Health and Social Care Bill
Debate between Earl Howe and Lord Lucas(12 years, 12 months ago)
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Earl Howe
My Lords, the standing rules will set the ongoing legal requirements for both the NHS Commissioning Board and the clinical commissioning groups. We intend to use the standing rules to replicate core elements of the current system, setting out the ongoing requirements, which will predominantly replace existing directions from the Secretary of State. As the standing rules will set out system-wide generic requirements, they will not apply to individual CCGs. While the rules will be kept under review, we do not expect to update them annually.
Clause 17 confers powers to make standing rules in a number of specified areas. The powers will be used to maintain the existing arrangements for NHS continuing healthcare—that is, care arranged and funded solely by the NHS for individuals outside hospital who have ongoing healthcare needs. They will also set out the mandatory terms to be included in commissioning contracts, set requirements around the provision of information and provide the legal basis for certain patient rights in the NHS constitution.
In addition to the particular areas specified in the clause, the Secretary of State will have a backstop power to make standing rules in other areas, under subsection (7)(c) of new Section 6E. He can require the board and clinical commissioning groups to do other things which he considers necessary for the purposes of the health service. The power simply provides a prudent degree of system flexibility to take account of changing circumstances in the NHS.
Noble Lords have tabled a number of amendments regarding the scrutiny that the regulations will receive, both through consultations and by Parliament. The noble Lord, Lord Hennessy, spoke with great force and persuasiveness on this theme. There are two elements to the scrutiny question—public consultation and parliamentary scrutiny. I can assure the Committee that in line with good practice across government, we fully intend to consult publicly on any new proposals for standing rules. The Health Select Committee would have the opportunity to examine proposals, and Ministers and the department would of course engage constructively with the Committee on any inquiry. However, I do not think that it is usual practice for legislation to set expectations on how the Government should work with Select Committees or on which areas the committees should focus.
Questions have also been raised about whether the board should be required to consult interested parties, such as representatives of CCGs and providers, before it drafts standard contract terms. We believe that regulations should be flexible on that point and minor changes will not always require consultation. Therefore, the regulations should be able to provide for this flexibility where necessary.
As to questions of parliamentary scrutiny, the standing rules will be subject to the negative resolution procedure, with the affirmative procedure used if the Government exercised the backstop power to make standing rules to require the board and clinical commissioning groups to do other things that the Secretary of State considers necessary for the purposes of the health service. The Delegated Powers and Regulatory Reform Committee of your Lordships’ House was satisfied with these arrangements, as set out in its recent report on the Bill, which I was pleased to note.
The noble Lord, Lord Hunt, asked why the standing rules are not subject to the affirmative procedure. The rules will replicate current provisions in existing legislation, so we believe that the negative procedure provides for adequate scrutiny of these provisions. However, we agree that the affirmative procedure is important in other cases, which is why the broader power to allow the Secretary of State to make regulations which require the board or CCGs to do such other things as the Secretary of State considers necessary for the purposes of the health service—under subsection (7)(c) of new Section 6E, to be inserted into the NHS Act under Clause 17, which is a very generalised provision—will be subject to the affirmative procedure, which we think is the right balance.
Incidentally, the noble Lord remarked that, in his view, one cannot move in this Bill for delegated powers. I disagree with that. I think that this Bill represents a very significant transfer of power from the Executive to Parliament through placing far more detail in primary legislation as to the structures and workings of the health service than we have ever had before. For example, this Bill enshrines a process for the tariff, which is currently nowhere to be found in legislation.
The noble Lord asked about consultation on the standing rules themselves. The consultation to which the noble Lord referred is consultation by the board on standard contract terms with interested parties. Consultation on the standing rules themselves will be consultation by the Secretary of State. We intend to consult on these in line with good practice, as I have indicated.
Noble Lords also raised concerns about integration. We have discussed this topic at some length already, so I will be fairly brief. I can reassure noble Lords that the board and CCGs will be subject to the public sector equality duty set out in Section 149 of the Equality Act 2010—I am looking here particularly at the noble Baroness, Lady Wilkins, whose points I fully took. This is in addition to the duties set out by this Bill that require the board and CCGs to have regard to the need to reduce inequalities in outcomes and access to services when exercising their functions. I agree with the noble Baroness that awareness, training and understanding of the particular needs of people with disabilities are absolutely vital for all health bodies if they are to ensure that the improvement in outcomes that is needed in this area can be realised. We keep coming back to the outcomes framework. We should not forget it. It is not necessary to put it in the Bill but it does overarch the Bill, and we believe that the Bill creates the framework for the NHS to improve through the combination of clinically led commissioning and strengthened joint working.
Turning to the concerns raised by my noble friend Lord Lucas in his amendment, I draw the Committee’s attention to the provision that enables the standing rules to set out the mandatory terms to be included in the commissioning contracts. We expect that contracts will include, as now, provision to ensure that private providers are required to assist and co-operate with commissioners to enable them to comply with their disclosure obligations under the Freedom of Information Act. The underpinning of this is that, where a provider is not a public authority—that is, not an NHS trust or an NHS foundation trust—there is a provision in the current contracts for private providers to do exactly as I have indicated. I can tell my noble friend that we intend to use the standing rules to continue this provision, and I hope he will feel that that is entirely in keeping with, and goes with the grain of, his Amendment 92.
I also want to touch on the provisions that relate to EU obligations. These should be read alongside Clause 16, which allows the Secretary of State to delegate EU functions to the board and clinical commissioning groups. It sets out two types of direction-making power: one to direct about the exercise of delegated EU functions and the other to direct about any functions to ensure that we can respond quickly to potential breaches of EU law. Where there are ongoing, predictable requirements that derive from EU obligations but that do not relate to functions delegated under Clause 16, the power in the standing rules will be appropriate. We think that it is preferable to put such requirements in regulations rather than directions as this allows for parliamentary scrutiny and certainty for the NHS.
In the light of the details that I have set out, I hope that noble Lords who have spoken will feel able to withdraw their amendments.
Lord Lucas
Does my noble friend want my 15-minute speech now or will he promise me a meeting before Report stage? Given judgments that have already been made in parallel cases in other parts of freedom of information law, I do not believe that the solution he offers will work and achieve what he has promised. I shall be very happy to swap him a meeting before Report stage for a 15-minute speech now.