The NHS

Lord Hennessy of Nympsfield Excerpts

Thursday 5th July 2018 Lords Chamber

[Lord Hennessy of Nympsfield (CB)]

I add my congratulations to the noble Lord, Lord Darzi, on an inspiring opening speech.

In the life of a nation, there occur a few ripe, golden days—the kind of day that you want to “bite to the core”, to borrow a line from the poet Edward Thomas. Undoubtedly, 5 July 1948 was such a day. The British state came as close as it ever has to institutionalising altruism when the Attlee Government created the National Health Service. As we have heard already, it was shaped by that man of genius and brilliant word power, Aneurin Bevan, who the noble Lord, Lord Morgan, once aptly described as “an artist in the use of power”. Its core principle was the pooling of human risk and financial resource—that the National Health Service should be taxpayer funded and free at the point of delivery—which has been sustained by every Government since.

The National Health Service was, and is, one of those national banners around which my generation rallied, as it has served us since we were in our cradles. No doubt we will still laud it as it eases us towards our graves. Talking about the welfare state in 1948, Nye Bevan said to his Parliamentary Private Secretary, Barbara Castle, who recorded it for me in a television interview 20 years ago:

“Barbara, if you want to know what all this is about, look in the perambulators”.


Given our average age, that encompasses many of us in the Chamber—we very fortunate children of the early post-war period.

Let us go back to vesting day 70 years ago. More anxiety was lifted off more shoulders on 5 July 1948 than possibly any other single day in British history. It was an extraordinary day. The creation of the NHS was a declaration of great national purpose. Achieving it over seven decades has been freighted from the beginning by the core problem that we have heard much about this afternoon: demand has always outrun the funds available to meet it. We now have a golden chance to tackle that. Let us rally once again around the banner of the NHS, the flag that we have rallied around all our lives.

In this vexing era, when we torture ourselves daily with our differences over Brexit, perhaps here at last is a consensus that is there for the taking. I dearly hope that it will be taken, shaped by that rigorous, realistic national debate of which the noble Lord, Lord Winston, spoke so forcefully. We owe it to the founders of 1948 and the generations who have devoted their professional lives to this extraordinary institution over the past 70 years. This is an hour for seizing.

Health and Social Care Bill

Lord Hennessy of Nympsfield Excerpts

Wednesday 8th February 2012 Lords Chamber

Moved by

[Lord Hennessy of Nympsfield]

6: After Clause 2, insert the following new Clause—
“The Secretary of State’s duty as to the NHS Constitution
After section 1A of the National Health Service Act 2006 insert—“1AA Duty as to NHS Constitution
“(1) In exercising functions in relation to the health service, the Secretary of State must have regard to the NHS Constitution.(2) In this Act, “NHS Constitution” has the same meaning as in Chapter 1 of Part 1 of the Health Act 2009 (see section 1 of that Act).””

[Lord Hennessy of Nympsfield]

I shall speak also to Amendment 150, which is in my name on the Marshalled List. These amendments are a product of the conversations chaired by my noble friend Lord Laming, designed to bring the highest possible level of consensus to what the noble Earl, Lord Howe, calls the suite of clauses dealing with the accountability of the Secretary of State. I am very grateful to my noble friend for his sensitive chairmanship of the discussions and to the Minister for generously accepting the argument—that the special essence of the National Health Service as distilled in the NHS constitution be enshrined in the Bill.

With this new status, the NHS constitution will shine even more, both as a beacon for all involved in healthcare, whatever their place in the proposed new mixed economy of service provision, and as a statement of enduring values, which occupy such a central place in how we wish our services to be undertaken and how we conceive of ourselves as a people.

I shall not detain your Lordships long, as I am confident that these amendments, for all the friction and division that other clauses have generated, are ones that embrace the views of the vast majority of your Lordships as they do the country they serve. But I must also express my gratitude to the noble Lord, Lord Darzi, and his colleagues in the last Labour Government, for commissioning the wide consultation whose streams of thought fed into the NHS constitution when it first appeared in January 2009. It managed to contain the key principles in seven well worded paragraphs, which I shall not recite as your Lordships have the text to hand and will be familiar with its ingredients.

The Bill, when an Act, will take a great deal of bedding down, and it will take the second coming for the rifts between the political parties and the anxieties expressed by so many health professionals to be assuaged—and perhaps not even then. However, with the NHS constitution in its prominent place towards the top of the statute, we shall have a touchstone, not just for aspiration and inspiration but for behaviour and conduct, a shared talisman for the tougher moments when the implementation of this Bill throws up its inevitable problems and controversies. When we find a lustrous patch of consensus on the NHS’s road from 1948, as represented by the NHS constitution, we should cherish it through thick and thin, for we are never better as a country than when we concentrate on those things that unite us rather than divide us. I beg to move.

[Baroness Thornton]

My Lords, I am very pleased to put my name to this amendment and I congratulate the noble Lord, Lord Hennessy, on his tact and diplomacy in getting us to this point, and in getting agreement to have the constitution mentioned in the Bill, and in such a prominent part of it. In preparing a few supportive remarks, I had a look at the constitution because I was working for my noble friend Lord Darzi in a similar role to the one the noble Baroness, Lady Northover, has—as his support and his Whip—when we were working towards the constitution, and when it was discussed and adopted across government and Parliament.

The importance of having it in the Bill is there in various key parts of the constitution, which are worth mentioning on the record here because we need to remember them as we move forward to discuss this Bill in all its glory in the next five or six weeks, or however long it takes us. The constitution says:

“The NHS is founded on a common set of principles and values that bind together the communities and people it serves—patients and public—and the staff who work for it”.

It goes on to say that it,

“establishes the principles and values of the NHS in England. It sets out rights … and pledges which the NHS is committed to achieve”.

It says:

“All NHS bodies and private and third sector providers supplying NHS services are required by law to take account of this Constitution in their decisions and actions”.

That is a very important part of why this needs to be in the Bill.

The final part which I would like to draw to your Lordships’ attention is point 6 of the guiding principles in the constitution, which is a commitment,

“to providing best value for taxpayers’ money and the most effective, fair and sustainable use of finite resources. Public funds for healthcare will be devoted solely to the benefit of the people that the NHS serves”.

That is exactly right. It is not the shareholders of companies and not individuals who might seek to make a profit but the people whom the NHS serves, and the taxpayer.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, I am very grateful to the noble Lord, Lord Hennessy, for tabling these important amendments and for the eloquent way in which he introduced them. As he said, they seek to require the Secretary of State to have regard to the NHS constitution when exercising his functions in relation to the health service. I say to him in all sincerity that I very much welcome his contribution throughout this debate. I identify myself entirely with the enthusiastic remarks that he addressed towards the constitution itself, which is a most succinct and inspiring document, and I agree with him that we have reached a very workable and satisfactory outcome to the question that he originally posed to me and to the House.

I fully support these amendments. It is right that we continue our commitment to the principles set out in the NHS constitution. I hope that these amendments together provide noble Lords with reassurance of the Government’s continued commitment to the core principles and values to which the noble Lord and the noble Baroness have referred. I commend them to the House.

[Lord Hennessy of Nympsfield]

I am grateful to the noble Baroness, Lady Thornton, and the noble Earl, Lord Howe, for their kind remarks. Earlier, a noble Lord—I forget who—thought we were mired in the treacle of consensus. All I can say is: long may we be stuck in this particular pot of treacle.

Amendment 6 agreed.

Health and Social Care Bill

Lord Hennessy of Nympsfield Excerpts

Tuesday 25th October 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, may I briefly address the proposal put forward by the noble Baroness, Lady Thornton? She has made a considerable contribution to the discussion in this House about the health services; not least by organising an impressive series of seminars that were attended by many Members of this House, from all parties and also from the Cross Benches. We are extremely grateful for this.

I am moved very little by the preamble, in the sense that the central issue behind it, which I fully share—that is to say, the clear responsibility of the Secretary of State for a comprehensive health service free at time of need—is primarily, in fact, already embodied in the debate we are about to have on the first group of amendments after the amendments on education and training. The way that this has been addressed by the noble Baroness, Lady Thornton, herself but also by other members of this House, not least the noble and learned Lord, Lord Mackay of Clashfern, provides the basis for a very satisfactory, detailed and careful consideration of what the role of the Secretary of the State is.

We know that there are still fears about ambiguity. On this I agree with what the noble Baroness, Lady Thornton, has indicated. These fears have been very strongly outlined: first, by the Future Forum which said in its report that it had concerns about the accountability of the Secretary of State and, secondly, in the brilliant and concise report of the Constitution Committee, an all-party committee of this House. The committee pointed to its concerns about whether the responsibility and accountability of the Secretary of State emerged sufficiently clearly, and it gave a very impressive argument to the effect that some doubts remain about the position.

Since that time, of course, there have been concerns—rightly so—about some of the knock-on effects of removing accountability of a clear kind from the Secretary of State. All through this Bill, there are situations where the Secretary of State might be or might not be involved. I shall give two examples. The first is about the possibility of conflict between Monitor and the NHS Commissioning Board and how that is to be resolved, where one might suppose that the Secretary of State would be the ultimate decider. The second is on the question of what happens if there is a major emergency in the country of a health nature and whether the public would not, in fact, expect the Secretary of State to be the ultimate source of accountability.

My feeling is that it is better to address these issues very clearly as each one comes up, and to set out in detail, therefore, what the precise responsibilities of the Secretary of State are. Certainly, if one wants simply to assert—which many of us obviously fully understand—a concern and a liking for the NHS, the Secretary of State’s responsibility was reiterated and reaffirmed some time ago after intervention by my right honourable friend in another place, Mr Nicholas Clegg, and others.

This is not an issue for which we should hold up the whole of the Committee proceedings but, in assessing once again the commitment of many of this House to the NHS, it is certainly not objectionable. For the reasons I have given, however, it is perhaps not wise to detain ourselves on this issue at the moment.

I would add two other problems. The wording of the preamble before Clause 1 is mostly fine, but frankly I am a bit worried about subsection (3). One thing we must not do is, as it were, encompass the NHS in a form of unchangeability when all of us know that major changes have to be made within its structure. Therefore, subsection (3) could be a rigidification of the situation. Having said that, however, I believe that we should now move on from this issue to look at the most clear, legally expressed considerations of what should be the clear and accountable responsibilities of the Secretary of State.

[Lord Hennessy of Nympsfield]

My Lords, having suggested during the Second Reading debate that your Lordships might consider the value of a preamble to the Bill which captures the ethos and purpose of the National Health Service, I was grateful to the noble Earl, Lord Howe, in his letter of 20 October to noble Lords, for describing it as “an interesting idea”. The Minister went on to say that,

“preambles have fallen out of use in modern-day legislation, partly because there is a risk that they could lead to unintended consequences, and also because it is considered bad legislative practice to include words in a Bill that have no clear legislative purpose or effect”.

I note and accept that preambles have fallen into disuse, but I continue to see the value of capturing the NHS ethos and purposes firmly right at the top of the legislation, which is why I welcome the proposed amendment in the name of the noble Baroness, Lady Thornton, as a surrogate for a preamble.

I am especially pleased by the NHS constitution occupying a prime position in the amendment’s attempt to capture the principles of the health service in England. The first two principles expressed in the NHS constitution must continue to suffuse the whole enterprise and its legislative underpinnings. The first principle declares:

“The NHS provides a comprehensive service, available to all irrespective of gender, race, disability, age, sexual orientation, religion or belief. It has a duty to each and every individual that it serves and must respect their human rights. At the same time, it has a wider social duty to promote equality through the services it provides and to pay particular attention to groups or sections of society where improvements in health and life expectancy are not keeping pace with the rest of the population”.

Principle 2 explains quite briefly that:

“Access to NHS services is based on clinical need, not an individual’s ability to pay. NHS services are free of charge, except in limited circumstances sanctioned by Parliament”.

Faith in those principles runs deep in our country, powerfully and, very largely I think, consensually. They deserve to be emblazoned at the top of this Bill through a clear reference to the NHS constitution. In fact, apart from the words “not the market”, the amendment before us could, I suggest, represent a common bonding for our deliberations, however fiercely contested will be many of the clauses to come, just as the sustenance of a comprehensive National Health Service free at the point of delivery is one of, or perhaps the most, tenacious common bondings of our people and our country.

[Baroness Murphy]

My Lords, one cannot help but be moved by the commitment of the noble Lord, Lord Hennessy. In view of the public discussion that has gone on outside this Chamber, we all welcome a recommitment to the principles of the NHS constitution. But I have a number of really serious concerns about the amendment as it stands. For a start, remembering back to the 2009 Act, the whole point about the NHS constitution is that it was not just a set of airy-fairy principles, it concerned how those principles were to be put into effect. To extract these crucial principles, which along with the noble Lord, Lord Hennessy, I wholly support, and put them separately at the beginning of the Bill is to confuse the issue and, I think, to leave us open to further legal challenges over what the NHS is about. The NHS constitution stands; that it must stand is reiterated in the Bill, and therefore we should not seek to water it down in any way.

The second part of the amendment again does not quite reflect what we have tried to do, as we discussed the development of this Bill, to ensure that the NHS is about improving quality. It is not about accepting quality, equity, integration and accountability as is; it is about continuous change leading to improvement. Again, I think that that is not reflected in subsection (2), which is very confused, and I really do not understand the phrase at the end, “not the market”. What does that mean, and how does it relate to the,

“person or body performing functions”?

The third subsection, about the primacy of patient care, is crucial. We want to see the primacy of patient care throughout the Bill. Again, however, as it stands, the amendment would rule out structural and financial reorganisations, for example to improve the formula for allocation of resources to local clinical commissioning groups. It would rule out the decisions that we want local groups of commissioners to make regarding reconfiguration. It would stultify the development of an improved health service. I really think that that is confusing.

As for the Nolan principles, I think that all of us would say that they are crucial. But they are in the Bill as it is, as they were in every NHS Act recently. Standards in public life are something that everybody who is in public service must be committed to, and they are in employees’ terms and conditions of service. These are desirable things, and I am very sympathetic to the desire to make a comprehensive statement of the commitment of all sides of this House to a universal and comprehensive NHS. However, this amendment is not it.

--- Later in debate ---

[Lord Mackay of Clashfern]

Yes, precisely; I tried to say that when I referred to the 2006 Act. The passage in the 1946 Act on which my noble and learned friend Lord Woolf relied as Master of the Rolls in Coughlan was the first part—that is, the duty to promote a comprehensive health service, free at the point of need. That was its function. It was in the nature of a preamble: the first part of the first provision of the Act. That was what my noble and learned friend Lord Woolf regarded as enforceable. In relation to Amendment 1, I said that that section had been demonstrated to be enforceable in law, which one could not say for sure about the amendment that the noble Baroness, Lady Thornton, promoted as the first clause of this Bill. Of course, the provision referred to by my noble and learned friend Lord Woolf is maintained in the Bill.

[Lord Hennessy of Nympsfield]

My Lords, at Second Reading, the noble Earl, Lord Howe, indicated that he wished to put the constitutional position and accountability to Parliament of the Secretary of State beyond doubt. In his letter to your Lordships of 20 October, he repeated his commitment, writing that:

“We are willing to listen and to consider the concerns that have been raised, and make any necessary amendment to put it beyond doubt that the Secretary of State remains responsible and accountable for a comprehensive health service, which we all want to see”.

Perhaps the simplest way of achieving this is to sustain the requirements of the National Health Service Act 2006, as the amendment in the name of the noble Baroness, Lady Williams of Crosby, seeks to do.

If successful, this amendment would certainly extend the legislative DNA captured in the pioneering National Health Service Act 1946. However, it can be argued—as it has been by the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Warner, and others—that the reality of the Secretary of State’s position since the late 1980s requires a reworking of the accountability of the Secretary of State that reflects the fact that successive incumbents have not been direct providers of services for over 20 years. For that reason, a differently crafted amendment, such as the one in the name of the noble and learned Lord, Lord Mackay of Clashfern, would be more fitting.

As the Minister has said, the test is the need for this Bill to be unambiguous in capturing the Secretary of State’s core constitutional position and accountabilities at the very apex of the NHS, where policy, administration and money meet. I have great sympathy with the impulses behind the amendment tabled by the noble Baroness, Lady Williams, but I also think that subsections (2)(a) and (2)(b) of the amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, make the Secretary of State’s accountabilities unambiguous. Therefore, I profoundly hope that the Minister will be able to accept the amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, as Parliament’s instrument for genuinely putting the matter beyond doubt.

[Lord Harris of Haringey]

My Lords, I apologise to the House because at Second Reading I inadvertently failed to declare an interest, as I have now been reminded by the Mirror, that I am an adviser to KPMG. I regret that it had slipped my mind as I have never advised it on anything to do with health or any of its global interests that include advising on health matters. I apologise to the House and I hope I have now corrected the omission.

I rise to speak to the amendment in the name of the noble Baroness, Lady Williams of Crosby, because this is an issue that requires greater clarity, and the debate and discussion that has already taken place in Committee this evening demonstrates why that is so. As my noble friend Lord Warner has reminded us, Professor Malcolm Grant, the newly appointed chair of the national NHS Commissioning Board, has made clear what appears to be the Government’s intention with regard to the role of the Secretary of State. I assume that he did so under advice, because you do not take on a role like the chair of the NHS Commissioning Board without extensive discussions with Ministers and civil servants. He must have been briefed on the matter and quite clearly the intention is to separate out the day-to-day responsibility and answerability of the Secretary of State. There has to be some clarity on this point.

The noble Lord, Lord Newton, has pointed out that the Secretary of State de facto will be held to account by Parliament because this is about the way in which a budget of £120 billion is spent and disposed of. However, the reason we need—and the public will expect—clarity is that if the Secretary of State’s role is simply to account to Parliament that a sum of money has been passed to the NHS Commissioning Board, that will not be sufficient in holding the Secretary of State to account as to whether that sum of money is the appropriate sum and what the consequences are of not making available appropriate sums of money. That is why I suspect it becomes important.

The noble Lord, Lord Hennessy, has suggested that perhaps the form of words that the noble Baroness has used needs refreshing, because they hark back to the Bill 60 years ago. He suggests that the amendment of the noble and learned Lord, Lord Mackay of Clashfern, may be better suited to the purpose. However, I have some reservations about the wording used by the noble and learned Lord, Lord Mackay, in that he talks about ultimate responsibility. We may have an inkling about what ultimate responsibility means, but I wonder where else in legislation a phrase such as this is used. I defer of course to the noble and learned Lord’s far superior knowledge of the law. However, in my limited experience in this House, I have never before come across the words “holds ultimate responsibility to Parliament”. It seems a very strange usage and I think that there needs to be greater clarity and understanding about what it means. That is why it might be better to revert to the wording chosen by the noble Baroness, Lady Williams. It is tried and tested and at least we understand it.

We also have to recognise that the noble and learned Lord’s amendments helpfully set out the intervention powers and the circumstances in which they will be part of the Secretary of State’s duties, which is all very well. However, intervention powers, by their very nature, occur after the event. Something has already gone wrong.

In our earlier debate—I hesitate to hark back to it—about the role of Health Education England, the Minister told us that the Secretary of State would continuously hold Health Education England to account. However, that is different from having responsibility. Again, we need to be clear on who is answering for that. How will that be done? The fact that the Minister had to stand up and tell us that there are intervention powers, but that of course on a day-to-day basis he would be holding Health Education England to account, suggests that the current form of words in the Bill is simply not accurate.

The final test that your Lordships need to consider is: what do the public expect? The public’s expectation is that government is responsible for what happens in our health service; and unless there are locally elected officials who are responsible for what happens at a local level, they will expect their elected Government to be responsible, and that means the Secretary of State.

Health and Social Care Bill

Lord Hennessy of Nympsfield Excerpts

Wednesday 12th October 2011 Lords Chamber

[Lord Hennessy of Nympsfield]

My Lords, recasting the health service arouses more sensitivities than any other reform in our national life, as this Chamber has witnessed over the past 24 hours. Why? Because the National Health Service touches more of our people more intimately than any other state-funded activity. As the great RH Tawney once wrote:

“Only those institutions are loved which touch the imagination”.

No institution surpasses the NHS in meeting the Tawney criterion. No institution ever has, since 5 July 1948, the day the service came into being, lifting more anxiety off more shoulders than any other social reform in our history. That moment was the closest we have ever come to institutionalising altruism.

In Tawney terms, for 63 years it has been impossible to conceive of our country without the NHS as a key ingredient in the way we imagine ourselves. The creation of the health service was and remains the most lustrous achievement of what historians call “Mr Attlee’s Settlement”, part of the late war/early post-war British New Deal, although we never called it that, which embraced Rab Butler’s Education Act 1944 and the national insurance legislation, as well as the National Health Service Act 1946. And yet the tension that ripples through the Bill before us today flows from its attempt to sustain traces of those post-war principles while injecting the stimulus of markets, associated with that other great politico-economic weather-maker of our times, the noble Baroness, Lady Thatcher.

My own instincts are more towards the Attleean end of the spectrum on health matters but I understand and respect the motives of those possessing stronger market impulses than mine, although few see health as an area where the market should rip without inhibition. Even that most thoroughbred of free marketeers, Mr Enoch Powell, as Health Minister in the early 1960s, did not. Asked by his biographer, Simon Heffer, about the first big post-war hospital building programme, whose planning and funding he oversaw, Mr Powell replied,

“The people have willed it. Therefore, they must have it”.

I suspect there are many in our country who would wish Parliament now to find a way of fusing the best in both instincts—of sculpting an approach that does not involve the Secretary of State for Health abandoning his traditional role as the ultimate and direct guarantor of a comprehensive service free at the point of delivery. Equally, I think, the public wish the Secretary of State to retain his function as accounter-in-chief to Parliament for the sustenance of that principle and the care it distributes to all across England, whatever their location, their needs or their socio-economic status.

For these reasons, I am sure your Lordships’ House will apply the closest scrutiny to those clauses of the Bill which incorporate the constitutional functions of the Secretary of State. Your Lordships’ Select Committee on the Constitution, as we have heard many times in this debate, has raised serious concerns about both the legal status of the Secretary of State in the Bill before us and about the strength of his accountability to Parliament. I share those worries.

The Bill, too, needs to sustain the original DNA of the wartime Beveridge report of 1942 in which the provision of healthcare stood out as one of the,

“five giants on the road to reconstruction”—

ignorance, idleness, squalor, want, disease. Central to this scheme, Beveridge declared, was that,

“medical treatment covering all requirements will be provided for all citizens by a national health service organised under the health departments”.

Clause 1 of the National Health Service Act 1946 gave that crucial Beveridge-minted strand of institutional DNA statutory form.

I do not think our people wish us to abandon the Beveridge principle. Might it not be possible, if your Lordships support the idea of a Special Select Committee to examine the Secretary of State’s powers, constitutional functions and accountabilities, to find a form of drafting which meets those concerns? Perhaps Parliament could rediscover the value of that old device of a preamble to a statute which sets out the measure’s ethos and purpose. The current NHS constitution, in fact, carries a “preamble”, followed by a set of “principles” which are eloquent in this regard.

For these reasons, I urge noble Lords to support the amendment in the name of my noble friend Lord Owen to enable the creation of a Select Committee to run concurrently with the Committee stage of this Bill with a very tight remit and a requirement to report before Christmas. I do so not in the spirit of wrecking this Bill but of improving it. I am grateful to the noble Earl, Lord Howe, and the Leader of the House, the noble Lord, Lord Strathclyde, for the generous and courteous spirit in which they conducted their discussions with myself and the noble Lord, Lord Owen. I am grateful, too, to Mr Andrew Lansley for sending me a letter yesterday trying to assuage the anxieties about his proposed powers I expressed during an interview on the “Today” programme.

The NHS, to fulfil its purposes, needs to flourish and to work within the widest possible consensus, buttressed by the confidence of those it exists to serve and sustained by a Secretary of State whose constitutional position leaves him with the unambiguous duty of securing high-quality healthcare for all. I was encouraged yesterday by the pledge of the noble Earl, Lord Howe, to put the Secretary of State’s responsibilities beyond doubt, though his words did jar with the thrust of his reply to the Constitution Committee’s report.

I stress again that my noble friend Lord Owen and I are not in the business of wrecking. This is a very tight proposal for a bespoke Select Committee. I hope the Secretary of State’s powers will be put beyond doubt. A specially tasked Select Committee for the purpose will be the best instrument for achieving that. I urge your Lordships to support my noble friend Lord Owen’s amendment.