Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Tuesday 11th October 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I agree with other noble Lords who have expressed the view that the Bill has been transformed during the pause. We should now welcome it in principle as offering a secure future for the National Health Service in the face of ever increasing demand, as defining a clear but decentralised structure, as making great progress in integrating health and social care, and as concentrating decision-making about patient care in the hands of clinicians and patients, where it should be.

However, the Bill needs further improvement. In particular, perhaps I, too, may say a few words about the duties of the Secretary of State, especially in view of the very wide currency given to the published legal opinions obtained by 38 Degrees and in view of the report of your Lordships’ Constitution Committee and the Government's recent response to it. I welcome the indication from my noble friend the Minister this morning regarding flexibility in this area, which seemed strangely at odds with his letter to the noble Baroness, Lady Jay, last night.

Although much of the strictly legal analysis of 38 Degrees’ counsel stands up, his implied conclusions on the political effect of his advice are overstated. The Bill does not threaten the notion of a National Health Service, nor does it deprive the Secretary of State of the ultimate responsibility for the NHS—particularly with regard to three features of the Bill’s proposals: first, the annual mandate to the Commissioning Board; secondly, the power to make regulations, the “standing rules”; and, thirdly, the power to intervene in the event of “significant failure” by the board or Monitor.

It is true that the duties of the Secretary of State are altered and that a duty to promote a comprehensive health service does not amount to a duty to provide services directly, but it is also true that direct provision has not been the practice for many years. Moreover, the Bill is a strongly decentralising measure—indeed, that is one of its best features—and you would expect such a change. However, a duty,

“to secure that services are provided”,

remains in the Bill and, in my judgment, is no less potent than the duty in the 2006 Act to “secure the provision” of services. The problem with the proposed duty is that it is to be performed,

“in accordance with this Act”,

and that includes, “in accordance with the duty to promote autonomy”.

It is the “duty to promote autonomy” provisions which are my principal concern. Promoting autonomy is of course good. As the noble Baronesses, Lady Bottomley and Lady Williams—in their different ways—and others pointed out, the Secretary of State should avoid micromanagement and generally allow the board, commissioning bodies and Monitor to get on with their jobs. However, the autonomy provisions weaken the force of the duty to secure that services are provided, because they would make a failure by the Secretary of State or the board to intervene very difficult to challenge by judicial review except in an extreme case. Generally, the Secretary of State could simply defend himself against any challenge by pointing to his duty to promote autonomy. That is why 38 Degrees’ counsel calls this a “hands off” clause.

In this I regret that I cannot agree with the passage in my noble friend’s letter to the noble Baroness, Lady Jay, which states:

“The duty of autonomy will never prevent the Secretary of State intervening in the interests of the health service”.

I fear that it could. Deleting the two duties to promote autonomy would not materially weaken the Bill or do violence to its intention, because the Bill's very structure builds in decentralisation and autonomy. I hope that the Government will in due course accept the force of these concerns and rebalance the structure proposed in the Bill accordingly.

Perhaps I may mention two further possible improvements to the Bill. The first concerns the regulations, or standing rules. As drafted, the Bill is unclear as to whether it is mandatory to make such regulations. One subsection of Clause 17 suggests that they must be made, while others do not. The standing rules will be of great importance. I therefore suggest that provision be made that regulations should be made at specified intervals and, further, that Parliament should have the extra opportunity of scrutinising the draft regulations by their being referred to the Health Committee for advance consideration before they are laid before Parliament as a whole.

The second point is that the Bill removes the powers in Sections 7 and 8 of the 2006 Act for the Secretary of State to give specific directions to individual bodies within the NHS. What remains is a power to intervene in the case of significant failure by the Commissioning Board or by Monitor, each of which has wide powers of intervention. I am concerned that the bar may be set too high against the Secretary of State’s intervention, because in each case the significant failure concerned has to amount to a failure by the board or by Monitor to perform its functions at all or, at any rate, to perform them properly. Failure to perform them in a way that the Secretary of State considers to be in the interests of the NHS would not be enough. I regard that as an important lacuna. Some amendment of those provisions, too, would be a welcome improvement.

In the Third Reading debate in the other place, the Minister, my honourable friend Mr Paul Burstow, undertook,

“to offer clarification or make amendments to put beyond legal doubt the fact that the Secretary of State remains responsible and accountable for the comprehensive health service that we all want to see”.—[Official Report, Commons, 7/9/11; col. 404.]

It is now for your Lordships' House to ensure that that aim will be achieved.