Health and Social Care Bill

Lord Hunt of Kings Heath Excerpts

Wednesday 21st December 2011 Lords Chamber

[Earl Howe]

I note the noble Lord’s liberality of spirit in this Christmas season. The problem is that it is not up to him, or indeed me as an individual, to cut across the practice which has been laid down across government. However, I have undertaken to look further into this question and I shall indeed do so.

[Lord Hunt of Kings Heath]

My Lords, it is of course open to my noble friend to simply seek access to papers that he was given advice on as a Minister. I suggest to my noble friend that perhaps he should ask to see those papers. Having done this myself, I know that you have to see them within the department. Usually you get a cup of coffee from the Permanent Secretary’s office, and you cannot take the papers away, but you can summarise and make notes. If the department is not going to make the papers available, perhaps my noble friend would care to do that.

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[Baroness Masham of Ilton]

My Lords, I, too, support the amendment. Having supported the Bill of the noble Lord, Lord Stevenson, it would seem wrong not to do so. I hope that the Government can speed up this legislation.

[Lord Hunt of Kings Heath]

My Lords, this is a bit like Lords reform. If you deal with the bells question, you then have the Bishops. Is this part of a process of disestablishing the Church of England? I hope not.

We debated this in 2007 during the passage of the Mental Health (Amendment) Act. At the time, on behalf of the Government, I said that it was a matter for the House of Commons and that it was best that the Commons dealt with it. The fact is that the House of Commons has not dealt with it in four years. I hope that the Minister will say that the Government will accept this amendment. I am sure that the noble Baroness will find support on Report if not.

I have been looking at the draft House of Lords Reform Bill and I have quickly skimmed Part 7, which covers the whole range of disqualification of Members. I might have misread it, but I cannot find any reference to disqualification on the grounds of mental illness. Quite clearly, the Government do not think that it is relevant to an elected second Chamber. It certainly should not be relevant to the House of Commons.

[Baroness Northover]

My Lords, I remind the Committee that the Government are publicly committed to the repeal of Section 141 of the Mental Health Act 1983. On 3 February 2011, the Government announced that it would be repealed when a suitable legislative vehicle became available. Section 141 sets out a process by which an MP’s seat is vacated if they are authorised to be detained under mental health legislation for a period of six months or more. There is, however, no parallel provision for the automatic disqualification of those who might be hospitalised or on sick leave with physical ailments for six months or more, as the noble Baroness has indicated, even if those people might be equally incapable of fulfilling their duties. The noble Baroness is absolutely right in that regard.

Even those who are imprisoned are not automatically disqualified unless their sentence is more than 12 months. This is an unwarranted discrimination against those with mental illness. With the repeal of Section 141, being detained in hospital for mental health reasons would no longer lead to the automatic loss of a MP’s seat.

However, the Government believe that the most suitable vehicle for this reform would be a stand-alone Bill, allowing both Houses the chance to debate this important issue. There are some outstanding questions on the extent and effect of repealing this provision, which we are still discussing with the devolved legislatures. The Government do not feel it is appropriate to accept this amendment while these questions remain unanswered.

The Private Member’s Bill of the noble Lord, Lord Stevenson, the Mental Health (Discrimination) Bill, had its Second Reading on 25 November 2011. The Bill aims to repeal various pieces of legislation that discriminate against the participation of those with mental health conditions in public life, including Section 141. At its Second Reading, the Government indicated their support for this Bill and we continue to support the Bill as an appropriate means for removing several pieces of discriminatory legislation.

We have already announced our intention to repeal, setting out the Government’s position that this sort of discrimination is not acceptable. While I applaud the noble Baroness’s intention, this important reform should be part of a stand-alone Bill, not inserted here at Committee stage. I am sure that noble Lords will agree that the issue should be given the parliamentary attention it deserves, and I hope that the noble Baroness will be prepared to withdraw her amendment.

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[Lord Kakkar]

My Lords, I rise to move the amendment in my name and that of my noble friend Lord Patel, who sends his apologies to the Committee. He is strongly enthusiastic about the amendment but regrettably cannot be here. The amendment would introduce a new clause to provide for a review and scrutiny of the operation of the Act.

The noble Earl, in responding to the Second Reading debate, was kind enough to deal with the matter I had raised regarding post-legislative scrutiny. Your Lordships’ House has determined that careful post-legislative scrutiny should be considered because it is of value and importance for all complex Bills. The detailed Committee stage which has attended the passage of this Bill in your Lordships’ House has clearly shown that there has been considerable anxiety about the potential implications and operation of what will eventually be the Health and Social Care Act. It is only right that a Bill of this complexity should be subjected to post-legislative scrutiny. This can be undertaken only if appropriate information is made available to both Houses of Parliament.

The purpose of exploring the opportunity for the Government to consider the issue at this stage is to determine whether the noble Earl—in addition to confirming the Government’s commitment to scrutiny of the Act, if Parliament decides to pass it—would consider initiating post-legislative scrutiny earlier than the three years which he kindly indicated when answering the Second Reading debate. A range of between three to five years is the normal period in which scrutiny might be considered for an Act once Royal Assent had been received. However, in view of many of the issues that have been raised, it would seem appropriate to attend to the matter of scrutiny earlier.

It might be argued that having scrutiny one or two years after enactment would be a little too early, but many of the new mechanisms and arm’s-length bodies being established to deliver the purpose of the Bill are already available in shadow form. For example, the chief executive-designate of the NHS Commissioning Board has already been appointed. The chairman has been appointed and the board is starting to make other important appointments and to deal with its structure so that when the Act comes into operation the board will be in a position to start its work. It means that, after a year, we should all be able to perform reasonable scrutiny.

With regard to clinical commissioning groups, pathfinder commissioning groups have already been established. They are starting to develop the alliances and relationships in their areas and localities that will allow them to become fully operational at the time that the Bill proposes. Therefore, the period of finding their feet has already been established.

A commitment to both rigorous scrutiny after enactment and early, formal post-legislative scrutiny will allay a lot of anxieties and provide your Lordships and the other place with reassurance that if there were to be unintended consequences associated with the Bill, they may be identified earlier. If other elements of legislation were required to ensure that the Bill’s objectives could be fully achieved, given that the Government are considering a further Bill to deal with matters such as education, research and social care in the next Session, scrutiny of the Bill could inform what legislation might be added to that Bill. I beg to move.

[Lord Hunt of Kings Heath]

I rise to support the noble Lord. Earlier today, he made a very pertinent point on Lords reform, and this one seems equally pertinent. Before I do so, perhaps I may take this opportunity to say that my noble friend Lady Gould has just vacated the Deputy Speaker’s seat. That was her last session, and I wanted to say to her—I am sure on behalf of the whole House—what a wonderful job she has done. She has accompanied us through many pieces of legislation, often very late at night, always with tolerance and very efficiently, as befitting a former fearsome organiser of the Labour Party, if I may say so.

[Earl Howe]

And never more smoothly or efficiently than in today's Sitting.

[Lord Hunt of Kings Heath]

It would be churlish, then, to spoil the atmosphere by commenting overall on the Bill because, as the noble Lord suggested, it is open to us to have a kind of Second Reading speech, but I will resist—to the benefit of noble Lords opposite, if not my noble friends.

The noble Lord put it very well. The fact is that the reforms are being enacted; they are taking place at this moment. The Government have not waited for legislation. Primary care trusts have effectively been abolished. The new system is coming into being. We have shadow clinical commissioning groups, although they cover much larger areas than originally envisaged, so it would be quite right and proper for early post-legislative scrutiny to take place. Because the changes go to the heart of the National Health Service, I should have thought that it would have been useful to have an annual report and to allow Parliament to debate it.

I invite the noble Lord, Lord Kakkar, to go one step further. He will know that the noble Earl, Lord Howe, has always been fond of sunset clauses. He moved many such amendments when in opposition. I should have thought that the Bill deserves a sunset clause. I would give it two years, because then, if the coalition survives that long, the noble Earl will be back to put right all the problems that he is now enacting.

On that note of Christmas spirit, I invite the noble Earl to accept the noble Lord’s amendment.

[Earl Howe]

My Lords, if the noble Lord, Lord Hunt, is addressing us in the guise of Christmas spirit, it is well disguised from most of us.

However, it may be worth reflecting at this juncture that this is the 41st day that the Bill has been debated on the Floor of this House or that of the other place—a quarter of all sitting days in this calendar year. I thank all parliamentarians, especially noble Lords, who participated in subjecting the Bill to such unprecedented scrutiny. It is a better Bill as a result; the Government are better informed as a result; and I look forward to our further debates in 2012.

I completely agree with the noble Lord, Lord Kakkar, that parliamentary scrutiny of legislation and the actions of government are of paramount importance. The Bill has, as I said, received a huge amount of parliamentary scrutiny during its passage, and I have no expectation that this will stop following Royal Assent—and nor should it. Ministers will continue to provide information to Parliament—for example, in response to Parliamentary Questions and Select Committees. I am sure that we will be providing a lot of information both on the implementation of the Bill and on health and social care more widely in the months and years ahead.

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Amendment 354 withdrawn.

[Lord Hunt of Kings Heath]

My Lords, perhaps I may take this opportunity to thank the noble Earl, Lord Howe, for his remarks about the conduct of the Committee stage of the Bill. I also express my thanks to him and to the noble Baroness, Lady Northover, for the way in which they have responded to the scrutiny debate, and I also thank the Bill team. I fear that Christmas will be cancelled because they are going to be writing so many letters to Members of your Lordships’ House. We look forward to Report.

Clauses 302 and 303 agreed.