Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Monday 13th February 2012 Lords Chamber

[Lord Beecham]

My Lords, I trust that my noble friend will not object if I claim at least parliamentary paternity of Amendment 21A—influenced, I must say, by the Faculty of Public Health and others interested in the public health dimension of the Bill. The Faculty of Public Health is a very respectable body, characterised, along with other opponents or critics of the Bill, by Mr Simon Burns, the Minister of State for Health, as zombies, a term that I cannot imagine emerging from the lips of the noble Earl. It is concerned about the degree to which the public health service and its interests and needs will be reflected in the structures that are being created. That interest is shared by the Health Select Committee.

The Health Select Committee also referred to its recommendation that the local director of public health should be a member of each clinical commissioning group. Having regard to the number of clinical commissioning groups, that is possibly asking a little much, although it would be sensible for clinical commissioning groups to consult the director or his representative from time to time in the course of their work. However, my noble friend is absolutely right to stress the importance of having a qualified public health professional on the national Commissioning Board. Public health is an enormously significant area of public policy, and we will discuss other aspects of it later this evening and subsequently during Report. The Health Select Committee was very clear that there should be a qualified public health professional on the NHS Commissioning Board and that the Commissioning Board should routinely take advice from qualified public health professionals when taking commissioning decisions.

The Government’s response to the Select Committee’s report is, to put it mildly, not very encouraging. While the board will be required to obtain clinical advice from a broad range of professionals, including those in public health—and the Government have stated their intention that there should be clinical and professional leadership on the board—they state explicitly that,

“it is an important principle … that it”—

that is, the board—

“should have autonomy of decision-making on matters such as its own membership and its structures and procedures, as far as possible, to determine how best to exercise its functions”.—[Official Report, 14/11/11; col. 514.]

That seems, frankly, to put an unnecessary degree of power in the hands of the national Commissioning Board. It again raises the issues of accountability that my noble friend dealt with so well earlier this evening. It is surely not acceptable to permit an organisation with this degree of power and influence—and, indeed, with the substantial resources at its disposal—simply to decide on its own membership, particularly when public health is not just a health service or Department of Health issue but goes much wider than that. It is important that those wider implications of the work of public health, which we will touch on later, are reflected in the board’s deliberations as a matter of course.

I hope that the Government will take the strong advice of the Health Select Committee and reconsider this position. I have no doubt that there will be a queue of other organisations wanting a place on the national Commissioning Board, but this is, in a sense, a unique function because of its reach into other areas of policy and administration, including, for that matter, other government departments. That voice, reflecting all those interests, is not likely to be represented directly in the way that other clinical interests probably will be in relation to the board. Therefore, I strongly support Amendment 21A, as well as the other amendments in the name of my noble friend. I hope that the Government will see their way to rethinking this matter and come back at Third Reading with a different position.

[Baroness Williams of Crosby]

My Lords, I agree strongly with the noble Lord, Lord Beecham. Public health has always been the Cinderella of the health services, yet it should not be. It is obviously crucial to the whole attempt to reconfigure services, and it is crucial to the emphasis on preventive health that we badly need if we are to stop things such as the very rapid increase in the incidence of diabetes in this country, especially diet-related diabetes. It is important that the public health service is seen by the whole of the public as central to the Government’s proposals for bringing services together. It is essential that we now publicly recognise the very great importance of the public health service and raise it to a level at least equal with other parts of the health service, including clinical commissioning groups.

As the noble Lord, Lord Beecham, said—I thought rather modestly—we accepted that it was too much to expect to have a public health officer on every commissioning group, although there is a very strong case for having one where a commissioning group is happy to have him or her. However, in the case of the board, which after all overlooks the whole CCG structure, it is absolutely vital that a public health officer should be present and should be able to put emphasis on preventive health. It would also be a signal to the health and well-being boards at the local level to follow that lead and themselves put a great deal of emphasis on preventive rather than only curative health.

I think that the noble Lord, Lord Beecham, should get the support of all parties in the House as he has put forward something perfectly sensible and moderate. What the noble Lord, Lord Hunt, was saying about this group of amendments is important, particularly on Amendment 21A, and I hope that the Minister listened very carefully, as I believe that he has a great deal of sympathy with the importance of public health. This will be a very important way in which to underline that in the manifesto.

It is fair to say that the board should make its own decisions on some of the membership, but I agree with the noble Lord, Lord Beecham, that the sheer significance for all the reforms of public health is such that this should be on the face of the Bill and that it should not be left entirely to the members of the board to decide on. There is plenty of room for them to reach their own decisions, but this involves the whole of the Government’s strategy. I very much hope that my noble friend will suggest that the Bill could carry this amendment in it.

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[Baroness Williams of Crosby]

My Lords, I shall speak briefly to this group of amendments. We are very pleased that there should now be acceptance of the detailed suggestions of the Delegated Powers and Regulatory Reform Committee. That gives a much stronger underpinning to parliamentary accountability, which we appreciate.

I should like to ask my noble friend a couple of questions. At this hour of the night I may be misinterpreting some of the wording in the amendments but I should like to address two of them in particular. The first is Amendment 35, to which I have added my name. I simply want to ask a little more about the effect of this amendment on inclusivity. As my noble friend will know, there have been many attempts to make inclusivity part of the Bill, and from time to time we on these Benches have expressed concern on the issue. I should be grateful if he could explain the effects of the Secretary of State’s ability to have a commissioning group determine when a patient can be excluded from the overall effect of the directions under Amendment 35. I assume that that would be because they come under the board rather than the CCGs but my noble friend may be able to give me a slightly purer view of the exact meaning.

My second question relates to Amendments 137, 138, 139 and 140. What are the effects of the Secretary of State’s ability, as I understand it, to proceed with orders and regulations without that effectively being the case in the Bill? In other words, could the Secretary of State, in certain circumstances, simply override what is in primary legislation by passing orders and regulations or would he effectively have to fall back on regulations and orders at a later stage?

I apologise for asking these two questions at this late hour but they are asked in all good faith. I think it is important that the public and Parliament understand exactly what is intended by the amendments. Because they are rather complicated, I may have got it wrong but I hope that I have not.

[Earl Howe]

My Lords, on Amendment 35, Section 3 of the National Health Service Act 2006, as amended by the Bill, states that CCGs have responsibility for persons provided with primary medical services by a member of the group and persons usually resident in the group’s area who are not provided with primary medical services by a member of any CCG. Regulations under subsection (1D) enable the Secretary of State to specify that this would not apply for persons of a prescribed description, or in prescribed circumstances—for example, for persons registered with an English GP who were resident in Scotland. As currently drafted, these regulations would be subject to the negative procedure in Parliament. Following the recommendation of the Delegated Powers and Regulatory Reform Committee, the amendment would make these regulations subject to the affirmative procedure.

Amendments 137 to 140 are linked to Amendment 39. They would make clear that the Secretary of State is not able to delegate his function of making orders or regulations specifically relating to the provision of primary medical, dental or ophthalmic services and any functions relating to local or other pharmaceutical services to the NHS Commissioning Board, a CCG, a Special Health Authority or to such other persons or bodies as may be prescribed. The amendments would make it clear that the Secretary of State cannot delegate the function of making orders or regulations to other bodies under Clause 48.

If that short explanation represents an over-abbreviated one, I shall be happy to write to my noble friend after this debate, but I hope that that is helpful.

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[Lord Hunt of Kings Heath]

My Lords, I shall speak also to Amendments 41, 46, 48 and 293.

On a number of occasions, the noble Earl has spoken about the mandate to be issued to the national Commissioning Board. In our debates we have given a great deal of focus to the relationship between the Secretary of State and the national Commissioning Board, and the role of the mandate. When the noble Earl has been pressed to say how the Secretary of State would be able to bring influence to bear in relation to particular issues, he has referred on a number of occasions to the role of the mandate and indeed to standing rules. There is no doubt that the mandate assumes considerable importance. My amendments are seeking to give Parliament a stronger role in scrutiny of the mandate.

I have taken as my reference point the procedure for national policy statements in relation to major infrastructure planning applications. The noble Earl will be aware that the Planning Act 2008 introduced a parliamentary procedure to deal with major infrastructure planning applications. Essentially, it goes back to the issues that have bedevilled infrastructure planning decisions in this country, which mean that very often when there are public inquiries into applications, much of the public inquiry debate has been around the principle of whether a particular infrastructure should be developed in the UK rather than actual local planning matters. The classic for me was the Sizewell B application, where I think there were roughly 300 days of public inquiry, of which only about 10 to 20 were concerned with local issues; the rest were concerned with whether nuclear power should be developed in the UK.

The Planning Act brought in a new procedure where it was accepted that issues to do with nuclear power—or High Speed 2, for instance, if it were not going to go through the hybrid legislation process—would be decided by Ministers because those are national decisions, and the local application would then be decided very much around the impact of an actual planning consent.

What is the connection between this and the mandate? It is the parliamentary scrutiny, because a national policy statement has to be debated in your Lordships’ House in Grand Committee, Members of the House having every opportunity to ask questions, and then brought before your Lordships in the Chamber where it is open for debate. My proposition is that the mandate is of such importance that a similar approach could be taken in your Lordships’ House and in the other place, providing a real process of questioning and debate. Although, ultimately, it is, in my view, a ministerial decision, I argue in Amendment 46 that such a process of parliamentary scrutiny and ministerial consideration followed by an affirmative order to approve the mandate would provide a robust approach that would give much more parliamentary comfort to the nature of the mandate between the Secretary of State and the national Commissioning Board.

I do not believe that the current provisions in the Bill allow for that kind of parliamentary scrutiny and I hope that at the very least the noble Earl might be prepared to take this back to see whether there are ways in which we could beef up parliamentary scrutiny of what all of us acknowledge is probably one of the most important processes between the Minister and the national Commissioning Board. I beg to move.

[Baroness Williams of Crosby]

My Lords, I shall address Amendments 38, 43 and 49 in this group but, given the lateness of the hour, I can reassure the House that I shall not be lengthy on any of them. My comments will follow fairly closely some of the matters raised by the noble Lord, Lord Hunt, and will therefore fit in well with our brief debate.

Amendment 38 in essence is the suggestion that the Secretary of State should issue regulations at least once a year. In addition, those regulations should be shown within an adequate timeframe of about two months to the Select Committee, presumably before they pass through the affirmative or negative procedure. This issue is quite close to the amendment addressed at the beginning of our proceedings by the noble Lord, Lord Hennessy. Members in the Chamber will remember that the noble Lord raised the issue within the context of our discussions on constitutional matters when he suggested that any regulations should be subjected to scrutiny by the Select Committee before proceeding to either the affirmative or the negative procedure.

Quite simply, the reason for this, which I think we all recognise, especially those of us who served for some time in another place, is that the negative procedure is extremely weak. Unless one or two Members of Parliament are particularly concerned about a matter, the regulations pass through with not much more than a nod from the House of Commons. In the case even of the affirmative procedure, unless one can organise a substantial group of people who are deeply concerned about the regulation, debates are not profound. Little scrutiny is offered and very often the procedure is little more than routine.

I am not so concerned about the first part of Amendment 38. I do not think that one should necessarily hold the Secretary of State to having to produce regulations annually, but I am very interested in the second part, which refers to passing it to the Select Committee for scrutiny, presumably of its merits, before it passes on to the fixed procedures. There is of course a fairly close parallel with the Select Committee on the Merits of Statutory Instruments as distinct from the older Select Committee on the vires of statutory instruments.

This is an interesting idea. I am one of those convinced that it is important to strengthen parliamentary accountability, not only on health but across the whole front. Therefore, Amendment 38 is well worth consideration. I hope that the Government will consider it carefully because it would be a substantial and interesting step forward. It would enable the regulation to be looked at carefully instead of in effect just being passed on the nod.

Amendment 43 is about the mandate, to which the noble Lord, Lord Hunt, has already referred. We on these Benches see the mandate as a first-class way for the Secretary of State to indicate his most important priorities for the health service for the coming year or so. As such, we put considerable weight on it. The issue that I should like simply to underline is that the role of the mandate is so important that I hope that in it the Secretary of State would be able to address the known priorities of the Bill, including such issues as the narrowing of inequalities and the proper provision of care for the elderly and those who are chronically sick. The mandate could be a very important instrument for setting before the House, and more widely the public, the goals that the Secretary of State hopes the health system would be able to prioritise.

Finally, Amendment 49 is also in the names of the noble Lords, Lord Warner and Lord Patel, both of whom are unable to be here as late as this. They have asked me to apologise on their behalf. The noble Lord, Lord Warner, is particularly interested in this amendment, which sets out in considerable detail the need for audited accounts and for the careful comparison of those accounts for the levels of performance and for comparison with one another. Given his substantial experience in the field of accountability for health issues, this deserves careful consideration. It would at least enable us to be closely concerned with differential performance in the health service and allow people to make a good judgment of the quality of the care being given. I therefore hope that the Government will look sympathetically at Amendment 49.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Wednesday 8th February 2012 Lords Chamber

[Baroness Meacher]

My Lords, I support this amendment very strongly and shall speak extremely briefly. Others have spoken most eloquently and very much made the case. My fear, too, is that the Minister will regard it as unnecessary. I have absolutely no doubt at all about the Minister’s commitment to mental health, but I believe that this is necessary because of the context in which the amendment is being posed—in other words, the Bill itself. What I mean is that the Bill is designed more than anything else to introduce privatisation of the NHS—slowly, slowly. It will not be done overnight, but in 10 years’ time we can be sure that a substantial proportion of our NHS will in fact be in private hands. If we look across the world to the US, Germany and other countries, we find that privatised health services do not support mental health to the degree that we in the NHS have supported it in the past. That is the most fundamental argument in my view. We have to protect our mental health services, albeit that they have been a Cinderella relative to the acute sector, but not to the degree that mental health services are Cinderellas in other countries where private health dominates.

That is my most important point. The only other part of the context is that the Bill will do nothing to make the changes that we need in the NHS, such as closures of redundant acute hospitals and redundant acute departments. I hope that this Government, unlike many previous Governments of whatever hue, will take the leadership role and show that they support mental health. I appeal to the Minister not to say that this is unnecessary. I appeal to him to agree that it is necessary and to give and show the Government’s commitment to equality of parity of mental health and physical health in this country.

[Baroness Williams of Crosby]

My Lords, my noble friend Lord Alderdice made the strong point that in the real world mental health is not regarded as being on all fours with physical health. For the reasons presented by my noble friend Lord Carlile and others, clearly in the real world mental health is often hidden. It is often an issue that people do not freely address and it is vital that we send a clear signal from this House that mental health is absolutely equivalent in significance and importance to physical health, and that we believe that.

I shall briefly say what has already been said. Will the Minister at the very least consider taking this debate back and looking at whether there could be an agreed amendment that would meet his difficulties? There may be drafting difficulties, but it would not in any way resile from the statement that this House believes that mental health is vital and we want it on the face of the Bill. I plead with him to consider doing that.

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[Baroness Williams of Crosby]

My Lords, perhaps I may respond very briefly. The real argument that we should be having is almost certainly on the next group of amendments, and I have no intention of taking away from that debate in which, as we know, the noble Baronesses, Lady Jay and Lady Thornton, and other noble Lords—although unfortunately not my noble and learned friend Lord Mackay today—will take part. It is an important debate that symbolises for me something of crucial significance, and that is that in this House we have moved towards all-party agreement on the constitutional underpinning of the National Health Service; that is a great achievement.

I shall not take further from what the noble Baroness, Lady Jay, will want to say—except that perhaps I shall follow her on this issue—beyond saying that I am deeply saddened that over the past day or two we have seen what I believe to have been a far-reaching and radical attempt in this House to try to present an all-party consensual underpinning for the National Health Service being turned into what one can only describe as the most petty of political rows whose seeming intention is to try to acquire political balance for one side or the other. That is a great shame.

I think that many of us believe that the wording which has been accomplished—although I note the commitment of the noble Baroness, Lady Thornton, to the word “provide”—means that we can be satisfied with the constitutional group. We do not need to change the wording and what is now set out in the Bill after this long exercise is in fact legally watertight. I say that because some of the most distinguished lawyers in this House were part of the drafting process, including on the Labour side the noble and learned Baroness, Lady Scotland. On the Conservative side we had the outstanding figure of the former Lord Chancellor, my noble and learned friend Lord Mackay of Clashfern, and on my side, among others, my noble friends Lord Clement-Jones and Lord Marks of Henley-on-Thames. All these lawyers put their heads together in order to establish a basis on which we could agree, and I would suggest to the noble Baroness, Lady Thornton, for whom I have a great deal of respect, that if the word “provide” did not surface during that exercise, it is because it is to a great extent at odds with the facts at the present time as to who actually provides services for the NHS, and of course that has changed radically in recent years. It has changed radically because of steps taken not only by the present Government but also by the previous Government, when a great deal of provision came from newly established elements in the private sector, including intermediate treatment centres. Efforts were made to bring about an extensive network of hospitals to look at how far private treatment could be accepted and it was done on the basis of trying to bring new providers on the scene, which the noble Lord, Lord Darzi, among others, has talked about. I am probably one of those who are more “old-fashioned” in their view of the privatisation of the NHS, which I certainly would not support. That is not the same as talking about the competitive providers who under the previous Government and the present one have made some contribution to the services of the NHS.

I say with great respect to the noble Baroness that this pair of amendments is unnecessary. I think that, legally, the existing wording now stands up and has the precious boon of having been supported by all parties in this House and those who sit on the independent Cross Benches. We should therefore move on to the next group of amendments and be able, among other things, to celebrate our achievement, which I hope will enable the National Health Service to flourish and survive into the rest of this century.

[Earl Howe]

My Lords, as my noble friend has correctly reminded us, the next debate will give us the opportunity to discuss the package of amendments designed to clarify the Secretary of State’s accountability for the health service. I recently completed a series of meetings with Peers from across the House to understand their concerns about this and related issues. Thanks to the efforts of so many here today, including the noble Baroness, Lady Thornton, I am pleased to say that we have sufficient consensus to table a series of amendments on this matter. I very much look forward to discussing them when we reach subsequent groups.

Amendments 3 and 4, tabled by the noble Baroness, Lady Thornton, seek to reinstate the duty to provide. I do not wish to dwell too long on what I have said on previous occasions, but the noble Baroness will be aware that we are retaining the wording of the NHS Act 1946, where appropriate. For example, the Secretary of State retains his duty to,

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

and his duty to,

“secure that services are provided”.

The reason for our removing the 1946 duty on the Secretary of State to provide services himself is that it fails to reflect the reality of the way that NHS services are delivered. In general and for many years, the Secretary of State has not himself exercised functions of providing or commissioning services. The functions are delegated to SHAs and PCTs. Under the Bill, however, this function will be conferred directly on a dedicated NHS Commissioning Board and CCGs.

Indeed, as my noble and learned friend Lord Mackay of Clashfern has pointed out previously, there has never been a straightforward duty to provide services. The requirement was framed as a duty to,

“provide or secure the … provision of”,

services. In practice, Ministers or the NHS bodies responsible for exercising the Secretary of State’s functions have usually exercised the second option, securing the provision, rather than the first, actually providing. The Secretary of State—that is, the Department of Health—has not provided NHS services directly for many years. Our policy is that the Secretary of State should neither provide nor commission NHS services.

It is clear from these amendments that the Opposition are harking back to a centralist, top-down approach. They sometimes say that they want clinical commissioners, but these amendments contradict that. They would not create a system of clear responsibility but instead one where Richmond House was always right. That model has been tried to the point of exhaustion and has been found wanting. In contrast, the Bill establishes a framework in which the Secretary of State no longer has the powers to provide or commission NHS services. Instead, those functions are conferred on other bodies in the system. An amendment to Clause 1 to impose a duty on the Secretary of State to provide services—or a duty to exercise his functions so as to provide them—is simply not consistent with that framework.

When this issue has been debated previously, one of the main arguments against losing the duty to provide was that it would result in reduced accountability to Parliament for provision. Although that has never been our intention, we have, as I said, tabled amendments to put beyond doubt the matter of ministerial accountability. Given that the Secretary of State does not provide services directly, and that the amendments we will debate shortly clarify beyond doubt the Secretary of State’s continued accountability to Parliament, it is not clear what an amendment to reinstate the duty to provide would achieve in practice.

If these amendments are about ensuring that the Secretary of State takes the steps required to secure the proper provision of NHS services, I simply reassure the noble Baroness that the Bill already does this. It requires the Secretary of State to,

“exercise the functions conferred by this Act so as to secure that services are provided”.

That is a strong and onerous duty, sufficient to ensure that the Secretary of State discharges his responsibility for the NHS.

In explaining these amendments, the noble Baroness repeated her call for the Bill to be withdrawn on the grounds that nobody supports it. I acknowledge that there are opponents of the Bill but she must also acknowledge that many in the medical community and in the wider public support our reform programme. We know that clearly from the listening exercise last year when many thousands of people contributed their views. Those views about the principles of what we are trying to achieve came through loud and clear. In the main, the concerns revolved around implementation. We believe that we have addressed those concerns in amendments to the Bill and in other announcements that we have made that are non-legislative in nature. We continue to believe that our plans for modernisation are essential if we are to put the NHS on a sustainable long-term footing. I will explain a few ways in which that is true, and will try to do so in clear, layman’s language without resorting to departmental technical speak.

Without the Bill, Ministers would remain free to continue to micromanage the NHS. There would be no legally enforceable duties to tackle health inequalities as the Bill introduces such duties for the first time in this country. There would be no legally enforceable duties on quality improvement because it embeds quality improvement throughout the system. There would be no duties on NHS organisations to involve patients in decisions about their care. Failing organisations would continue to be propped up using taxpayers’ money—the Bill tackles that problem in a creative way. Governments would be able to prioritise the private sector over the NHS—the Bill ensures that such behaviour is prohibited. Patients would continue to lack the means to hold the NHS to account because the Bill gives patients real power by establishing HealthWatch so that the interests of patients and the public can be championed throughout the NHS. Withdrawing the Bill would cause disruption and chaos at a time that the NHS most needs certainty about the future. As has been said today, the NHS is already in a state of change. That cannot be sustained indefinitely because it puts additional strain on management capacity and creates additional cost.

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[Baroness Williams of Crosby]

My Lords, may I, too, say a word or two about this brilliant process? It is important to say that at the moment we are discussing Amendment 5, for which the noble Baroness, Lady Jay, has a large and commendable share of responsibility. However, the constitutional agreement that we have reached goes a great deal further, embracing Amendment 6 and the amendments to Clauses 4 and 12, which we will discuss a little later.

We are discussing much more than even Clause 5. A whole range of substantial constitutional amendments go a long way to sustaining what the noble Lord, Lord Hennessy, expressed wonderfully when he spoke about this constitutional move a long time ago. In particular, the amendments put the concept of the NHS constitution at the centre of the future of the NHS. At Second Reading, the noble Lord, Lord Hennessy, used a phrase about the 1946 Act that I thought was absolutely right. He said that it was as close to institutionalised altruism as we have ever come. “Institutionalised altruism” is a wonderful phrase. It reminded me—my memory goes back this far—of another phrase used by another great warrior for the NHS, Professor Richard Titmuss of the London School of Economics. He gave a book that he wrote about blood donation the wonderful title The Gift Relationship.

It is appropriate to say to those who talk about society that a good society must be underpinned by the concept of mutual altruism within it. Nothing represents that more clearly than the National Health Service has done. I very much hope that all those who share that view will, within their own parties, make it clear that there is a greater responsibility on us than to indulge in party back-slapping and bickering; and that is to make sure, between all of us, that the NHS thrives and looks after the health and care of the people of England, and of Britain more widely.

However, having said that, I want to say two further things. As the follow-up report of the Constitution Committee indicates, there was a distinct gap following the letter that was originally sent by the noble Earl, Lord Howe, about the constitutional changes. Subsequently, on 2 November, when we were in the early stages of Committee, there was a substantial shift by the noble Earl and the department, away from a somewhat small-scale response to this much more generous and widespread response on all the constitutional issues, some of which we have still to debate later this evening. The reason why it was so important—and the reason why the House of Lords should not sell itself short—is that in that gap between 10 October and 2 November, the very imaginative House of Lords moots were held, with all Peers invited, led by the noble Earl, Lord Howe. These shifted the whole situation further towards the concept of a constitutionally shared settlement. That was a contribution by many Members of this House of all parties and, including the Cross-Benchers, of none. It was significant. It expressed the serious attempt to reach a conclusion that was based on consensus in this House. I hope that consensus will last.

In passing, I mention that we need to look at the whole package to see just what an amazingly substantial and imaginative idea it is. Although we will no doubt go on to argue, as we should, about the issues that remain out there—such as competition, conflicts of interest and others on which we have strongly held views—we should, in sitting down this evening, be very pleased to be able to say that we have achieved this much with the great help of the Constitution Committee and others. Those who took part have every reason to feel that they have been part of a substantial experiment that I hope will be followed further in Parliament, not least in this House.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Wednesday 21st December 2011 Lords Chamber

[Baroness Wheeler]

My Lords, in responding to this group I should like first to raise on behalf of my noble friend Lady Thornton the issue of the register of risks on the Health and Social Care Bill. I also apologise on her behalf for not raising the matter at the appropriate time.

In the debate on the Motion of Regret on 7 December several noble Lords referred to the starting point of Report being timed so that the appeal on the Information Commissioner’s report will have been completed and the House will know the result. The Minister himself said:

“I am as keen as anyone to see the matter speedily resolved”.—[Official Report, 7/12/11; col. 736.]

The usual channels are, of course, discussing the next stage of the Bill. We agree with the noble Baroness, Lady Williams, about the risk of this issue not being resolved in time for the next stage. On 7 December, she said:

“I fear that it may hang like a dark shadow over the whole of the Report stage”.—[Official Report, 7/12/11; col. 726.]

In the same debate the noble and learned Lord, Lord Mackay of Clashfern, said:

“I believe the solution proposed by my noble friend”—

the noble Baroness, Lady Williams—

“is the best one … that an expedited decision should be sought from the tribunal”.—[Official Report, 7/11/12; col. 731.]

I have asked my noble friend the opposition Chief Whip, and appeal to the usual channels, not to finalise the arrangements for Report and the timetable until the House has an answer to the question. Our understanding is that a normal timescale, if we are lucky, might mean that we will have a tribunal decision in late February. The Government will then have the option of appealing to the Upper Tribunal. Does the Secretary of State intend to seek expedition of this process? What steps have Ministers taken to ensure that the appeal is heard as early as possible? The Minister can, if he wishes, respond in writing to my noble friend, though obviously he will need to do it as soon as possible.

I shall also speak briefly to this group of amendments generally. I support the amendments tabled by my noble friend Lord Warner and the noble Lord, Lord Patel, all of which seek to strengthen the Secretary of State’s duty to prepare and publish information standards governing the collection, processing and dissemination of information on the provision of NHS health and adult social care. I know that the Minister is in favour of having light-touch definitions in the Bill, but we strongly support being more specific about what the information standard is to be, what it is for and what it should include.

The definition proposed in Amendment 347A underlines that it must include,

“the efficient and effective collection … of information that”—

most importantly—

“benefits the commissioning and provision of health and adult social care services”.

It is equally important to specify that the standard includes the provision of information that will help improve public health and well-being and assist the public’s ability to make informed choices about care and treatment. We also support Amendment 347B, from the noble Lord, Lord Low, which seeks to ensure that the,

“information standard must include a requirement to record patients’ preferred reading format: standard print, large print, audio or Braille”.

We support the general aim of this part of the Bill: to place the current health and social care information centre on a firmer statutory footing, replacing the current special health authority. We have a number of issues to raise, and will do so in the next group.

[Baroness Williams of Crosby]

In view of the reference to me by the noble Baroness, Lady Wheeler, perhaps I may say a few words before the debate proceeds and the Minister replies. The Committee showed good sense—and the noble Baroness, Lady Thornton, was good enough not to press the matter to a vote—over the information tribunal’s decision on the risk register. At the time, it was sensible to undertake to withhold our judgment until there had been an opportunity for the tribunal to consider the Department of Health’s appeal. However, the intervention by the noble and learned Lord, Lord Mackay—as the noble Baroness, Lady Wheeler, indicated—clearly suggests that it would be possible, by a mutual approach from the Government and the Opposition, to speed up the processes under which the appeal was held.

Given that the government Chief Whip agreed that the matter should not come before the House on Report before the end of January, that provided an additional three weeks—a reasonable period of time—to try to persuade the tribunal to act reasonably rapidly. The noble and learned Lord, Lord Mackay of Clashfern, was good enough to say that in some cases which he knew of, the tribunal had been able to deal with an issue in as little as three or four days. That seems very apposite, since it is hard to think of anything much more constitutionally important than the Report stage of a Bill of this kind, and there should be no question of the debate on Report taking place before there is an outcome to the tribunal appeal.

This House recognised that it was proper that the law should take its normal course. We therefore withheld any attempt to try to press it by, for example, insisting on a vote. I think that that was to the credit of the Official Opposition. However, it is quite clear that the decision is very germane to the Report stage. It is highly relevant. All of us accept that if the appeal is upheld then we will be bound by it in a proper course of law, appropriate to all people who come before the tribunal. However, we also all recognise that it lies upon the Government to endeavour to reach a decision as quickly as possible. I am sure that the Opposition, and certainly we on these Benches, would strongly support an approach of that kind.

I would simply plead with the Minister, who has been so reasonable to the House on so many matters, to recognise that there is a real difficulty if the appeal, not having been heard, hangs over Report, and as a result leaves people able to say, “But if the appeal had gone the other way, X and Y would follow”. If the Department of Health—whose record is patchy, to say the least, as the noble Lord, Lord Owen, has rather sharply pointed out—really cares about information being made available, or at the least upholding the law that makes the tribunal make a final decision, it really is crucial that, at the end of this Committee stage, we hear from the Minister whether steps are being taken to accelerate the process as much as possible to enable Report to start properly at the end of January. I would simply urge that attention might also be paid to the further evidence provided by the noble Lord, Lord Owen, which, to say the least, is somewhat disturbing.

[Lord Owen]

May I just make a slight correction? I said that the debate on the impact of the European Union on healthcare in the United Kingdom in the name of the noble Lord, Lord Kakkar, will be held on 10 January. It will actually be held on 11 January, as the dinner-break business. I want to be quite clear about the timing of that important debate, which at the moment is limited to a maximum of one hour.

While I am on my feet, I want to stress that every word that the noble Baroness, Lady Williams, has said is wholly appropriate. This question of risk assessment is central to the judgments which will have to be made at Report. I hope very much that we do not proceed to Report until the tribunal's judgment has been heard.

--- Later in debate ---

[Lord Mawhinney]

My Lords, at the risk of irritating my noble friend, I should like to make a brief comment about this matter. I assure him that it does not fall into the category of wishing to irritate him. If there is any virtue, it is a virtue of consistency on my part.

Clause 247 again deals with the interplay between the Secretary of State and the NHS board. We have already clearly established in this Committee that the Government wish to give the board a freedom from the overall influence of the Secretary of State that would mark a fundamental change in the way that the NHS has been conducting its business over many years.

Subsection (1) of the clause gives powers to both the Secretary of State and the board, and either can exercise them. I look down to subsections (3) and (4) and see that both the Secretary of State and the board can exercise powers in relation to the provision of health services. I wondered whether this was a belated recognition regarding the board for those of us who have been encouraging our noble friend to give primacy to the Secretary of State and maybe a stepping stone towards returning to the traditional position. On the other hand, if it is a stepping stone, and given the fact that until we hear from my noble friend there is not a lot of clarity as to what is intended here, these provisions may simply confuse the matter, not clarify it.

I am old-fashioned, as my noble friend knows, and I think that the Minister is ultimately responsible for the area for which Her Majesty has called him or her to be responsible. The Secretary of State could delegate powers to the board, but that is not the way that the Government have chosen to interpret this. All of us are grateful to my noble friend for the fact that he has been so willing to review this whole issue and to come back with new proposals on Report. I cannot be the only Member of your Lordships' House who looks forward to seeing what those proposals contain and measure them against the views that have been expressed on this subject over some months now.

However, since we moved away from the first few clauses, there have been examples of this ambiguity and potential conflict between the Secretary of State and the board running right through the Bill. I have tested my noble friend’s patience on a number of occasions by drawing his attention to various examples of that as we have gone through the Bill. I draw his attention to what is but another example of the importance of getting this relationship right—and my noble friend knows what I believe is right and I know what he believes is right. We are both grateful for the opportunity to review that before Report. I should therefore be interested to hear what my noble friend thinks is actually meant, or intended to be meant, by this clause.

Finally, because we have already established that the risk register is legitimate to discuss under Clause 247, I share the view that it would be very helpful to the Committee to have a definitive decision before Report gets under way. In keeping with what my noble friend Lord Newton of Braintree just said, were the Government to lose and to decide to pursue the matter to the next stage, I hope that the Minister will not think that such a decision would be without friends in this House. I cannot be the only former Minister who has conducted examination of potential legislation on the basis of “What if?”.

[Baroness Williams of Crosby]

I underline the point made by the noble Lord, Lord Mawhinney, because the whole area of information is a crucial aspect of the constitutional issues about accountability. In particular, the clauses we are discussing are expressed in complicated ways that are difficult to understand. For example, I find it hard to be clear that personal and identifiable data will not fall within the terms of the clauses, because the phrases “other persons”, “other bodies”, and so forth are scattered throughout the clauses. That disturbs me. Perhaps the Minister could add a little on data protection legislation and address the important point raised by the noble Lord, Lord Mawhinney, about this aspect of the Bill, which of course relates to several others besides.

[Earl Howe]

My Lords, I hope that I can satisfy my noble friends on these issues. If my noble friend Lord Mawhinney is old-fashioned, we are all the more fortunate for that. I feel a little old-fashioned myself, so I understand where he is coming from. He will appreciate that the clause provides powers for the Secretary of State and the NHS Commissioning Board to prepare and publish information standards. As we have debated, standards are important for a number of reasons. They can help ensure that information is of high quality, that it is comparable and that confidential information can be stored and transferred safely and securely.

Our aim is for the Secretary of State to set information standards in respect of public health and adult social care services and the board to set standards in respect of NHS services. Indeed, any organisation providing publicly funded health or social care services in England would be required to have regard to those information standards. When the standard is published, there would be accompanying guidance on how to implement it.

As I said, the Bill makes clear that responsibility for preparing and publishing information standards will sit with the Secretary of State or the Commissioning Board. The process that will be followed when the need for a standard is identified is currently being worked through, but we envisage that, in practice, the NHS Commissioning Board will set the standards for the NHS. We are mindful, however, that the Secretary of State is responsible for the health and social care system as a whole. Therefore, it is right that he has the overarching power for both. It could well be that, within the mandate that he sets the board, information standards will feature as something it is tasked to expedite. Of course there is a need to ensure that standards are consistent across the sectors to which they apply.

We are about to move to a group of amendments where I would be happy to address the questions of my noble friend Lady Williams on confidentiality. If she will allow me to do that, I would be happy to follow that course.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, I am grateful to the Committee for allowing this question of whether Clause 285 should stand part of the Bill to be taken today. Previous commitments from the Minister have outlined that the Secretary of State’s annual report is an important mechanism through which he will account for the system, and the Bill sets out extensive powers of intervention in the case of failure, which are essential if Ministers are able to retain ultimate accountability for the health service. However, the Secretary of State’s duty of keeping performance under review applies only to national arm’s-length bodies, although we are also debating—and will be, I am sure, on Report—how it might also refer to the clinical commissioning groups.

The aim of this debate is to explore what will happen if Monitor and the CQC do not co-operate. I am simply seeking some clarification from the Minister in response to certain questions. The Bill sets out a formal duty of co-operation between these two bodies—but what practical actions will be taken if this does not happen? On 7 December, the noble Earl, Lord Howe, stated at the Dispatch Box that the Secretary of State would be able to write formally and publicly to organisations if the duty to co-operate is being breached. How will the Secretary of State monitor how effectively Monitor and the CQC are working together? Will they report on how well they have worked together and where they seek to improve their working relationships in the future? What will trigger the Secretary of State to intervene? Can the Secretary of State take responsibility for any services that have been responsible for triggering a dispute?

The Minister also stated that:

“If the breach is significant, sustained and having a detrimental effect on the NHS, the Secretary of State will have a further ability to lay an order specifying that the organisation should take certain actions only with the approval of another specified body, other than the Secretary of State himself”.—[Official Report, 7/12/11; col. 747.]

Will the Government please give a definition of the meaning of,

“significant, sustained and having a detrimental effect on the NHS”,

and explain what this will mean in practice? In subsection (7) there is mention of arbitration, but who will the arbitrator be in the event of a dispute? Is that the Secretary of State?

There may be examples of work between CQC and Monitor that may not be considered significant breaches of their duty to co-operate but may not be best practice in integrated working. This is a particular risk for complex work such as setting the tariff, especially for care pathways for complex conditions that take into account multiple providers. How will the Government ensure that these two bodies do not meet just bare minimum standards but continue to improve the quality of their integrated working, innovate to find new ways of co-operating and share good practice throughout their organisations, so that integrated working is strategically built in at their every level?

There is a particular concern about the effect on long-term conditions if Monitor and the CQC do not work seamlessly together. We have had debates already about the importance of care being integrated to treat patients with long-term conditions. The Secretary of State must be proactive in ensuring that both Monitor and the CQC themselves work proactively to facilitate such integrated working. I would be grateful for some further elaboration on how this will be achieved. I hope that the Minister will be able to assure the Committee that Monitor and the CQC will be required to report to the Secretary of State on how they have collaborated, including an evaluation of how they have co-operated, and that they will be given goals by the Department of Health on how to improve continuously in such working.

When considering potential failure that is recognised by one party but not the other, who will have the power to intervene? This becomes particularly important as Monitor has powers to intervene in failure but not, as I understand it, at the point when an organisation is at risk of working in a way that may result in failure—in other words, in a pre-failure state. At that point, Monitor does not have powers to intervene. I would be grateful if the Minister were able to answer at least some of my questions today. I realise that I have posed a lot of questions, and that some may come better in writing later.

[Baroness Williams of Crosby]

My Lords, I follow the noble Baroness, Lady Finlay, and very much share her questions—not least about who will be the arbiter in a situation where co-operation cannot be reached between two of the major bodies involved in responsibilities for the health service. I would add just a couple of things. I very much apologise to the Committee for the fact that, when Amendments 350 and 351 were reached—we were already going through at a rattling pace—I was out of the Chamber so did not move those two amendments. I will not refer back to them or move them now; it would obviously be inappropriate to do so. However, I stress the concern that I have about Clause 285.

The trouble is that there is a very long and elaborate procedure under which, if co-operation fails between the board and Monitor, they have then to exchange views with one another and tell each other what their opinions are, and so forth. They and the Secretary of State then have to make statements of their opinions. This seems most unfortunate, because co-operation and integration are at the very heart of what all of us have been saying in Committee are absolutely crucial elements in the attempt to deal with the problems that confront the NHS, and the health service more generally, at the moment. Therefore, to have a procedure which is as elaborate and which has as many stages in it as this one—with, in many ways, the chances to fuel rather than heal any difference between them—seems not to be a sensible clause at all.

Our amendments simply suggested that it would be much better, at a certain point when we were in what the noble Baroness, Lady Finlay, described as the pre-failure period, to allow the Secretary of State to come into the picture. This goes back to what the noble Lord, Lord Mawhinney, was talking about earlier. We are not talking about an immediate intervention. We understand the need to try to get agreement and to decentralise decision-making but in the end, if they cannot agree on how to co-operate and resolve that, either there has to be an arbiter whose voice is such that he or she carries real authority or, since we do not know who that arbiter is, in our view the proper arbiter is indeed the Secretary of State, responsible as he is to Parliament and to the public. Therefore I strongly support the noble Baroness, Lady Finlay. I am very grateful for what she has said. I hope we can hear from the Minister who will be the arbiter, and whether there might be a more rapid and effective way of dealing with a failure of co-operation. I put on record that I think this is absolutely crucial to what this is all about. We need to be able to deal with it reasonably urgently and quickly.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Monday 19th December 2011 Lords Chamber

[Lord Warner]

My Lords, I shall speak also to Amendments 335 and 336, which I degrouped from the previous grouping.

Amendments 332 and 335 provide an opportunity to press the Government again on securing more precision in this Bill about what we mean by integration. The integration that means most to patients and service users and their carers is the integration of service delivery. That is what Amendment 332 tries to bring out, by replacing reference to people working “in an integrated manner” with wording that ensures that they work in,

“a manner that integrates the delivery of services to individuals”.

Amendment 335 has another go at trying to persuade the Government to include in this Bill a definition of integration. I find it very odd that the Government go to all the trouble in Clause 192—as elsewhere in the Bill—of providing definitions of health services, health-related services and social care services, but will nowhere provide a definition of integration even though the term is liberally sprinkled throughout the Bill. I congratulate them on that liberal sprinkling, and I think that the intentions are very good. However, using the term “integration” in a variety of ways, without being clear what the important meaning of it is to patients, promises a lot but risks ensuring that there is a likelihood of delivering very little change that actually benefits individuals or helps break down the barriers between health and social care. My particular concern is that some people will take away from this Bill that they have met the needs of integration by organisational integration rather than focusing on the thing which matters to individuals, which is the integration of service delivery.

I hope that the Minister will think further about inserting a definition of integration in the Bill, to give it more precision. I would be happy, as I am sure other noble Lords across the Benches would be, to help him to try to secure a definition. I do not claim that getting that definition right is easy, but I think that while the Bill is in this House it is worth the trouble of trying to get a more precise definition of the integration that would really benefit individuals in the area of service delivery.

Amendment 336 also seeks to push integration, but in a very specific way. It proposes that a local authority with a health and well-being board may approach the national Commissioning Board about assuming,

“some or all of the functions (and associated funding) of a clinical commissioning group where such a group agrees that this is in the best interests of patients”,

particularly if it improves integration. The Government are very keen to argue that people at local level should be able to shape their local arrangements for commissioning and providing services. I have a great deal of sympathy with that approach. This amendment would enable clinical commissioning groups and health and well-being boards to come together to form a single body for commissioning services in accordance with a joint service needs assessment. Given the variation in the size of clinical commissioning groups, there may be some large ones that would like to share staff and reduce overheads by amalgamating their activities in the way that this amendment permits. In addition, some of us believe that it will not be possible to sustain 250 or more clinical commissioning groups, which might then raise the issue of merging those groups and possibly going further and merging the merged with a health and well-being board as well.

There is no compulsion or pressure in this amendment. It merely enables clinical commissioning groups and health and well-being boards to come together, integrate their activities, share priorities and work closely together in the way that public money is spent, particularly in relation to integrating services across the NHS and local government boundaries. I hope that, in the spirit of local decision-making, a permissive but non-mandatory power of this kind could be inserted into the Bill.

I would very much like to hear the Minister’s views on this probing amendment and whether he sees merit in it. I shall be returning to the issue of integration, and a definition of it, on Report. I think there is support for this across many parts of the House. I beg to move.

[Baroness Williams of Crosby]

My Lords, we on these Benches have strongly supported the many references to integration that have been made in Committee, and it is obviously central to the whole of the attempt to deal with the major problems that confront us all over the next few years. However, I completely agree with the noble Lord, Lord Warner, that it is not very clear what this is, other than a nice word. The more flesh that we can put on it, the better all round, and the clearer the position of local authorities will be.

Many local authorities have of course already delivered, on behalf of the primary care trusts, the kind of approach that the noble Lord, Lord Warner, has been advocating, but the situation has to go a great deal further. We are particularly attracted by his Amendment 336 because it is very clear and precise in what it suggests about the relationship between CCGs, particularly those who wish to devolve some of their responsibilities, or in some cases are unable to deliver on those responsibilities.

I would like to say, from these Benches, on behalf of my noble friend Lady Jolly and myself, is that it is crucial that at an early stage health and well-being boards are able to mount mechanisms for early decision-making. If a CCG is unable to meet part of its responsibilities—and that may happen at relatively short notice—it is critical that the health and well-being boards have structures within their own management which would enable them to deal with the issues rapidly. It would be no good at all if there is a long interregnum when services to patients are put at risk.

I would advocate, in addition to what the noble Lord, Lord Warner, has said, that the new health and well-being boards should make an early approach to seeing how they would deal with what might be, if not an emergency, at least the beginnings of an emergency in the particular aspect of what the CCGs are proposing to deliver.

[Baroness Murphy]

My Lords, I have added my name to these amendments. Like the noble Lord, Lord Warner, I have come back time and again to this issue of what we really mean by integration, and what it will mean for patients, clients, and people living in the community. It must be a seamless service. They do not mind, of course, where the services come from, but it has to be utterly without gaps. It has to operate 365 days a year, year after year after year, if it is to work.

It seems to me that these health and well-being boards have two huge areas that they will have to work in: the public health and well-being functions around housing, the health of children, and the education of children, for example; and the delivery of services. These two arms are quite difficult to meld together in any joint planning arrangements. The joint strategic needs assessment will try to produce these two focused blocs, but it is actually quite difficult. I am sure I am not the only alumnus, or graduate, or perhaps I should say survivor, of joint planning arrangements. I am even a survivor of a health action zone. I know how difficult it is, and how many hours of work go into properly well-functioning joint planning arrangements, which can commit funds. It takes hours of time and extraordinary leadership from health and local authorities to make them work properly.

I am not sure that I think these health and well-being boards are an inspiration, as the noble Baroness, Lady Cumberlege, does. They are a bit of an improvement on what went before, but to work properly they are going to have to work very hard locally to get it right, and get the structures right. I think it would help enormously if they were working towards something real. For me the real thing would be the integration of the working of health and social care, both at the patient level and at the public health and well-being end of the population. Our Amendment 336 provides one option for a way of working together—an option that local organisations might want to take up. It is an idea, and I am sure that we can think of many others that would also fit the bill. I want these boards to be real and their functions to be made practically useful on the ground, so I support these amendments.

--- Later in debate ---

[Earl Howe]

My Lords, we have to give credit to people on the ground to be the professionals that we know them to be. Integrated working can take many forms, as we have discussed quite often in Committee. I will not rehearse the various manifestations of integration. Once we have mandated the duties in the Bill and issued statutory guidance on what good practice looks like, I really think that it will be up to people on the ground to decide how best to set about fulfilling the duties and expectations placed on them.

[Baroness Williams of Crosby]

I will pursue for a minute mechanisms for an early decision. I do so because the health and well-being boards will obviously be new and will be moving into a relatively new structure in their relationships with the medical and clinical CCGs, and they might not realise that this could happen rather quickly. No one is thinking of laying down the law, but a mechanism under which they are reminded that this could arise quite suddenly at an early stage and that they therefore need a structure that enables them to react quickly is an important feature of what the noble Lord, Lord Warner, was arguing.

[Earl Howe]

This is exactly why we have established the early implementer health and well-being boards. These cover virtually the entire country; a very small number are not yet in existence. I can tell my noble friend that local authorities have seized this opportunity with alacrity and are getting to grips with just the kind of issues that she has in mind.

We have a lead-up time available to enable the boards to consolidate the learning that is undoubtedly going on and the dialogue that is taking place with the pathfinder clinical commissioning groups. We are supporting that process from the centre. I hope and believe that by the time the health and well-being boards go live they will be in a very good position to hit the ground running.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, this Bill in vast part concerns England only. This amendment concerns both England and Wales. I have tabled it to try to clarify an area in the role of the ombudsman which is currently not clear. Having spoken to the ombudsman in Wales at length about this, and discussed it with the ombudsman in England, with the emergence of any qualified provider and a range of licensed providers in this system, it seems that there is a need to clarify the role of the ombudsman, to make sure that patients have a final port of call when the complaints system has failed them.

I will quote from the Complaints and Litigation report of the House of Commons Health Committee from the previous Session. It states:

“Many people see the role of the Ombudsman as a general appeals process for the complaints system, but the remit under the Health Service Commissioners Act is much narrower than that. The Committee is of the view that a complainant whose complaint is rejected by the service provider should be able to seek independent review. The legal and operational framework of the Ombudsman’s office should be reviewed to make it effective for this wider purpose”.

The Health Service Commissioners Act 1993 set out the principle that the ombudsman should be able to investigate an issue if the provider was providing services,

“under arrangements with health service bodies or family health service providers”.

The Public Services Ombudsman for Wales was established in 2005, and also has a responsibility for cross-border work. Last year, however, there was an investigation into a children’s hospice in Wales which revealed the ombudsman’s difficulty when investigating an organisation that provides services for and on behalf of, and receives funding for providing services to, patients in an area but which does not fall under the NHS jurisdiction in any way, and simply has a contractual service-level agreement. The report from the ombudsman in Wales states:

“The Ombudsman does not have jurisdiction for the hospice and was unable to investigate Mr & Mrs A’s concerns about the hospice’s actions”.

It goes on to say:

“The Ombudsman commented on his lack of jurisdiction for the hospice, and that there was no other independent body able to investigate Mr & Mrs A’s concerns about the hospice. This is profoundly unsatisfactory. The Ombudsman asked the Welsh Assembly Government to consider what action it could take to bring the hospice into his jurisdiction”.

Hospices are just one area of provision. They are well known, and it is very unusual for there to be complaints in hospices. However, they do occur, and it seems that those using the services of any independent provider in such a way should have the same right of redress as if they were in an NHS facility. The purpose of the amendment is to simply clarify that wherever a patient is being treated, if the NHS has any interest whatever—if this patient is being treated as part of an NHS provision —it should come under the remit of the ombudsman to investigate should the ombudsman feel it is warranted.

I looked back through the report of the Health Service Ombudsman for England and noted that there were 325 complaints last year that did not fall into the remit because they were for privately funded healthcare. This amendment does not ask that the ombudsman’s report should necessarily cover privately funded healthcare. In all honesty, however, if somebody is receiving healthcare, however it is funded, and if that is part of our licensed, inspected and regulated system in this country, where it goes seriously wrong and those bringing a complaint feel it has not been handled satisfactorily, my own view is that we have a national duty to be able to investigate. In doing so, we may find that our inspection processes have failed and that our regulatory processes are not functioning as they should.

That is the background to what might seem a very simple amendment. I really hope the Government will look kindly on it, because having discussed it and its wording in detail with the ombudsman in Wales, I know that it is certainly supported there. I also know that it is not opposed by the ombudsman in England.

[Baroness Williams of Crosby]

My Lords, the combination of the noble Baroness, Lady Finlay, and the noble Lords, Lord Walton of Detchant and Lord Wigley, is a pretty powerful triad by any standards. I express my support for what the noble Baroness said. We have seen some remarkable work done by the ombudsman for England—who I think is retiring from her post—particularly in respect of the care of elderly people. It has been very important in giving the public a sense that they have access to the highest levels when they have a complaint.

My only concern about this amendment is that it is very important indeed that as far as possible complaints are dealt with by health and well-being boards locally, because very often local knowledge is crucial in understanding why something has gone badly wrong. I always think it is significant that the ombudsman for England has been most effective when she has written reports that cover an area. When it comes to a personal complaint, very often it is the local level which is the appropriate one to deal with it. More than that, very much part of the education and understanding that a health and well-being board can bring to the whole issue of patient responses and patient care in the NHS is that people should at least see the local level as the first point of complaint. Having said that, it is obviously important that there is a final, as it were, court of appeal —I do not mean that in a legal sense of the word —and that is what the ombudsman ought to be. Clearly he or she should be independent of any particular interest in the health service, and I agree with the noble Baroness, Lady Finlay, that it should apply across the board to all providers whether private, voluntary or within the NHS structure.

With those few words, I support the amendment and think it is an important one. However, I emphasise that the starting point should always be, wherever possible, at the local level, and that the ombudsman should be seen as the last and final resort.

[Baroness Wheeler]

My Lords, I support this amendment from the noble Baroness, Lady Finlay, and I am grateful to her for explaining its context and background so clearly. The Parliamentary and Health Service Ombudsman is currently excluded from investigating complaints about the health service in Wales, so this amendment will ensure that the role of the Public Services Ombudsman for Wales, in investigating complaints against local health boards, NHS trusts, GP services and community health councils in Wales, is recognised and included in this Bill.

Ensuring that the Public Services Ombudsman for Wales has the legal right to share complaints reports with people he or she considers appropriate is a minor but important amendment and safeguard. I look forward to the Minister’s response.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Thursday 15th December 2011 Lords Chamber

Moved by

[Baroness Williams of Crosby]

296: Clause 148, page 148, line 11, leave out subsection (2) and insert—
“(2) For paragraph 9(3) of that Schedule (requirement for at least one member of council governors to be appointed by PCT) substitute—
“(3) At least one member of the council of governors must be appointed by the NHS Commissioning Board.”.”

[Baroness Williams of Crosby]

I begin with an apology on behalf of my noble friend Lord Marks of Henley-on-Thames, who wants to explain to the House that he is unavoidably—

[Baroness Garden of Frognal]

With due apologies to my noble friend, it is very difficult to hear her when people are leaving the Chamber. I wonder if we might just wait for people to clear the Chamber as quickly and quietly as they can so that my noble friend may resume with her amendment.

[Baroness Williams of Crosby]

I thank my noble friend Lady Garden very much indeed for intervening. I would like to express the apologies of my noble friend Lord Marks of Henley-on-Thames for being unable to be here on this occasion. Unfortunately he has been taken ill and will probably not be in the House again before the Christmas Recess. He extends his apologies to the House and his deep regrets at being unable to be here to move this amendment. It is therefore my honour to do so on his behalf.

The first amendment amends paragraph 9(3) of Schedule 7 to the National Health Service Act 2006 to remove the requirement for a governor to be appointed by a PCT. The reason for governors being appointed by PCTs, of course, is that they were the key sub-national level of organisation under the previous National Health Service. The Act of 2006 therefore reflects that organisational structure. I submit to the House that in the new structure it is as important that the national Commissioning Board should be able to appoint at least one—and, one hopes, more—governors to the board because of the need for a clear link between the clinical commissioning groups and the boards of the foundation trusts. Our amendment requires that at least one member be appointed by the NHS Commissioning Board in the place of the PCT appointee who will no longer be able to take his place. A substantial number of NHS patients—one hopes a majority—are patients under the foundation trusts. It is therefore important that the concerns of the CCGs and of the board should be represented on foundation trust governing bodies.

I will also briefly speak to Amendments 300, 301, 302 and 303 in the same group. All relate to the decisions to be made about the mergers or dissolutions of foundation trusts. The purpose of the amendments is to add the name of the Secretary of State to those who are required to consent to either a merger or a dissolution. I shall explain very briefly why we believe this to be of great importance. Despite these amendments looking rather petty, they are not.

The Secretary of State is in a unique position to decide on the strategy of the National Health Service over the whole country. He is in an especially good position to be well-informed on the balance between demand and supply across the territory of England. If there is no requirement for him to emerge at this point as the figure who makes the ultimate decision as to whether there should be a dissolution or a merger, there is nobody else able to detect whether the needs of all patients in England are met. As the House will be aware, if a foundation trust merges and perhaps one part of that merger ceases to offer services, that may be very much in the long-term interests of the National Health Service. The noble Lord, Lord Warner, spoke eloquently on this point yesterday. Where a foundation trust is the centre of, for example, pathways in a particular chronic illness, and where it meets the hospital needs of a substantial part of an area of the country, only the Secretary of State is in a position to decide whether that foundation trust merger or dissolution will have a major impact on the health services available in that part of England.

We suggest, once again, that this is not a tactical or micromanagement issue, but a strategic one, given the significance of foundation trusts in many parts of the country. We therefore very strongly urge the Committee to agree to this amendment. We believe it is a crucial part of the strategy of running a National Health Service in England. I beg to move.

[Baroness Thornton]

My Lords, we have all been precipitated into this debate some 10 minutes earlier than we might have expected. I should like to speak to Amendments 296A and 298A, and to whether Clauses 176 and 177 should stand part.

Amendment 296A provides that foundation governors must,

“be notified and have the right to attend all meetings of the Board and its sub-committees and have access to all relevant documents and papers”,

under a “duty to protect confidentiality”. Amendment 298A provides that the accounts of a foundation trust or other public benefit corporation,

“must identify separately the income and expenditure which relates to any private income business, and the audit of such accounts must include assurance that all costs which relate to private income business have been properly calculated or recorded”.

I accept that the Minister has an amendment that is not totally dissimilar to this, but it does not include the words about the need to audit and have income and expenditure on the public record, which we think are rather important. Clause 176 stand part would leave out the clause that abolishes NHS trusts. Clause 177 stand part objects to the repeal of various provisions in the authorisation of foundation trusts.

We have already touched on aspects of foundation trusts. Our position is that we support the concept of foundation trusts as a model for developing a form of multi-stakeholder or community-based governance, and allowing earned autonomy for NHS providers from direct performance management. As we discussed on Tuesday, we accept the role of Monitor as a regulator of foundation trusts. We agree with my noble friend Lord Warner that the plethora of other roles that Monitor has been asked to play poses risks, and we have set out our objections to and worries about that.

We accept that the foundation trust journey is still being travelled. I suggest that it is probably time for a proper independent study of how the foundation model might be taken forward. We are where are, not where someone might have hoped we would be. We make no great claims for foundation trusts but we would agree that the more trusts that can meet the standard the better. However, some will not meet it, for many different reasons. The rush to force them into hasty mergers and takeovers will bring great risks. I point to the fact that only today the House of Commons Public Accounts Committee has issued the report Achievement of Foundation Trust Status by NHS Hospital Trusts, which I have asked the Printed Paper Office to make available. I said that it is quite possible that other noble Lords might be interested in it in the course of today’s debate.

On the point about how many trusts will make it to foundation status, I quote from the document:

“By 1 October 2011 there were 139 NHS foundation trusts, and 113 NHS trusts at various stages in the 'pipeline' towards foundation trust status. Only 14 trusts have achieved foundation status since the end of 2009 … The Department expects the majority of trusts to achieve foundation trust status by 2014, but recognises that a small number may not do so before 2016”.

The report goes on to say that there is indeed a very serious problem of hospitals not achieving foundation trust status:

“Twenty hospital trusts have declared themselves unviable in their current form”.

It suggests that more than,

“half of all trusts are not yet foundation trusts and more are likely to conclude they are unviable”,

and goes on to say:

“A particular concern is what will happen to trusts that are unable to achieve foundation status but nevertheless provide an essential service to local people”.

This report’s very timely publication needs to be acknowledged in the course of our debates on these matters.

We do not accept that every NHS provider must be a foundation trust. We agree with Sir David Nicholson that there is scope for some NHS trusts to be permitted. This also allows us to say that a foundation trust can be de-authorised in exceptional circumstances. This Committee needs to discuss the issue of the Government’s rush to say that all trusts must have foundation status. That is clearly not going to work and we have no satisfactory answers at the moment about what is intended under those circumstances.

We will discuss the issue of the private patient cap so I will not refer to it now. We do not go the whole way in deregulation and see a continuing role for Monitor, not just in authorising foundation trusts but, as we said in our earlier debate, in retaining oversight and intervention powers. We agree that the authorisation process should be rigorous and demanding, so the question there which the Minister needs to answer is: if the department is determined to push hospital trusts into foundation status, what does it mean for standards—will they be relaxed? We think that they should not be. If further lessons are needed from Mid Staffs then I suspect that this is one that the inquiry will raise.

We share the view expressed by several noble Lords on Tuesday that there may be examples where the cause of a foundation trust’s problem lies with the local health system rather than poor foundation trust management. A more effective approach to reconfiguration and a sensible pre-failure regime is absolutely necessary. We understand and hope that the Minister is looking into this and look forward to being part of those discussions. Our view is that while having a great deal of autonomy, foundation trusts remain within the NHS; they are not to be hived off as quasi-businesses. We believe that in general only the two extremes differ from our view—those who want a fully publicly owned, public-provided NHS with no split, and a small band around the current Secretary of State who want to make foundation trusts into businesses and, like a private provider, free from all scrutiny. The rest of us are probably somewhere in the middle.

I turn to the amendments. We support the idea that foundation trusts must open their governance and must meet in public—which is vital. We support the idea that to be effective in their duty to hold the board, and especially the non-executives, to account, the governors must have the right to access and observe all meetings and to see all papers. The confidentiality issues which this might involve can be resolved through appropriate codes of conduct, but if governors are to be the main lines of defence then they must be able to know what is happening. Sadly, that is not the case in some foundation trusts.

We support the need to separate properly the accounts in respect of non-NHS business. It is important to avoid smoke-and-mirrors accounting, especially on the issue of the private patient cap, which we will discuss later. Transparency on that issue is vital. The bottom line is that NHS resources should not be provided at knock-down prices. We have had an undertaking that foundation trusts will provide information showing how non-NHS income acts for the benefit of NHS patients, but in the absence of detailed regulations about how that is to be done it would be best to maintain a sceptical view.

In line with our view that foundation trusts remain part of the NHS family, we support the amendments that ensure the Secretary of State must approve major transactions such as mergers. We do not support the Government’s amendments which are a further example of layering of bureaucracy and paperwork to try to justify their failure regime, which pretty much got a hammering on Tuesday and must be thought about again.

--- Later in debate ---

[Lord Mawhinney]

My Lords, I should like briefly to comment on the amendments proposed by my noble friend Lady Williams of Crosby. In one respect, I was sorry that she spoke so briefly because I should have liked to have heard more of her reasoning for Amendment 296. I am not at all clear about what the advantage is to either the Commissioning Board or the hospital if one serves on the board of the other. Is it because that is the only conduit of information? Frankly, I do not think that anyone believes that. If that is actually the argument then the whole NHS is in a much greater state of peril than any of us thought was the case until now. I honestly do not see the importance of or justification for the amendment. It may be a probing amendment, but it would have been helpful if the noble Baroness had given us a bit more of the thinking behind it. As of this moment, pending her winding up, I am not at all convinced that the amendment is either important or necessary.

However, I turn to the noble Baroness’s Amendments 300 to 303, which are also in the name of our noble friend Lord Marks of Henley-on-Thames, who I am sorry to hear is unwell. I very much support what she said about those amendments, even though—to use the word of the noble Baroness, Lady Finlay—she explained them concisely. They take us back to one of the main issues of this legislation: where is the Secretary of State in this brave new world? The Minister knows that a number of us think that the Government are thus far underplaying the role of the Secretary of State.

As my noble friend Lady Williams of Crosby was speaking, I thought of the condition of a number of foundation hospitals that have been the product of a PFI system. That was triggered in my mind by her comment that if there was a coming together of hospitals, or if some element of service was not provided, it may be of a sufficient scale for the Secretary of State to want to take a significant interest. The truth, to the best of my probing, is that a number of hospitals out there—the products of PFI—are in very difficult and probably, without help, unsustainable positions.

I know that the Minister understands that and that it is a matter of concern to the department, so I do not make any comment prejudging the outcome, but my noble friend brought the Secretary of State into this precisely because there could be serious, significant or catastrophic effects on the provision of healthcare in the hospital sector which, by definition, would include the importance of ministerial—that is, Secretary of State—involvement and consideration.

I welcome Amendments 300 to 303, but I say to my noble friend Lady Williams of Crosby and the Minister that I think they are part of the bigger picture of where the Secretary of State will be when the Bill finally reaches the statute book. The Minister has kindly and, I think, genuinely agreed to reconsider all those issues and bring them back for our consideration at Report. Subject to him saying the same about the issues raised by our noble friend Lady Williams, I hope that she in turn, hearing his response, will not feel it necessary to push the amendments to a vote today, although that might become an issue, depending on where we are at, on Report.

[Baroness Williams of Crosby]

Perhaps I may respond briefly to the points raised by the noble Lord, Lord Mawhinney. I apologise if I spoke too briefly, but I am conscious that there are an awful lot of amendments to get through and I do not want to steal the time of other people on other crucial amendments.

On the group of four amendments that the noble Lord is in accord with me about, as he will be well aware, consideration has been given to the material put before us by my noble friend Earl Howe, the Minister of State, about an attempt to bring together discussion within the House and among lawyers about the issue which the noble Lord, Lord Mawhinney, rightly identifies as being central to the Bill: the responsibility and powers of the Secretary of State. Because we are in Committee and the Committee will, we hope, be ending in a few days’ time, the only opportunity we have to table amendments that would bear on the issue of the Secretary of State’s powers is on the Bill as it stands—prior to any changes that may be made. It is in the light of that that we tabled this group of amendments to highlight the areas where, in our view, the responsibility of the Secretary of State is central. That is true of this group of amendments, and I am delighted that the noble Lord, Lord Mawhinney, takes the view that they should be seriously considered by the Minister.

The point of Amendment 296 is to recognise that, in many cases, CCGs have to take account of the services given by foundation trusts—not least in respect of, for example, pathways and networks for people with chronic conditions. We thought, therefore, that it was important that there be not just sharing of information between the two but, rather, a process of interactive education, where the foundation trusts become increasingly aware of the responsibility that CCGs bear, particularly for those clinical conditions that lie beyond the capacity of a single CCG. That is why we suggested that a governor should be named by the national board to set up that communication—which, as the noble Lord, Lord Mawhinney, knows far better than I do, because he is an expert on the subject, sometimes, sadly, does not exist.

[Lord Warner]

My Lords, I will just raise a couple of points about Amendments 300 and 301, tabled by the noble Baroness, Lady Williams, in relation to the Secretary of State's role in mergers. The other day, I tried to express a little about my concerns, which I continue to have, about the speed at which the Government are expecting some of these trusts to become foundation trusts. One thing that I am beginning to see happening in the NHS—this will lead to some questions to the Minister for clarification—is the rush to merge. Mergers can take a number of forms, and a good example is in north-east London, where there is a proposal to merge Barts and The London with Whipps Cross and Newham. These three hospitals have failed to become foundation trusts but it seems to be thought that by some osmotic process, which I am not altogether clear about, such a merger will improve their prospects of doing so.

Discussions are also going on in other parts of the country about merging non-foundation trusts with successful foundation trusts. The evidence here is that there are some very high-risk ideas floating around regarding trusts which so far have not been good enough to become foundation trusts, and causing risks to stable foundation trusts by merging them with trusts which are in some degree of difficulty. However, I can see that the NHS might feel under pressure to try to get people to secure foundation trust status by the deadline that the Government seem to have in mind.

As I said the other day, trusts have had eight years to get themselves ready to become foundation trusts and they have failed to achieve it so far. You have to be one of life’s great optimists to believe that somehow, because the Secretary of State has set a deadline for 2016, it is going to happen. There is a serious question about whether the necessary checks and balances are in the system to stop what I would call silly and fruitless behaviour. Is the Minister confident that the Co-operation and Competition Panel will be a sufficient bulwark to stop what I am calling silly behaviour in relation to mergers, or do we really need the kind of strengthening that I think is implicit, if not explicit, in Amendments 300 and 301? This is a serious issue. We are beginning to see behaviour which may not be in the public interest as people try to get foundation trust status without the necessary skills and competences, or indeed the necessary financial situation in their locality, to achieve this.

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[Earl Howe]

My Lords, I would not dream of putting my right honourable friend the Secretary of State’s nose out of joint by calling him “an added layer of bureaucracy” in all circumstances. If I did so, I retract it immediately before it catches up with me. The answer to my noble friend is that the Secretary of State is not that of course; he has a major role in the structure of accountability and decision-making in the architecture of the Bill.

The issue to which my noble friends Lord Mawhinney and Lord Newton have referred is, however, complicated. I have asked for briefing on the way in which the merger process will work. It is quite extensive. To cut to the chase, an application from an NHS trust to merge with a foundation trust must be supported by the Secretary of State. That reflects current rules. However, the Bill removes the requirement for a foundation trust to consult the local authority on a merger. Section 244 of the Act, as amended by the Bill, would provide powers for regulations to make provision as to matters on which NHS bodies, including foundation trusts, must consult local authorities. We intend that foundation trusts will continue to be required to consult local authorities on particular matters set out in regulations and we will consult on those. That is the local authority bit of it. There will also be a duty of public involvement on foundation trusts in relation to such matters as the planning of service provision, proposals for changes in the way in which services are provided and decisions affecting the operation of services. I would be happy to write to both my noble friends—it would probably be better if I did so—to set out exactly what we envisage in the circumstances that they have raised.

I do not want to delay the Committee unduly, but perhaps I could refer to the PAC report to which the noble Baroness, Lady Thornton, referred. We welcome the report, which says that the NHS is in need of major overhaul. What is interesting about the report is what it shows about the state of the provider sector when the Government took office last year. It had problems such as hidden bail-outs, inadequate leadership and toxic PFI deals. These matters had not been addressed and we have made the firm decision that we cannot continue on that basis. That is why we are proposing independent assessments of trust boards as part of the foundation trust authorisation process.

As regards that process, trust boards will be independently assessed. The point of that is to ensure that they are up to scratch and able to lead their hospitals to foundation status. The underlying issue here is that we want all trusts to be clinically and financially sustainable in the future. The Public Accounts Committee has, very properly, drawn to our attention various issues around the capacity and capability of leadership, among other things, and my noble friend Lord Mawhinney mentioned PFI as another issue. All NHS trust boards will have to identify their strengths and weaknesses before being independently assessed. That is a robust discipline.

As my right honourable friend made clear in October, if, even after receiving support, management teams fail to improve their performance, then action will be taken. This could include their possible removal as a last resort. The Government will provide help to a small number of challenged hospitals to turn themselves around where necessary, but only after they have met the four tough tests that we have laid down. The problems they face must be exceptional and beyond those faced by other organisations; they must be historic; they must have a plan to deal with them in the future; they must demonstrate that they are improving their productivity; and they must deliver high-quality, sustainable services.

Before I conclude, I should like to speak to a number of minor and technical government amendments—for that is indeed what they are—in this group. These make consequential amendments in line with the revised provisions of the Bill; they correct drafting errors to correct references and numbering, or they remove redundant references to repealed legislation. Their purpose is to make the Bill work properly and to ensure that the legislation is up to date.

[Baroness Williams of Crosby]

I beg leave to withdraw my amendment, with the simple comment that I thought the reply of the Minister—which was, as usual, very well argued—strengthened the case for both of my amendments even more than I had thought before, and I am grateful for that. Strong leadership, as the Public Accounts Committee calls for, was exemplified by the Minister but should include the Secretary of State. However, may I now move on to the next group?

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)]

If the noble Baroness would indicate what she wishes to do with Amendment 296, that would be helpful.

[Baroness Williams of Crosby]

I apologise. I thought I had begun by saying that I would withdraw the amendment and then made some remarks afterwards.

Amendment 296 withdrawn.

--- Later in debate ---

Moved by

[Baroness Williams of Crosby]

297: Clause 149, page 149, line 20, after “whole” insert “for the purposes of the National Health Service”

[Baroness Williams of Crosby]

My Lords, I shall speak also to Amendments 299A and 299AA.

Before I do so, let me say just a word or two about two other amendments in this group, that is, Amendments 299ZA and 299AZA. I warmly thank the Minister, my noble friend Lord Howe, for having listened with such care to those of us who spoke to him about the issue of foundation trusts, in particular the issue of the private income paid into foundation trusts and the question of how that private income should be used ultimately for the benefit of the health service. He has been very patient, very willing to listen and extremely helpful. On behalf of these Benches and my own party I would like to thank him, and I am sure that others in the House will share that gratitude for the way in which he has responded.

I do not want to go into detail, because the amendments are very clear and have been laid, beyond saying that the first of those amendments, Amendment 299ZA, clearly states the situation with regard to income that comes into a foundation hospital—that is, that that income must be ultimately devoted to the health service. It sets beyond question or ambiguity the Government’s position on this critical issue. I am therefore extremely grateful to the Minister for that.

I also strongly support the proposals about the annual report. I take to heart the Minister’s distinction between the way in which the annual report deals with the funding of National Health Service patients in foundation trusts and with the separate funding of private patients in foundation trusts. On both those issues, it is extremely helpful that the annual report should be clear and open, so that we can all discuss not only the very serious issues that have been raised by the noble Lord, Lord Warner, but also, as pointed out by the noble Baroness, Lady Thornton, the very disturbing report from the Public Accounts Committee, which reiterates over and over again the need for leadership and for a clear statement of where the trusts stand, and the real concerns it has about the difficulties that some of them now confront. It is a dramatic report, and we should commend it to this House as far as we possibly can. Perhaps a separate debate on that issue in the Public Accounts Committee report would be appropriate on some future occasion.

Having said that, I will add only one other thing with regard to the first two amendments I mentioned, which are familiar enough to the noble Earl. In my view, it would be very helpful if there were “belt and braces”, by which I mean a government amendment which would indicate that, in the case of foundation trusts, the majority of patients should be NHS patients. That is, there should be an unquestionable commitment to having a majority of NHS patients. There are two reasons for that. One is simply that, good as the amendment unquestionably is, it is difficult for the general public—I certainly include myself in this—to understand the precise thrust of Amendment 299ZA, which I have quoted. It is helpful in this complicated Bill to have some islands of clarity that those who are not experts in the field—again, I include myself—can understand. People could understand the simple concept that a majority of patients should be from the NHS, not the private sector.

The other reason why I beg him to look at this carefully is that it is also important from the point of view of the complex debate that we have already had in this Committee on the issue of competition policy and EU competition policy. If there is a clear statement that the majority of patients must come from the NHS, that should be immensely helpful in ensuring that we are not then subjected to the rigours of the extreme competition policies defended at present in the EU and, indeed, by our own Competition Commission. My noble friend Lord Clement-Jones, who knows a great deal about the legalisms of competition policy, may have something to add on this point.

I turn briefly—well, fairly briefly; I am now conscious of the disapproval of the noble Lord, Lord Mawhinney, so I shall be a little more detailed—to the three more minor amendments in the group that my name is associated with. The first of those is Amendment 297, where we would like to add the words,

“for the purposes of the National Health Service”.

In order to persuade noble Lords of the importance of this, I will read out the text that the Bill currently inserts:

“The general duty of the board of directors, and of each director individually, is to act with a view to promoting the success of the corporation so as to maximise the benefits for the members of the corporation as a whole and for the public”.

In that wording, the public trail far behind the interests of the members of the corporate body. That is unfortunate and unwise. We are therefore proposing the simple amendment that the words “for the purposes of the NHS”, which, as noble Lords will appreciate, recur in other parts of the Bill on many occasions, should be added to this section about the directors of foundation trusts. It is important to reiterate that foundation trusts work for the interests of the NHS, which is why we have suggested this simple amendment.

On Amendment 299AA, on which my noble friend Lord Clement-Jones will speak in slightly more detail, the point here is quite straightforward. Clause 162(1)(a), which we are suggesting should be left out, removes the existing subsection in the National Health Service Act 2006 that limits the provision of private services. In particular, the 2006 Act permits not the abolition but the restriction of private health services within foundation trusts. Section 44(1) of the 2006 Act provides that,

“An authorisation may restrict the provision, for purposes other than those of the health service in England, of goods and services by an NHS foundation trust”.

In other words, that subsection again sustains the argument that there is a role for the private sector but that there must be restrictions on it if the NHS trusts and foundation trusts are to sustain their fundamental legal obligation to the NHS. It is important that these restrictions should be upheld. Indeed, the authorisations that I have referred to are critical to the concept of maintaining the foundation trusts within the health service system and therefore making it less vulnerable to competition legislation.

The final amendment that I want to refer to is Amendment 299A, where we are simply bearing out what I have already said. I therefore hope the House will now hear additional arguments from my noble friend to show why this group of amendments is very important in order to retain the current status of foundation trusts, which is very welcome, and which will assist in meeting some of the trenchant criticisms of the Public Accounts Committee about this whole sector of the health service. I beg to move.

[Lord Newton of Braintree]

My Lords, I will come in very briefly. I declare a past interest as former chairman of the Royal Brompton and Harefield NHS Foundation Trust, which probably has as large a private patient income as any in the country. Frankly, that income considerably benefits the two hospitals and their NHS patients.

I welcome the amendments of my noble friend, and hope that the Minister will give them careful consideration. All of us in this House, not least those of us who are former Ministers of health, have been united in our wish to see a successful and flourishing NHS, and in being really dedicated to it. It would be an oddity if a hospital designated as an NHS trust—whether foundation or otherwise—were treating a majority of patients who were not NHS patients. That is quite a simple proposition, and it is the one advocated by my noble friend Baroness Williams.

The amendments already tabled by my noble friend on the cap on income are extremely welcome and sensible. However, I hope that he might think of—dare I say it—embracing the thoughts of my noble friend Lady Williams as well in some further modification of those amendments so that they refer both to income and to numbers. The numbers thing will be more readily understood by many members of the public. Clearly we do not want NHS trust hospitals to gain most of their income from doing non-NHS work or from treating non-NHS patients. That just does not make sense. It would helpful if we could make that clear.

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[Baroness Williams of Crosby]

I have listened closely to the noble Baroness. I should perhaps add that within these Benches we discussed, and at one stage talked to Monitor about, the possibility of an individual cap for hospitals outside London. I completely take the noble Baroness’s point that in places such as Newcastle the figure for private patients is less than 2 per cent—even though the hospital there is renowned. One can think of many similar examples. We would therefore be perfectly open to reaching an agreement under which Monitor was responsible for there being lower caps in different parts of the country. The proposal that the number of patients from the NHS should be greater than the number from the private sector is an overall statement of principle that virtually every hospital can easily meet. We hope that it might, among other things, disincline our friends from the competition area from deciding that foundation trusts were undertakings and not private agencies.

[Baroness Finlay of Llandaff]

My Lords, this has been an interesting short debate because the whole business of the cap has imposed wide variations on trusts. Where trusts cannot have any private activity, there has been an unintended consequence if some staff, particularly consultants, undertake private work. They have carried out that work offsite and not been available if there has been an emergency onsite, and travel times also have worked against patient care.

I can therefore completely understand why these amendments are before us and why the Government wish to act as has been outlined. Perhaps in his closing remarks the Minister can provide us with an assurance that any guidance—it is not necessary to include this in the Bill—will ensure that trusts do not inadvertently double-pay staff. The point of splitting private and NHS treatment was precisely to ensure that staff do not carry out private work in their NHS time and receive double pay, and that the accounts are clear. There are advantages to staff doing private work on NHS premises and to a flexible interpretation whereby, when there is a medical emergency, staff can run down the corridor. Private patients completely understand when someone has to be called away because there is a life-threatening emergency. They are happy to wait until the staff return. That system operates at the hospital in which I work. Although I do not do any private work, some of the oncologists have clinics in the evenings.

There is a need for clarity and I hope that some reassurance will be given that in removing the cap there will be good husbandry of public money.

--- Later in debate ---

[Lord Clement-Jones]

My Lords, I shall intervene briefly before my noble friend Lady Williams sums up on her amendment. What the Minister just said about this relationship between governors and directors and the advancement of the principal purpose of a foundation trust added another dimension. It is not so much the question of the majority of income or of patients coming from the private or the public sector that is important. That is simply a test for competition law purposes. The issue is whether the principal purpose of the foundation trust remains within a social purpose. The element of solidarity established by FENIN is there and it is therefore at less risk of falling totally within EU competition law as an undertaking.

The Minister’s comments bear considerable study, but what he has said does not completely take us out of the risk area. I know he does not use the word “risk” in relation to EU law applying further, but that is certainly the mindset of a number of us looking at these provisions, particularly in relation to the cap. It is the question of social purpose and solidarity that is crucial in law, and the question of whether what my noble friend has done to date is sufficient. I will obviously read his comments carefully but I do not think we are quite there yet.

[Baroness Williams of Crosby]

I am happy to withdraw the amendment, but I would like the Minister to consider very carefully the words of my noble friend Lord Clement-Jones because my impression is rather the same as his, although on a much weaker basis of expertise. On the one or two occasions when I visited the Commission to discuss this matter, I had a strong sense that social purpose is one of the main criteria that they look at in deciding whether something counts in the area that captures competition law in the EU. I cannot speak about the Competition Commission in England because I do not have enough expertise to do so, but I hope that the Minister will consider what my noble friend has said because I believe that it is a crucial factor for the EU Competition Commissioner.

[Earl Howe]

My Lords, I am very happy to consider all these issues in the context of the discussion that my noble friend Lord Clement-Jones and I are going to have on EU competition issues generally.

--- Later in debate ---

[Earl Howe]

If the noble Baroness wishes that, it would be my pleasure to accede to her request.

[Baroness Williams of Crosby]

My Lords, I am perfectly certain that the noble Baroness will contribute even more to this esoteric but very important discussion. With words of thanks to all those who have taken part, I now withdraw the amendment.

Amendment 297 withdrawn.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Tuesday 13th December 2011 Lords Chamber

[Baroness Thornton]

The point I am making concerns what we need to do for the future. What happened in Mid Staffs has some bearing on that and I said “instructive”.

The tests that we are suggesting should be applied to any organisation wishing to supply clinical services to the NHS around probity and can be enforced through contracts and licensing. Meeting the conditions without trying to argue commercial confidentiality is now the price of doing business with the NHS, in our view.

Finally we have reservations about the interaction between the licensing regime and the use of standard contracts. Why have both as enforcements? What would be appropriate for each? What is the role of Monitor as regards the contracts? What happens to disputes between providers and commissioners? Do they all go to court? What is the role for Monitor in the resolution of disputes? We have accepted that if you have a licensing system then you have to build a bureaucracy to support it, moving from a top-down management bureaucracy to a regulatory bureaucracy. To keep this to a minimum while remaining effective is not simple, as the CQC is finding. But the system set up in the Bill is very complicated and our amendments seek to simplify it. The nature of the operation as to whether it should be a light-touch risk-based approach or continuous direct inspection is another issue which has plagued the CQC and will have to be resolved by the new Monitor. That is a question we need to put on the table.

I now turn to our amendments. In Amendment 260EB Monitor is to take on duties in relation to authorising through licensing any person who provides healthcare services for the purposes of the NHS. Amendment 279A is to remove any potential ambiguity and stress that providers of primary medical services for the purposes of the NHS must hold a licence. Clause 82 stand part is to facilitate a discussion about who can be exempt from the requirement for health service providers to be licensed and who makes those decisions. In Amendment 282A, since this a strong power granted to Monitor to revoke a licence, we add qualifications that in the case of a foundation trust Monitor must consult the Secretary of State, and the Secretary of State may veto any revocation if it is deemed not to be in patients’ or taxpayers’ interests. In Amendment 282B the Secretary of State, not Monitor, should determine the principles or framework behind the licensing conditions and Monitor must then have regard to these. Amendment 283 specifies that the standard conditions included in each licence must set out various minimum standards such as for governance arrangements, meeting in public, employment conditions, co-operation with local-authority overview and scrutiny functions. Amendment 283A contains the issue of there being no need to have different standard conditions for different descriptions of licences.

Amendments 286ZA, 287ZA and 287ZB set limits on Monitor’s functions to set and modify the licence conditions, simplifying its role. Amendment 287BA leaves out the roles of Monitor relating to licence conditions, price and charging. Amendment 287F requires licence holders to be fully subject to the overview and scrutiny functions of local authorities. In Amendment 288ZB Monitor has the power to modify the standard conditions applicable to all licences, and in doing so there should be no need for a vote among providers but consultation and consent from the Secretary of State is required. In Clauses 99 and 100 stand part we raise the issue of minimising the bureaucracy surrounding licensing. In Clause 101 stand part we argue that the requirements for fair eligibility and transparency in selection should be covered under the PRCC. This is a probing amendment designed to strengthen the clause instead of deleting it on Report. We think that that should be a matter for discussion. Amendment 288DZA regards Monitor’s power to impose discretionary requirements, including fines, on providers and licence holders if they fail to provide required documents or information, which can only occur with the consent of the Secretary of State. Any fine must be held by the local CCG for reinvestment in services in that area. Amendment 288DA states that if any provider is in breach of a licence Monitor may take action against them, including the imposition of fines, but only with the consent of the Secretary of State. I beg to move.

[Baroness Williams of Crosby]

I would like to address just one of the amendments in this group, which is in my name and that of my noble friend Lord Marks of Henley-on-Thames. Unfortunately my noble friend has been taken ill and is unable to be here. He extends his profound apologies to the Committee.

This amendment is significant in strengthening the general approach towards competition under Section 3 of the Bill, by making it quite plain that the requirements that have to be met, which we will come to in Part 4, must also apply to licence holders. I am in a slight difficulty, as my noble friend Lord Howe will appreciate, as the Government have tabled amendments on aspects of foundations trusts which will arise at a later stage in the Bill, particularly under Clause 161, which are related to the amendment to which I am now speaking. I will therefore do my best to navigate around Clause 161 in so far as I can. However, I may have to make limited reference to it in order to make clear what my own amendment is about. My own amendment is essentially one that would support, and indeed further improve, the proposals put forward in this particular amendment. They should therefore be read together with Clause 161 and Amendments 299ZA and 299AZA in the name of the Government.

We want to make two requirements as a fundamental part of the requirements that licence holders have to meet. We appreciate that, in many ways, the licence-holding requirements are fundamental to the way in which the Bill operates, because it must be the case that providers are brought within the general structure of the Bill itself. Our amendment makes two particular points about that. The first is that the revenue from private patients, as a percentage of the licence holder’s total revenue, must be kept below 50 per cent. Secondly, and at least as importantly, the number of private patients in a foundation trust hospital must also be kept below that proportion.

The main point of this amendment—I think that it is an important one—is again to establish that we are looking at foundation trusts that are part of the provision under the NHS and that a minority of both income and patient numbers would be required for any provision made. We hope, as I think the noble Baroness said, that this set of requirements continues well beyond 2016 as part of the structure of the relationship of foundations trusts to the health services, and that this is therefore not standing alone but a crucial part of the whole strategy.

If the noble Lord, Lord Owen, were in his place, I would say that if this is not the rail track of the French railways, it is at least the rolling stock, and we need both to have an effective railway service. However, I wanted to say one other thing. The first part of the amendment tabled this morning by the noble Earl, Lord Howe, goes a very long way. We will talk about this in more detail later so I shall only sketch it out now, given the time. I think that the first part of the amendment, with regard to income—and indeed the requirement that income must exceed the costs of providing that income, and that it must be used for the purposes of patients within the health services—is a very full and useful advance. It is very close to the phrasing of the 2006 Act, which is a point that I am sure will come across to the noble Baroness, Lady Thornton, and her colleagues, but with the additional wording that makes it, if anything, even stronger.

The noble Earl, Lord Howe, will know from discussions which I and my colleagues have had with him that we would want to see this supplemented, if possible, by a reference to the proportion of patients in foundation trust hospitals. Quite broadly, that is something the public can understand, whereas references to quite complicated percentages of income, although equally important—if not more so—are perhaps less transparent and less apparent.

I will not pursue further the new amendments beyond welcoming them, but I want to advance this particular, although limited, amendment as thoroughly as I can, as I think it would ensure that licence holders were held to the same kind of requirements that we are imposing upon Monitor, the national Commissioning Board and the CCGs. It must be the case that this should be a common approach across the front.

[Lord Clement-Jones]

My Lords, I shall be brief. I wish to speak to Amendments 281A and 288ZA, to support my noble friend on Amendment 287EA and to speak to Amendment 287A.

Amendments 281A and 288ZA deal with what are clearly major decisions that will be made by Monitor. The first is the exemption from licensing, which requires notice to be given, and the second deals similarly with the particular standard licence conditions that may be modified. Currently the Bill provides for 28 days’ notice to be given, but these are major issues, and although this is a probing amendment, I hope that the Minister will be able to give a good explanation as to why this period should be so short. Obviously one does not want to have undue delays, but there are quite a number of stakeholders who are bound to be involved in this and it does look rather like a rushed job. So this amendment provides for 90 days to be the standard term for notice to be given.

I move on to Amendment 287A. This amendment simply permits—indeed, requires—the insertion of a standard condition in the licence that the licence holder should,

“abide by the seven general principles of public life set out in the First Report of the Committee on Standards in Public Life”—

the so-called Nolan principles—and requires,

“the declaration of any financial interest the licence holder may have in a commissioning decision by a clinical commissioning group”.

Nowadays that is increasingly standard. I will not prolong the debate, as we have already had considerable discussion in the course of this Bill about conflicts of interest and the need for transparency in these circumstances. However, I would have thought that licence holders, who essentially will be providers across the whole service, should be under a heavy duty of transparency in order to ensure that they do not have a conflict of interest.

Coming to Amendment 287EA, my noble friend Lady Williams has eloquently set out the issues. What is really required in these circumstances is for the Minister to rebut the presumption that we not only need a provision about the actual total revenue, but also about the number of patients actually treated by a provider. This provision is a belt and braces against the provisions of EU competition law. It is extremely well drafted. I take no credit at all for that, it is my noble friend Lord Marks at work here. We will be discussing the Minister’s very welcome amendment later, but it does not contain the second limb of this particular amendment. It would be useful if the Minister could address this in due course, whether under this group or in the later group, as I recognise the difficulty that my noble friend Lady Williams has also recognised, that this is not grouped with Amendment 299A and probably should be.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Tuesday 13th December 2011 Lords Chamber

[Lord Warner]

I thought there was going to be an intervention from my left. I was not going to intervene in the debate on this group. I am sorry if I missed something by missing the debate on the first group of amendments. I have some concerns about the dual role of Monitor as the arbiter of foundation trust status and the raft of new duties that it will undertake as an economic regulator. Let me make it clear that I have no problem whatever with the role of Monitor as the economic regulator and the functions that go with that. However, I want to share with the Minister and the House some of the previous Government’s thinking on whether Monitor could combine being the economic regulator and the arbiter on the passage to foundation trust status. The situation, if anything, is more difficult now. We finally concluded that we could not make Monitor the economic regulator until we were much, much further along the path of completing the job of trusts becoming foundation trusts because there were potential conflicts of interests, which we will come to later.

I raise this issue at this point because there are accountability issues here as well. I can see the very strong arguments—and I have every sympathy with the Government on this—for setting up an economic regulator and the Secretary of State not dipping in and out of those functions. If you are going to have a regulator, let it be independent and leave it to get on with the job. I am very comfortable with that. My concern is that we are already going to be loading a very large number of functions on to this economic regulator, and to expect it to carry on, even with Chinese walls, as the arbiter on foundation trust status is a big ask, given that most of the promising candidates for foundation trust status have already jumped over the bar and we are getting down to the ones that have been finding it rather difficult to jump over the bar. That could be because the Government have set themselves the target of 2016. We set ourselves targets of 2008 and 2012, and quite a lot of trusts have still got nowhere near jumping over the bar, so I certainly would not bet the farm on them all having cleared the hurdles by 2016.

Monitor, in its role as the arbiter on foundation trusts, needs to keep a very close eye on those that have cleared the bar and to intervene when it needs to. The Secretary of State is actually embroiled in that process. The cases have to be cleared by the Department of Health and the Secretary of State before they go on to Monitor. That is a long-established process. The Secretary of State is going to become involved to some extent if trusts lose their foundation trust status; they go back into the pool in a sense.

We are now dealing with a situation that is much more difficult financially and much more challenging than it was under the previous Government. We are trying to get Monitor to do an even more difficult job with the most difficult trusts in an extremely difficult climate and to take on the job of being an economic regulator. There are real issues about whether that can be done and about separating out the areas where the Secretary of State has a legitimate role. It is legitimate for the Secretary of State to have a presence in the build-up to a foundation trust application and when a trust loses that status. However, that set of issues is separate from the accountability issue when Monitor performs the role of an economic regulator. Will the Minister share with us some thinking about how those separate functions will be handled in the real world that we will face over the next three to five years?

[Baroness Williams of Crosby]

My Lords, I wish to address my Amendments 274AA, 274C, 274D and 274E in this group. I shall speak as briefly as I can. I share many of the concerns expressed by the noble Lord, Lord Warner, on whether we are overloading Monitor with too many requirements to make judgments, to intervene and to be responsible to enable any single body to function, however brilliantly led it might be.

This amendment is about the conflict of goals on the part of Monitor. I believe that it is a very important amendment, although it looks modest enough. The Bill states that if Monitor has a conflict of objectives—or, more clearly, a conflict of duties—that will in essence be resolved by the head of Monitor making a statement about the nature of that conflict and the ways in which it could be resolved and then turning it back to the perpetrators to solve the problem as best they can. Those conflicts are substantial. We should make it clear that they are fundamental to the whole argument that we have been having, including in the brilliant previous debate because, first and foremost, the general and primary objective of Monitor is supposed to be the promotion of patient health and patient care. That is fundamental. We heard in the very eloquent speech of the noble Baroness, Lady Meacher, how she thinks Monitor has changed its philosophy of life within the NHS and has become much more concerned with patient care and patient protection than with the pursuit of competition primarily for its own sake. That is a very important step forward in our understanding of the Bill.

However, it still leaves open the possibility of a conflict arising between the duties of Monitor. I have just mentioned the first of those duties—the care and concern about patients who are dependent on the health service. The second duty continues to be a concern with anti-competitive policy, and the third is concerned with integration and collaboration, about which there has been a great deal of discussion and many amendments in this House. The Bill gives us very little guidance on any conflict over which of those duties should be given priority over the others. It says that a conflict of duties or a conflict between responsibilities is to be resolved in this rather heavy-handed way of a statement being made about the nature of the conflict and how it might be resolved, which is then distributed to all those concerned. However, there is no resolution of the conflict. It remains part of what one might describe as an ongoing negotiation that some day might resolve itself in one direction or another. It has interesting parallels with yesterday’s events. However, Amendment 274E sets out very clearly that we believe that ultimately conflict should be resolved by the Secretary of State. We accept all the intervening proposals in the Bill at present—that statements should be made, that the conflict should be defined, and that it should then be passed on to those involved to try to find a solution. If, at the end of the day, no solution is found, it is absolutely crucial, in our view, that this becomes the responsibility of the Secretary of State as the ultimate goal of any accountability or responsibility within the service itself.

In this House I think we have got much closer to recognising how significant this final duty over a range of issues is. The Secretary of State is open to accountability to Parliament and to the general public, the people of England, so we say in Amendment 274E that if no solution can be found, there should ultimately be a reference back to the Secretary of State, who then has to make this ultimate decision. We have deliberately framed it to say that he is the ultimate decider, not one of those deciders on the way, although Monitor certainly has a role in resolving the conflict.

Since the future health service will in part be defined by what is seen to be the most significant of those duties, I think the Minister and most of us in this House believe that that central duty has to be responsibility to the patient and to the care and protection of the patient. I urge us to give this very serious consideration, because it is part of the pyramid that was set out in the brilliant speeches in an earlier debate by the noble Baroness, Lady Thornton, by my noble friend Lord Clement-Jones, and by my noble friend Lord Newton of Braintree, who has now had to leave us. I therefore propose the amendment in that spirit. It puts into a microcosm the concept of where the most responsible and urgent duties on Monitor lie.

[Earl Howe]

My Lords, I think that this has been a very useful debate. The Bill provides a more autonomous NHS, and it does so in order to deliver high-quality services and value for money. Monitor, as sector regulator, would establish clear standards and rules to protect patients’ interests in the provision of NHS services. Monitor would be required to lay its annual report and accounts before Parliament and have the accounts audited by the Comptroller and Auditor-General. It would also need to comply with other rules and guidance that cover central government public bodies, including the seven general principles of public life, the Treasury’s guidance document, Managing Public Money, and rules on corporate governance. Monitor would also have to respond in writing to parliamentary committees and any advice from HealthWatch England. The Secretary of State would oversee Monitor’s performance of its functions to ensure that those functions were performed well. The Secretary of State would not have control over Monitor’s day-to-day decisions, but would hold Monitor to account for discharging its duties. That point is extremely relevant in the context of a number of amendments in this group. The Secretary of State would appoint the chair of Monitor and other non-executive directors and would have to give consent to the appointment of the chief executive. I hope that point answers Amendments 260F and 260G.

--- Later in debate ---

[Baroness Thornton]

Did the Government consider any bodies other than the Competition Commission as being appropriate to fulfil this role? If so, which were they and why were they not thought to be appropriate? This is a rather heavy-duty form of monitoring Monitor.

[Baroness Williams of Crosby]

I am puzzled by why the Government do not see the Competition Commission’s overseeing of this area of Monitor’s responsibilities as not being neutral. Would not a body such as the Office of Fair Trading be more appropriate? It has a reputation not only of being more neutral but of having shown in the past particular sensitivity and understanding of health as a service provided to the people of England.

[Earl Howe]

I think it is a question of specialist expertise. I do not regard it as heavy-handed to have the Competition Commission acting in this role—which, we hope, would not be a role that it would need to perform with any regularity. It is an established body. It would apply a public interest test rather than a competition test, which is important. One has to question whether the Office of Fair Trading is the right body. I will of course reflect on my noble friend's suggestion, but we believe that the Competition Commission is a good fit in this sense. If the Secretary of State were to play the role of adjudicator, that would be very detrimental. The result would effectively be the politicisation of Monitor's decisions. As I said earlier, that in itself would undermine the Secretary of State's role in holding Monitor to account for the outcomes that it achieves.

The noble Lord, Lord Warner, referred to conflicts in the role of Monitor in overseeing foundation trusts. We are quite open about the fact that there is a risk of conflict of interest here. That is why it is essential that the Bill sets out a robust way for conflicts to be resolved. In a later debate, we can discuss that at greater length. I listened with interest to the speech of my noble friend Lady Williams, and I will of course reflect further on everything she said, as I always do. I think I have covered the main issues raised by the amendments in this group.

--- Later in debate ---

[Lord Warner]

Is the Committee happy for me to continue? I consider that research evidence as is available, such as that carried out by Dr Zack Cooper at the LSE, shows the benefits of competition and supports the view that competition, when used sensibly, improves services for patients and can indeed save lives. It is perfectly possible to support both competition and integration; they are not mutually incompatible. I shall not pursue the evidence base for my views today. However, I should like to clarify briefly the circumstances in which we should be supporting the use of competition in the NHS in the best interests of patients and why it is important to tackle barriers to entry to the NHS market. It is important to recognise that we already have an NHS market in which many NHS providers do indeed compete for patients against other NHS providers. The Bill does not suddenly inject competition into the NHS but merely tries to impose some better rules and a system for regulating that competition.

There are basically three sets of circumstances in which competition could—not should—be used. The first is that, as a matter of principle, all NHS providers should be subject to market testing periodically. The second is when there is clear provider failure and it seems sensible to test the market to establish the best set of arrangements for replacing the failed incumbent. The third is where there is a set of circumstances when the NHS itself—the commissioners in practice—wish to change significantly the way in which services are provided and it is not apparent that the current incumbents can adjust quickly to the patient’s needs. The first set of circumstances has often caused a great deal of angst in the discussion of competition. I certainly do not start from that position. I believe that it is the second and third areas that I have described where we need to examine whether there are real barriers to entry by new providers, irrespective of whether those providers come from elsewhere in the NHS—from the private sector, social enterprise or the voluntary organisations.

Amendment 266 is concerned to establish much more clearly than now what the barriers to NHS market entry are. We know from the work of the collaboration and competition panel that primary care trusts have behaved in anti-competitive ways and have frustrated the best interests of patients. We know from the experience of the East Surrey nurses when they tried to set up a social enterprise how frustrated they were at changing themselves from NHS employees into a social enterprise so that they could compete for NHS business. We know that across the voluntary sector, voluntary organisations have been frustrated over their attempts to compete for NHS services over a long period of time. We also know that many private providers of services find the tendering processes for providing NHS services prolonged and excessively expensive and that they are too often frustrated by shifting political opinions about the desirability of competition.

I could go on with examples of the way in which the NHS has effectively shut the door to new entrants. Some of the most recent examples are the ways in which many primary care trusts divested themselves of their provider services without any proper system of market testing when it was clear that many of those services were extremely inefficient. We need to take the NHS out of its comfort zone in a future where it faces a huge set of demographic and financial challenges. Keeping it in the NHS family is no longer acceptable or in the public interest. We need an independent, authoritative and robust analysis of the barriers to entry to the NHS market so that we can consider what action should be taken to remove those barriers. Amendment 266 proposes that Monitor does this within a year of Royal Assent. I believe that Monitor would welcome being given this assignment but I would be more than willing to consider alternatives if the Government thought, for example, that the Office of Fair Trading was a more appropriate organisation to do the job. It is important that we get this job done as speedily as possible. I also support Amendments 278 and 287 to which the noble Lord, Lord Patel, will be speaking and to which I have added my name.

[Baroness Williams of Crosby]

My Lords, I am very grateful that Amendment 265C has somehow managed to escape from the tsunami of amendments so that I can bring it to the Committee’s attention very briefly. It is again an amendment that seeks to make sure that when competition is allowed or encouraged—the noble Lord, Lord Warner, has spoken on these lines himself—it should be because it clearly improves the quality of health and the quality of provision within society as a whole. The purpose of Amendment 265C is to make it clear that competition is welcome when it improves the quality of the service; it narrows inequalities; it ensures, in particular, that there should be a better outcome as a result of that competition; and it is, therefore, a relatively qualifying condition to permitting competition to flourish.

We have heard a number of very well informed speeches in the House, not least from the noble Baroness, Lady Meacher, to the effect that in some situations competition can clearly encourage innovation, can improve new approaches and can help in providing the NHS a way forward to deal with the huge problems that we all recognise exist. However, in large part we are also very worried about the idea of competition as the ruling principle of the health services in this country, and we heard a very moving set of evidence from the noble Lord, Lord Owen, and the noble Baroness, Lady Thornton, about the devastation that unrestrained competition can exercise on a health service.

However, having spent 10 years of my life in the United States, I absolutely corroborate that. I know far too many people, one or two of whom are National Health Service refugees to this country, of outstanding talent, who are not in a category where they can afford the huge prices that are charged for complex and chronic conditions in the United States. How do we achieve this difficult balance so as to have competition that improves the quality of the health service but does not bring about the devastation of a great many human beings because they simply cannot afford the cost of complex operations or looking after the chronically ill? The situation of the chronically ill in the United States is pathetic in very many cases.

Therefore, this amendment and several others in this group would enable us to walk this delicate line in a way that permits competition, but competition that is in the interests of the patients of the health service and not competition that could devastate the health service itself.

[Lord Clement-Jones]

My Lords, I wish to speak to Amendment 287B. In his speech at the outset of today’s debate, the Minister said that there were four areas where he was considering amendments to Part 3, which deals with Monitor. If memory serves, he said there were areas where the Bill had not been completely amended to conform to the Future Forum report. This is a particular example of that.

Clause 96, the supplementary conditions, says it is possible for Monitor to include conditions that require,

“the licence holder to do, or not to do, specified things or things of a specified description … within such period as may be specified in order to prevent anti-competitive behaviour in the provision of health care services for the purposes of the NHS”.

Of course, that mirrors the duties of Monitor as set out in Clause 59, which says:

“Monitor must exercise its functions with a view to preventing anti-competitive behaviour”—

so far, so good. However, Monitor also has a duty to,

“exercise its functions with a view to enabling health care services provided for the purposes of the NHS to be provided in an integrated way where it considers that this would”

improve quality and so on. There is no mirror of that particular duty in the supplementary conditions in Clause 96, which is why this amendment adds the following wording:

“or for the purposes of encouraging the integration of services in the interest of people who use such services”.

A number of other examples are the subjects of amendments as well and will no doubt come up in the course of the Bill. It seems to me that the equal and opposite to the anti-competitive duty of Monitor, which is enshrined in the ability to set conditions and so on, is not mirrored in the integration of services, and this is an extremely good example of that. I very much hope that the Minister will be able to indicate that it is simply an oversight and it should be included in the Bill.

--- Later in debate ---

[Lord Davies of Stamford]

My Lords, I find it not entirely surprising that a number of us this afternoon have found it difficult to know at exactly what point we should be making the contribution that we wanted to make, because of course there is an immense overlap between the themes that all the clauses we have been reviewing today have brought forward.

All those clauses, and most of the amendments to them, necessarily derive from a single decision by the Government. This was the decision that they wanted to distance the Secretary of State from the operations of the health service and superimpose a set of bureaucracies and regulators that would in future take on the responsibility that the Secretary of State has had until now. That was a decision that has had, and will have, a lot of consequences.

Three consequences in particular are very unfortunate. The first is that there will inevitably be a lack of transparency. You may impose on Monitor the obligation to produce the annual report and occasional statements on the decisions it takes, and impose on clinical commissioning boards, foundation trusts and other bodies within the NHS an obligation to try to relate to the local public and have meetings and report to them and so on. However, you will never get the degree of close oversight that you can get in Parliament when the important decisions are taken by the Secretary of State in Parliament, where they are subject to a weekly or, when necessary, daily scrutiny. That does not apply to the functional decisions, which I will come to in a moment. That is the first inevitable cost of this proposal by the Government.

The second consequence is the cost to democracy. People will no longer feel that the health service is being delivered by their democracy, or is part of their democracy. It will increasingly be delivered by relatively remote and autonomous bureaucracies which will no doubt be staffed by the most high-minded people—a sort of platonic mandarinate who will certainly deliver the best they can for the human beings in their care. However, that is a very different concept from the democratically driven concept of the National Health Service on which a lot of us were brought up and which was, of course, the vision of Beveridge and Bevan.

The third consequence, to which I turn in specific detail, relates directly to the clause and amendments before us. Many contradictions and conflicts of interest will be created in the organisations and bureaucracy that take over the Secretary of State’s role. Until now the Secretary of State has been responsible for taking those decisions that are properly political decisions in the true sense of the word. They involve priorities, value judgments, trade-offs and strategic decisions for the future, which have properly been decisions of the Secretary of State up to now. Many of them will now be taken by someone else, particularly Monitor, which will take over from the Secretary of State the job of making sure that the whole system works. I have no doubt that the Government hope that that will work out well, but I repeat that I think that the effort, the initiative, is misconceived.

Two types of conflict will inevitably be structurally hardwired into Monitor. There will be the functional conflicts to which I have already referred. Monitor has specific, specialised responsibility for licensing and overseeing foundation trusts and making sure that problems are ironed out. That is one particular sector on the provider side of the equation. It now has a whole lot of responsibility for everyone else on the provider side and for the supplier side. There are some inherent conflicts.

There are also philosophical conflicts. Monitor is being given very many criteria. Clause 59 sets out what probably most of us would write if we were asked to write the most important targets of the health service on the back of an envelope. However, there is no attempt to establish a hierarchy and there will be conflicts between them the whole time. In the short term at least there could be serious conflicts between increases in efficiency, for example in access and improvement in care, and in all the other virtuous objectives set out in that clause.

The noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Finlay, have brought forward their own solution. They say, “Well, let us take one criteria, make that the overriding criteria and then Monitor won’t have a conflict any more”. That is how I understand the logic of what they propose. Perhaps I may disagree for a moment with the noble Baroness, Lady Finlay. It is not right to say that she builds on the suggestion made by the noble Lord, Lord Clement-Jones, because her proposal comes under different criteria. The noble Lord thinks that the safety of the patient is the most important thing, and the noble Baroness thinks that it is not to place too great a burden on providers. Both are admirable considerations, but by definition they cannot both be the overriding determining consideration where there is otherwise a conflict between desirable objectives. That will occur the whole time. These two amendments highlight the problem created by the way that the Government have decided to approach the future of healthcare in this country.

I turn now to the Government’s answer to the problem that I have set out. It is quite extraordinary. Clause 63(2) states:

“Monitor must act so as to secure that there is not, and could not reasonably be regarded as being, a conflict between”,

its responsibilities, which in this case are foundation trusts, and the rest. How can Monitor possibly act as if there is not conflict if there is a conflict? You cannot just pretend that there is not conflict and think that that means that the conflict has disappeared. That does not work at all. The same thing applies to subsection (3), which states:

“Monitor must ignore the functions it has under sections 109 and 111 when exercising … its functions under Chapter 2 … and Chapter 4”.

What exactly does that mean? It cannot be ignored. Of course, Clause 109 is about when a foundation trust runs into difficulty. When that happens the Government cannot wish away the fact that the foundation trust has a difficulty; they have a responsibility to resolve it. Perhaps they mean that there will be a department looking after the foundation trust’s problems but that it will not be allowed to speak to the departments with the general responsibility that Monitor exercises across the rest of the health service.

If that is what the Government are saying, perhaps they should say it explicitly. But if they are going to set up two separate departments which will not be allowed to talk to each other—there is a kind of negative synergy in an organisation having two functions of that sort—why not have two separate organisations? What is the logic for having Monitor at all if it will have to operate in this extraordinary way? I have intervened because the Government need to tell us clearly, before we agree Clause 63 and accept this Bill into the legislation of this country, exactly how they propose to grapple with the serious problems that their decision has created. I do not think that we will accept in this House that their decisions can simply be wished or thought away.

[Baroness Williams of Crosby]

My Lords, I can address my Amendment 274ZB very quickly. I have to admit that it arises from a fog of misunderstanding. Frankly, I do not know what this subsection means. Under Clause 63(3), there can be a Monitor intervention in a situation where Sections 109 and 111, which address themselves to various aspects of foundation trusts, can be completely waived without any regard to the fact that they are looking at competition and pricing as regards profoundly sensitive subjects. I wish that I could say that I know what it means but I do not. Instead I have put down an amendment which simply proposes leaving out that subsection. If the Minister can enlighten me, perhaps I will put it back in again. At the moment, I simply do not know what I would be putting in or out. I apologise to the House for such absurd and detailed ignorance, to which I confess with great humility. But I hope that the Minister will be able to enlighten me because so far no one else has been able to do so.

[Lord Beecham]

My Lords, at Second Reading I made a jocular reference to Monitor, recalling that it is also the name of a carnivorous reptile. Having regard to the range of duties and responsibilities that the Bill seeks to impose on Monitor and the number of organisations with which it will have to work—ranging from the Competition Commission, the Office of Fair Trading, the national Commissioning Board, clinical commissioning groups to foundation trusts—carnivorous seems to be the wrong word. Omnivorous would appear to be a better term for the job which the Government seek to give to this unaccountable body.

We certainly accept the need for an organisation—Monitor is no doubt the appropriate one—to be responsible for the rigorous financial regulation of all providers to the National Health Service. We approve the concept of a licensing scheme. Where we part company from the Government is that we do not accept that the handing over of economic regulation of the whole of the health service to an unaccountable quango—it is unaccountable—is the right course of action. We think that oversight of the whole system should remain vested in the Secretary of State, as opposed to the detailed regulation of individual parts of that system. Therefore, we think that there are two distinct roles.

We are particularly reluctant to envisage the wider scope that the Bill seeks to confer on Monitor in the light of what its chairman, the noble Lord, Lord Owen, who is not now in his place, reminded us this morning. He was at pains to make it clear that there is an analogy between the health service and the utilities. He cited the railways, gas, water and electricity. The whole nation of course resounds with rejoicing from the users of the railways, and gas, electricity and water, who are thrilled with the services that they obtain and the prices that they have to pay. That, apparently, is the model which recommends itself to the chairman of Monitor.

Much has been said in some thoughtful, forceful and frankly brilliant expositions today by the noble Lords, Lord Clement-Jones and Lord Owen, the noble Baroness, Lady Meacher, and other noble Lords about the need to have a discrete function of dealing with the foundation trusts and the rest of Monitor’s responsibilities. Some of that is encompassed within amendments, such as Amendment 274ZB, that are before us this evening. That seems to be right: in particular, if the fears of the noble Lord, Lord Owen, about the position of foundation trusts in relation to European competition law are to be realised, then it is all the more necessary for a continuing role for Monitor in relation to foundation trusts. We certainly see this not merely as a transitional provision, but one for the longer term.

There is a job for Monitor to do, but there is a clear risk of conflict for the organisation in the terms that the Bill now provides. They may be so conflicted as to require the attentions of the noble Lord, Lord Alderdice, if they have to resolve these potential conflicts of interest, and that would not be in anybody’s interest. The Government really should think again about what they expect of Monitor and how it is to be rendered accountable, because there is clearly a widely shared view in the Committee and the House generally that the present prescription is simply not adequate for the purposes that the Government wish to see carried out.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Tuesday 13th December 2011 Lords Chamber

I welcome the statement in the Explanatory Notes to the Bill that contracted-out healthcare services are covered by the Human Rights Act, and the Minister’s assurances in this regard would be equally welcome. But these do not have the force of law. Moreover, the Equality and Human Rights Commission does not believe that case law supports this view. Nor should we have to rely on an elderly or disabled service user having to incur the hazard and expense of going to court to vindicate their rights for us to clarify the law. At all events, it is not the same as having it in black and white in the Bill, so I very much hope that the Minister will respond sympathetically to this important amendment.

[Baroness Williams of Crosby]

My Lords, I strongly support the two very powerful and convincing speeches by the noble Baroness, Lady Greengross, and the noble Lord, Lord Low.

I add only a couple of points. First, it is extremely important for the integration of social care from local authorities with health service healthcare to have a similar regime of rules and standings applying to both. All of us in this House have said repeatedly how much we believe in the integration of these two attempts at providing proper care for older people, chronically ill people and disabled people. It is therefore important that we set a standard which is common between the two. That is the first reason why we should all strongly support the amendment that is before us.

The second reason, from my point of view, is that I very much like the phrases used in the amendment, which state in effect that this kind of service is a public service. It is, in a way, ennobled by the fact that it is a service to the public generally, regardless of whether it is provided by the voluntary, independent or NHS sector. That is also very important.

The third point I briefly make is that it has implications which we have to face up to. There is no time to discuss this tonight. But if we actually want there to be a huge improvement in the relationship between the staff of health service and local authority care organisations, whether voluntary, private or NHS, and the elderly and vulnerable people whom we are talking about—and we do want that—then, as this quite clearly implies, the staff themselves must be treated well. It is no good having profoundly exploited, overused, overcriticised staff and expecting them to live up to the great principles of the Human Rights Act. To my mind the importance of this amendment is not just that it passes. It has clear implications for the training, education, support and attitude towards NHS staff, who too often are heavily criticised for what is a difficult yet often extraordinarily well conducted job. In that spirit I strongly support the amendment of the noble Baroness, Lady Greengross, and the noble Lord, Lord Low.

[Lord Warner]

My Lords, I also support the amendment of the noble Baroness, Lady Greengross. I do so from the perspective of someone who as a special adviser was involved in the framing of the Human Rights Act in 1998. At that time, much of the thinking in the devising of that Act was on the basis that publicly funded services were pretty much synonymous with public delivery of those services. Much of the language around public functions and public authorities was based on that assumption. In fact, that was already out of date at that particular time. Since then, we have never really put this point beyond doubt in legislation. It is timely to do so now, when so many of the services in people’s own homes are contracted out by public bodies to voluntary and private providers. It is a lacuna in the arrangements, despite some of the assurances given by Governments of both persuasions since the Human Rights Act 1998.

--- Later in debate ---

[Baroness Williams of Crosby]

My Lords, at this late hour I will keep the Committee only for a moment or two. I congratulate the noble Lord, Lord Warner, on a courageous, statesmanlike and important amendment. We all believe that there have to be huge changes in the NHS, those of us who support it very strongly just as much as those who are critical of it. The noble Lord has thoughtfully tried to produce a machinery of government that will enable some of these extremely difficult decisions to be made. Perhaps I may say without, I hope, offending anybody, that there are echoes here of what happened to the Governments of Greece and Italy—flatly refusing to look at the realities, refusing to change, and ending up with effectively a total loss of trust in the democratic system. I believe that this amendment is an attempt to try to get away from that and to begin to mobilise a much larger section of the public for the changes that have to be made. That can be done only through open debate and the willingness of politicians to get up and express the need for change and their support for it, not by hiding away and doing the popular thing when that is almost certain to bring about the destruction of the remaining health services in any effective way.

I congratulate the noble Lord and say that he is brave to have done this, and to point out rather harshly that we all have to learn that we cannot at one and the same time take part in Chase Farm demonstrations and Chase Farm decisions. What that means is that, inescapably, the Secretary of State has to be at the centre of this operation, unpleasant though it is, because—as most of those who have been in Government know—either you have to take unpleasant decisions or you have to resign. What you cannot do is dodge the issue by saying, “It is nothing to do with me”, because in the end that will not carry the public with you. It is the public we need to mobilise behind us.

[Baroness Murphy]

My Lords, I have added my name to this amendment because it fills in the hole in this Bill that I am still worried about. Clauses 95 and 96 contain good ways of intervening early in individual failures on quality and the financial governance of providers that will enable Monitor to get in and do the business it needs to do with individuals, but what we have not got are the mechanisms that will allow Monitor to address at an early stage failures that can be seen coming up in a local health economy.

I have already experienced in the current regime how difficult it is for a regulator to get discussions going locally between trusts and local commissioners on how to address a local service failure. I well remember the whole of the Monitor board going down to the south-west—the trust will remain nameless—to address a failure of the local economy, to discuss it with the strategic health authority and to attempt to come to a conclusion and come up with a plan about how the local economy would solve the problem. The Minister has already mentioned bailouts. The solution was that the strategic health authority would give a bung, which it duly did and which sent the problem away. But in fact the problem did not go away because the local economy was still failing.

It is this early failure—where you can see that things are mounting up, that it is not going to work and that the sums are not going to add up—for which we need some mechanism. This is a clever scheme, but it may be too interventionist. It may be put into blocks which are too chunky to be inserted into the Bill as it is. But we need to address the problem of failure before it gets to the point of administration. As the noble Lord, Lord Warner, says, Monitor will not want to implement the failure regime and the administration regime until things have gone desperately awry. It should not implement the failure regime when the problem is an economy problem and not a trust problem. We need to have some reassurance that there will be some support for local people who are trying to tackle this in a meaningful way.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Wednesday 7th December 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, it is important to spend a moment or two explaining the purpose of a risk register. One of the difficulties that has arisen over recent years is that risk registers have been used in the planning of long-term substantial projects by both the last Labour Government and the present coalition Government. When a risk register is produced, the effort is to consider all the contingencies—some of them highly unlikely—which might arise in relation to that project. There will certainly be some information in that category that would enable the discussion of any Bill of sufficient significance passing through Parliament to be treated with better knowledge than might otherwise be the case. It is also true that under the terms of the relevant legislation, particularly under Section 35(1)(a), there is an exemption category which allows those registers that directly affect policy formulation to claim an exemption from the output and effect of information legislation.

What we now know happened in this case is that when the Information Commissioner considered the point put to him by the original seeker after information, he had to weigh up on the one side the exemption argument and on the other side the argument of the public interest. He himself indicated in his original findings in early November this year that it was a very narrow balance, but that he believed, as the noble Baroness has said, that the issue was sufficiently in the public interest for him to overrule the exemption. There is a legislative right to appeal, of course, and that right to appeal was taken up by the Department of Health on the grounds that this is to do with policy formulation and therefore falls within the exemption. It asked the commissioner to overrule the application. The commissioner decided to uphold the application on the balance of considerations both ways, and the Department of Health then decided to use its right to appeal and it is that appeal which is now about to come before the tribunal. My understanding is that both sides in this argument, the complainant and the defendant, have asked for more time in order to prepare their cases. Only after that will the tribunal be able to make a ruling.

Along with the noble Baroness, I am of the view that it would be helpful to the Report stage of this Bill to have as much information as can possibly be made available. However, the proper way to do that is to allow the tribunal to reach a judgment. My understanding is that if both parties to the tribunal were to request a decision to be made as quickly as possible after the cases have been prepared, the tribunal might be agreeable to a rapid decision. That is very important because nothing can happen before such a decision and it would be unfortunate for the House if the result was not known well before the Bill reaches Report.

I ask the Minister whether he could consider such a joint approach to the tribunal, recognising fully that the two sides must be able to prepare their cases, to see whether it could not act much more quickly than is its usual practice in order to allow the House to have the information if, indeed, the tribunal decides not to uphold the appeal. If it does uphold the appeal, it will then of course be a different case and there will not be any further argument about it. I put that to the Minister because I believe it is very important to settle this issue quickly. I fear that it may hang like a dark shadow over the whole of the Report stage. It must be decided one way or another either before or very soon after the Report stage begins when the House resumes in the new year.

[Lord Pannick]

My Lords, I understand the wish of the Government to appeal against the decision of the commissioner because of the general issues of importance raised under the freedom of information legislation, but the issue raised today by the amendment does not depend on the proper answer to the question that was before the commissioner and which will be before the tribunal. That is because the issue before the commissioner and the tribunal was the proper balance of interests—a very difficult balance of interests, as the noble Baroness, Lady Williams, has said—between the public interest in having this information and the very real need to ensure that risk registers in general are not disclosed. But the issue before the House is different. It is the issue of whether the Members of this House should be given information that the commissioner in his judgment, having seen that information, has said will be of considerable importance in enabling the Members of this House to perform our scrutiny function in relation to this vital Bill.

I cannot share the opinion of the noble Baroness, Lady Williams, that this is the same issue as will be before the commissioner. It is a matter for the judgment of this House how best we perform our scrutiny function. Whatever the balance may be, in general, between the public interest in disclosure and the very real interest in not disclosing confidential information that is on a risk register, the balance is surely very different in principle when we have before the House a Bill that we are scrutinising and considering. It would, I think, require an overwhelmingly strong argument to justify non-disclosure to this House of information that is relevant to our scrutiny function. I therefore hope that the Minister will be able to say today that he is prepared to disclose to this House at least the substance of the information that is contained in the risk register, so that we may fully perform our scrutiny function in relation to this vital Bill.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Wednesday 30th November 2011 Lords Chamber

Moved by

[Baroness Williams of Crosby]

153: Clause 20, page 23, line 34, leave out from “failing” to “, and” in line 35 and insert “to exercise its functions in a way that the Secretary of State considers to be in the best interest of the National Health Service”

[Baroness Williams of Crosby]

My Lords, may I offer a quick explanation to the noble Lord, Lord Hunt, and the Members of the Committee, as to why we have asked for these amendments to be separated? I am very conscious, as I sit in the Committee, of what is often said on the “Today” programme, when somebody is asked the question “How would you improve the health of the entire population”, and the interlocutor says “Please answer briefly”, which means “You have four seconds”. I shall be as quick as possible.

This amendment, along with Amendment 152—which we are not debating at present, as I am merely explaining why we have separated them—is deeply significant. This will emerge much more clearly when my noble friend Lord Marks of Henley-on-Thames speaks in a few moments’ time, but it is important because it deals with the fact that the earlier Amendment 152—I have to refer to it to make any sense of my current remarks—would actually remove all powers of intervention in the current Bill. The powers of intervention associated with the Secretary of State are directly related to the failure of the board or of the CCGs.

The deletion that the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, have moved, would take the whole of the failure regime out of this Bill. It would therefore be directly in conflict with one of the principles of the Bill, which is the principle of decentralisation. It moves back to the Secretary of State only the direct intervention with the board and the CCGs. It is well known now, from the long and explanatory speeches around this whole debate, that the Secretary of State passionately believes that decentralisation is one of the major principles of the Bill.

Therefore, my noble friend will explain why Amendment 153 is not on the same lines at all as Amendment 152. It is a different argument: there should be the right of intervention by the Secretary of State, but it should be limited in a way that saves the decentralisation principle. Why does it do that? It does that by referring back to the Secretary of State’s overall responsibilities for the health service as a whole—which we all accept as a crucial element of the constitutional discussions now going on—as distinct from a direct intervention at the level of the board and the clinical commissioning groups, which would be to restore the very central principle that the Bill has rejected. This is not a deceptive amendment simply about some powers; it is in fact to make it clear that there is a distinction between decentralised responsibilities by the board and the CCGs and the essential, ultimate right—expressed, for example, in the amendment of the noble and learned Lord, Lord Mackay of Clashfern, at an earlier stage—of the Secretary of State to have responsibility for a comprehensive health service while not intervening in a detailed way in the clinical commissioning groups or the Commissioning Board. I will now pass the further part of the argument on to my noble friend Lord Marks of Henley-on-Thames. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, this is a most significant area of the Bill, as my noble friend Lady Williams of Crosby has said. This group concerns the regime whereby, in the event of a significant failure, the Secretary of State can intervene in the board’s exercise of its functions. That is in Amendment 153. The board in its turn can intervene in the exercise by a clinical commissioning group of its functions. That is the purpose of Amendments 220ZAA and 220ZAB. I would add Amendment 220ZA, which is not currently in the list of the group, which simply amends the title of the proposed new Section 14Z19. Also in the group is Amendment 277, which removes the restriction on the Secretary of State’s intervening where there has been a significant failure by Monitor to act in relation to a particular case.

May I first address the question of the Secretary of State’s intervention in the board’s exercise of its functions? When we debated at some length Clauses 1 and 4 and the proposed new Section 13F, noble Lords were clear that whatever may be the outcome of those discussions and debates on those clauses, this House must ensure that the Secretary of State will have powers and functions that are up to the job of enabling him or her to carry out those overarching duties. Those duties involve him or her in carrying ultimate responsibility and accountability to Parliament and in the courts for the NHS. We should remind ourselves that my noble friend the Minister and my honourable friend Mr Paul Burstow have repeatedly assured Parliament that the Government are determined to make it clear that the Secretary of State will remain responsible and accountable for the NHS in Parliament and at law.

--- Later in debate ---

[Earl Howe]

There are no areas that will be out of bounds to parliamentarians in the sense that the noble Baroness has said. What may happen is that the Secretary of State or other Ministers may respond directly, or in a way that draws upon advice that they have received from, let us imagine, the NHS Commissioning Board; they may quote what the board has said and say that this is the advice that they have received, or they may, as with some agencies at the moment, refer the parliamentarian to that body directly. It will vary. The main question that the noble Baroness asks is whether parliamentarians will be inhibited in some way. The answer is no.

[Baroness Williams of Crosby]

I should like to add a few words before considering whether or not to withdraw this amendment. The noble Earl, Lord Howe, has obviously made the best possible case he can, but given the very extensive doubts on all sides of the House, I feel that he ought to be asked to address this issue very clearly. It is bound up in many ways with the whole issue of the responsibilities and accountability of the Secretary of State which is under discussion at the present time. I will withdraw the amendment on the understanding that it will come back on Report when we have had an opportunity to see how this fits into the whole structure of responsibilities of the Secretary of State.

Perhaps the most simple answer to the question that was asked by the noble Baroness, Lady Wheeler, is that on the basis of Amendment 153 it would be impossible for the Secretary of State to say, “Not me, guv” in response to the point made by the noble Lord, Lord Newton of Braintree. This is so central, and so serious, that in withdrawing the amendment I make it absolutely clear that I do so in order to give an opportunity to the department and to the Minister to consider how this may be best fitted in to the responsibilities and accountabilities of the Secretary of State over the whole of the health service. I beg leave to withdraw the amendment.

Amendment 153 withdrawn.