Health and Social Care Bill

Debate between Lord Mackay of Clashfern and Lord Hennessy of Nympsfield

Tuesday 25th October 2011 Lords Chamber

[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.