Commissioning Board and through regulations known as standing rules. As the noble Lord, Lord Warner, observed, I am sure that we will give some thought to the impact of the autonomy duty when, in future Committee sessions, we debate the clauses that give the Secretary of State these powers.

However, there is a clear need for Ministers to have sufficient flexibility to respond to changing circumstances in the health service. Given that, there is very little limit on what or how many objectives or requirements the Secretary of State can impose. That leaves open the risk that a Government—or indeed the board, which has an equivalent duty at Clause 20—could introduce process targets or burdensome rules that inappropriately interfere with front-line clinical decision-making. That is the last thing anyone wants. To my mind, this makes it vital to have some kind of countervailing force to establish the principle that Ministers should use their powers carefully. We believe that the autonomy duty provides this important safeguard, enabling organisations to act in the best interests of patients, free from the risk that Ministers or the board revert to a command-and-control style in order to achieve their objectives. The noble Baroness, Lady Murphy, put the point very well.

The duty is therefore an important symbol of the shift of power that the Bill seeks to achieve. I agree with my noble friend Lord Marks that the autonomy duty must be subsidiary to the general duties of the Secretary of State, including, in particular, his duties under Clause 1 of the Bill to promote a comprehensive health service and to exercise his functions so as to secure the provision of services. Although we believe that the duty of autonomy would not inhibit the Secretary of State in exercising his overarching powers and duties as set out in Clause 1, I recognise, as I say, that there are concerns about legal clarity. I therefore welcome the prospect of further discussions with my noble friend and other noble Lords outside this Chamber as to how we might put this matter beyond doubt.

[Baroness Jay of Paddington]

My Lords, I apologise for interrupting during the Minister’s conclusion but I hope this will be helpful. I want to explore whether he can just help me by describing what he sees as the scope of these discussions, in terms of the clauses to be discussed. As the noble Lord, Lord Marks of Henley-on-Thames, pointed out for example in his very helpful intervention when he made passing reference to it, the proposed new Section 13F of the 2006 Act, at Clause 20 in the Bill, is very relevant. It may be helpful to the House to know that the Constitution Committee was invited to look at this again. We have met since the last day of Committee and have agreed to look again at Clauses 1, 4, 10 and 20 precisely because of that interrelated matter. Could the Minister help us on that?

[Earl Howe]

I am grateful to the noble Baroness. As she has indicated, there is certainly a read-across from Clause 4 into Clause 20, and I readily accept the suggestion that we should factor in issues that emerge from Clause 10.

I am clear that a successful process will be one that can take account of views from all political parties and the Cross Benches. As well as hearing in full from those Peers, many of whom have put their names to amendments and have become particular experts on this issue, there is also an implicit legal perspective to this and I believe that an important building block will be to engage with the Constitution Committee of your Lordships’ House and other legal experts in this House on these points. To start that dialogue, I propose to meet next week with a number of noble Lords, if they are willing, to explore the process for going forward. Following that, I will write again to all Peers setting out the proposed process in more detail. I hope that that is helpful.

I have very clear answers for the noble Lords, Lord Patel and Lord Warner, and other noble Lords to the concerns that they have raised. However, for the reasons that I have set out, if they will bear with me, I shall refrain now from providing a detailed commentary on the amendments in this group. I hope that, with the prospect of future discussions that will factor in the valuable points in this debate, the noble Lord will feel able, for the time being, to withdraw his amendment.